EXECUTION COPY
GREENPOINT CREDIT, LLC,
CONTRACT SELLER AND SERVICER,
BANK ONE, NATIONAL ASSOCIATION,
TRUSTEE
and
FIRST UNION NATIONAL BANK,
CO-TRUSTEE
POOLING AND SERVICING AGREEMENT
(Series 2001-1)
Dated as of ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Manufactured Housing Contract Trust
Pass-Through Certificates, Series 2001-1
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS......................................................1
Section 1.01 Terms.......................................................1
Section 1.02 Construction...............................................30
ARTICLE II CONVEYANCE OF CONTRACTS, REPRESENTATIONS AND WARRANTIES.........30
Section 2.01 Conveyance of Contracts....................................30
Section 2.02 Filing and Assignment......................................31
Section 2.03 Acceptance by Trustee and Co-Trustee.......................32
Section 2.04 Trustee Receipt of Documents...............................32
Section 2.05 Representations and Warranties Regarding the Servicer......33
Section 2.06 Covenants of the Contract Seller, Trustee and Servicer.....34
Section 2.07 Authentication and Delivery of Certificates................34
Section 2.08 Covenants of the Servicer..................................34
Section 2.09 Covenants of the Contract Seller...........................34
ARTICLE III REPRESENTATIONS AND WARRANTIES BY THE CONTRACT SELLER...........35
Section 3.01 Representations and Warranties of the Contract Seller......35
Section 3.02 Representations and Warranties Regarding Each Contract.....36
Section 3.03 Representations and Warranties Regarding the Contracts
in the Aggregate...........................................39
Section 3.04 Representations and Warranties Regarding the Contracts.....40
Section 3.05 Repurchases of Contracts or Substitution of Contracts
for Breach of Representations and
Warranties.................................................40
Section 3.06 General....................................................43
ARTICLE IV ADMINISTRATION AND SERVICING OF CONTRACTS.......................43
Section 4.01 Responsibility for Contract Administration and Servicing...43
Section 4.02 Standard of Care...........................................44
Section 4.03 Records....................................................44
Section 4.04 Inspection.................................................44
Section 4.05 Establishment of and Deposits in Certificate Account.......44
Section 4.06 Payment of Taxes...........................................46
Section 4.07 Enforcement................................................46
Section 4.08 Transfer of Certificate Accounts...........................47
Section 4.09 Maintenance of Hazard Insurance Policies...................47
Section 4.10 Fidelity Bond and Errors and Omissions Insurance...........48
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 4.11 Collections under Hazard Insurance Policies, Consent to
Transfers of Manufactured Homes, Assumption
Agreements.................................................49
Section 4.12 Realization upon Defaulted Contracts.......................50
Section 4.13 Costs and Expenses.........................................50
Section 4.14 Trustee to Cooperate.......................................50
Section 4.15 Servicing and Other Compensation...........................51
Section 4.16 Custody of Contracts.......................................51
Section 4.17 REMIC Compliance...........................................53
Section 4.18 Management of REO Property.................................57
Section 4.19 Reports to the Securities and Exchange Commission..........59
Section 4.20 Annual Statement as to Compliance..........................59
Section 4.21 Annual Independent Public Accountants' Servicing Report....59
Section 4.22 Retitling of Land Home Contracts...........................59
ARTICLE V PAYMENTS, MONTHLY ADVANCES AND MONTHLY REPORTS..................60
Section 5.01 Monthly Advances by the Servicer...........................60
Section 5.02 Payments...................................................61
Section 5.03 Permitted Withdrawals from the Certificate Accounts........64
Section 5.04 Monthly Reports............................................65
Section 5.05 Certificate of Servicing Officer...........................69
Section 5.06 Other Data.................................................69
Section 5.07 Statements to Certificateholders...........................69
Section 5.08 Certificate Insurance Policy; Enhancement Payments.........70
ARTICLE VI THE CERTIFICATES................................................72
Section 6.01 The Certificates...........................................72
Section 6.02 Certificate Register; Registration of Transfer and
Exchange of Certificates...................................73
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates..........76
Section 6.04 Persons Deemed Owners......................................76
Section 6.05 Access to List of Certificateholders' Names and Addresses..76
Section 6.06 Global Certificates........................................77
Section 6.07 Notices to Depository......................................78
Section 6.08 Definitive Certificates....................................78
ARTICLE VII THE CONTRACT SELLER AND THE SERVICER............................78
Section 7.01 Liabilities to Obligors....................................78
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 7.02 Servicer's Indemnities.....................................78
Section 7.03 Operation of Indemnities...................................79
Section 7.04 Merger or Consolidation of the Contract Seller or the
Servicer...................................................79
Section 7.05 Limitation on Liability of the Contract Seller, the
Servicer and Others........................................79
Section 7.06 Assignment by Servicer.....................................80
Section 7.07 Successor to the Servicer..................................80
ARTICLE VIII EVENTS OF DEFAULT...............................................81
Section 8.01 Events of Default..........................................81
Section 8.02 Waiver of Defaults.........................................83
Section 8.03 Trustee to Act, Appointment of Successor...................83
Section 8.04 Notification to Certificateholders.........................83
Section 8.05 Effect of Transfer.........................................83
Section 8.06 Transfer of the Account....................................84
Section 8.07 Servicer Termination Events................................84
ARTICLE IX CONCERNING THE TRUSTEE..........................................84
Section 9.01 Duties of Trustee..........................................84
Section 9.02 Certain Matters Affecting the Trustee......................85
Section 9.03 Trustee not Liable for Certificates or Contracts...........86
Section 9.04 Trustee May Own Certificates...............................87
Section 9.05 Servicer to Pay Fees and Expenses of Trustee, Paying
Agent and Certificate
Administrator..............................................87
Section 9.06 Eligibility Requirements for Trustee.......................87
Section 9.07 Resignation and Removal of the Trustee.....................88
Section 9.08 Successor Trustee..........................................89
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.....................................91
Section 9.15 The Co-Trustee for the Certificate Insurance Policy........91
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TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE X TERMINATION.....................................................92
Section 10.01 Termination................................................92
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.................................................99
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; Extinguishment of Rights.........101
Section 11.12 Purchases Upon Conversion.................................101
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This POOLING AND SERVICING AGREEMENT (Series 2001-1), dated as of
March 1, 2001 (the "Agreement"), is executed by and among 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"), Bank One, National Association, as trustee (together with its
permitted successors in trust, the "Trustee") and First Union National Bank, as
co-trustee (together with its permitted successors in trust, the "Co-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 2001-1
(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:
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.
Aggregate Net Liquidation Losses: With respect to the time of reference
thereto and each Group, the aggregate of the amounts by which (i) the
outstanding principal balance of each Contract in such Group that during such
time of reference had become a Liquidated 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. With respect to the
time of reference thereto and the Contract Pool, the aggregate of the amounts by
which (i) the outstanding principal balance of each Contract that during such
time of reference had become a Liquidated 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.
Agreement: This Pooling and Servicing Agreement and any and all amendments
or supplements hereto.
Annual Servicing Rate: 1.00% per annum (or, if a successor Servicer is
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 Termination Date: As defined in Section 10.01(b) hereof.
Available Distribution Amount: As to any Distribution Date and as to any
Group, the sum of (a) the amount on deposit or otherwise credited to the
Certificate Account related to such Group 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 in respect of such Group
pursuant to Section 5.03 or (ii) constituting Excess Contract Payments for such
Group, (b) the Monthly Advance for such Group for such Distribution Date
actually made in respect of such Distribution Date and (c) with respect to the
Group I Contracts, the amount received by the Trust Fund pursuant to the Hedge
Agreement for such Distribution Date, less the amount paid to the Hedge
Counterparty pursuant to the Hedge Agreement for such Distribution Date.
Average Sixty-Day Delinquency Ratio: With respect to any Distribution Date,
the arithmetic average of the Sixty-Day Delinquency Ratios for such Distribution
Date and the two preceding Distribution Dates.
Average Thirty-Day Delinquency Ratio: With respect to any Distribution
Date, the arithmetic average of the Thirty-Day Delinquency Ratios for such
Distribution Date and the two preceding Distribution Dates.
Bank Agent: The meaning assigned in the Insurance Agreement.
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.
Certificate: Any of the GreenPoint Manufactured Housing Contract Trust
Pass-Through Certificates, Series 2001-1.
Certificate Account: The Group I Certificate Account and/or the Group II
Certificate Account, as applicable.
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 I
A Certificate Balance, Class I M-1 Certificate Balance, Class I M-2 Certificate
Balance, Class II A Certificate Balance, Class II M-1 Certificate Balance or
Class II M-2 Certificate Balance, as applicable; and when used with respect to
more than one Class of Certificates, the sum of the Class I A Certificate
Balance, Class I M-1 Certificate Balance, Class I M-2 Certificate Balance, Class
II A Certificate Balance, Class II M-1 Certificate Balance and/or Class II M-2
Certificate Balance, as applicable.
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Certificate Insurance Policy: An unconditional and irrevocable certificate
insurance policy, in the form attached hereto as Exhibit H, issued to the
Co-Trustee for the benefit of the Class I M-2 and Class II M-2
Certificateholders.
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.
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.
Class : Any of the Class I A, Class I M-1, Class I M-2, Class II A, Class
II M-1, Class II M-2, or Class R Certificates, as the case may be.
Class I A 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 I A Certificate Balance: At any time, the Initial Class I A
Certificate Balance minus the sum of all principal distributions previously made
to the Class I A Certificateholders.
Class I A Formula Principal Distribution Amount: With respect to (i) a
Distribution Date that is prior to the Cross-over Date, the Formula Principal
Distribution Amount for the Group I Certificates, (ii) a Distribution Date as to
which the Principal Distribution Tests are not satisfied, the Formula Principal
Distribution Amount for the Group I Certificates and (iii) any other
Distribution Date, the Class I A Percentage of the Formula Principal
Distribution Amount for the Group I Certificates. For any Distribution Date, if
the Class I A Formula Principal Distribution Amount exceeds the Class I A
Certificate Balance less the Unpaid Class I A Principal Shortfall with respect
to such Class and Distribution Date, then such excess shall be allocated to the
Class I M-1 Formula Principal Distribution Amount.
Class I A Distribution Amount: As to any Distribution Date, the total
amount distributed to the Class I A Certificateholders pursuant to Section 5.02.
Class I A 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 I A Pass-Through Rate on the Class I A Certificate
Balance as of such Distribution Date (after giving effect to the principal
distributions on the previous Distribution Date) and (b) any Class I A Unpaid
Interest Shortfall.
3
Class I A Interest Shortfall: As to any Distribution Date, any amount by
which the amount distributed to Holders of Class I A Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class I A Interest Distribution Amount."
Class I A Pass-Through Rate: A per annum rate equal to the sum of (a) LIBOR
and (b) 0.34%; provided, however, that with respect to any Distribution Date on
which the Hedge Counterparty fails to make its required payment under the Hedge
Agreement, the Class I A Pass-Through Rate will be subject to a cap equal to the
Net Weighted Average Contract Rate on the Group I Contracts.
Class I A Percentage: With respect to any Distribution Date, the percentage
equivalent of a fraction (not to exceed one), the numerator of which is the
Class I A Certificate Balance and the denominator of which is the sum of the
Class I A Certificate Balance and the Class I M-1 Adjusted Certificate Balance
and Class I M-2 Adjusted Certificate Balance, in each case determined as of the
immediately preceding Distribution Date (or as of the Closing Date in the case
of the first Distribution Date).
Class I A Principal Shortfall: With respect to any Distribution Date, the
excess of the Class I A Formula Principal Distribution Amount over the amount in
respect of principal actually distributed to the Class I A Certificateholders on
such Distribution Date.
Class I A Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class I A Interest Shortfalls for
prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class I A Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at the
Class I A Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
Class I M Adjusted Certificate Balance: At any time, the sum of the Class I
M-1 Adjusted Certificate Balance and the Class I M-2 Adjusted Certificate
Balance.
Class I M Certificate Balance: As to any Distribution Date, the sum of the
Class I M-1 Certificate Balance and Class I M-2 Certificate Balance (before
giving effect to the principal distributions on such Distribution Date).
Class I M Certificates: The Class I M-1 Certificates and the Class I M-2
Certificates.
Class I M-1 Adjusted Certificate Balance: With respect to any Distribution
Date, the Class I M-1 Certificate Balance as of such Distribution Date minus the
Class I M-1 Liquidation Loss Amount, if any.
Class I M-1 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 I M-1 Certificate Balance: At any time, the Initial Class I M-1
Certificate Balance minus the sum of all principal distributions previously made
to the Class I M-1 Certificateholders.
Class I M-1 Distribution Amount: As to any Distribution Date, the total
amount distributed to the Class I M-1 Certificateholders pursuant to Section
5.02.
Class I M-1 Formula Principal Distribution Amount: With respect to (i) a
Distribution Date as of which the Class I A Certificate Balance has not been
reduced to zero and that is prior to the Cross-over Date, zero, (ii) a
Distribution Date as to which the Principal Distribution Tests are not satisfied
and the Class I A Certificate Balance has not been reduced to zero, zero, (iii)
a Distribution Date as to which the Principal Distribution Tests are not
satisfied and the Class I A Certificate Balance has been reduced to zero,
4
the Formula Principal Distribution Amount for the Group I Certificates and (iv)
any other Distribution Date, the Class I M-1 Percentage of the Formula Principal
Distribution Amount for the Group I Certificates. On any Distribution Date, if
the Class I M-1 Formula Principal Distribution Amount exceeds the Class I M-1
Certificate Balance less the Unpaid Class I M-1 Principal Shortfall with respect
to such Class and Distribution Date, then such excess shall be allocated to the
Class I M-2 Formula Principal Distribution Amount.
Class I M-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 I M-1 Pass-Through Rate on the Class I M-1 Adjusted
Certificate Balance as of such Distribution Date (after giving effect to the
principal distributions on the preceding Distribution Date) and (b) any Class I
M-1 Unpaid Interest Shortfall.
Class I M-1 Interest Shortfall: As to any Distribution Date, any amount by
which the amount distributed to Holders of Class I M-1 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class I M-1 Interest Distribution Amount."
Class I M-1 Liquidation Loss Amount: With respect to any Distribution Date
on or after the Distribution Date on which the Class I M-2 Adjusted Certificate
Balance has been reduced to zero, the lesser of (i) the amount, if any, by which
the sum of the Class I A and Class I M-1 Certificate Balances exceeds the Group
I Pool Scheduled Principal Balance and (ii) the Class I M-1 Certificate Balance,
in each case after giving effect to all distributions of principal made on such
Distribution Date.
Class I M-1 Liquidation Loss Interest Amount: With respect to any
Distribution Date, an amount equal to one month's interest at the Class I M-1
Pass-Through Rate on the Class I M-1 Liquidation Loss Amount, if any, for the
immediately preceding Distribution Date.
Class I M-1 Pass-Through Rate: A per annum rate equal to the sum of (a)
LIBOR and (b) 0.87%; provided, however, that with respect to any Distribution
Date on which the Hedge Counterparty fails to make its required payment under
the Hedge Agreement, the Class I M-1 Pass-Through Rate will be subject to a cap
equal to the Net Weighted Average Contract Rate on the Group I Contracts.
Class I M-1 Percentage: With respect to any Distribution Date, the
percentage derived from the fraction (which shall not be greater than one) the
numerator of which is the Class I M-1 Adjusted Certificate Balance and the
denominator of which is the sum of the Class I A Certificate Balance, the Class
I M-1 Adjusted Certificate Balance and the Class I M-2 Adjusted Certificate
Balance, in each case as of the immediately preceding Distribution Date (or as
of the Closing Date in the case of the first Distribution Date).
Class I M-1 Principal Shortfall: With respect to any Distribution Date, the
excess, if any, of the Class I M-1 Formula Principal Distribution Amount over
the amount in respect of principal actually distributed to the Class I M-1
Certificateholders on such Distribution Date.
Class I M-1 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class I M-1 Interest Shortfalls
for prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class I M-1 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at the
Class I M-1 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
5
Class I M-1 Unpaid Liquidation Loss Interest Shortfall: With respect to any
Distribution Date, the amount, if any, by which the aggregate unreimbursed Class
I M-1 Liquidation Loss Interest Amounts for one or more prior Distributions
Dates exceeds the amount previously distributed to the Class I M-1
Certificateholders in respect of Class I M-1 Liquidation Loss Interest Amounts
on one or more prior Distribution Dates.
Class I M-2 Adjusted Certificate Balance: With respect to any Distribution
Date, the Class I M-2 Certificate Balance as of such Distribution Date minus the
Class I M-2 Liquidation Loss Amount, if any.
Class I M-2 Certificates: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in Exhibit
B-3 and Exhibit C hereto.
Class I M-2 Certificate Balance: At any time, the Initial Class I M-2
Certificate Balance minus the sum of all principal distributions previously made
to the Class I M-2 Certificateholders.
Class I M-2 Distribution Amount: As to any Distribution Date, the total
amount distributed to the Class I M-2 Certificateholders pursuant to Section
5.02.
Class I M-2 Formula Principal Distribution Amount: With respect to (i) a
Distribution Date as of which the Class I A and Class I M-1 Certificate Balances
have not been reduced to zero and that is prior to the Cross-over Date, zero,
(ii) a Distribution Date as to which the Principal Distribution Tests are not
satisfied and the Class I A and Class I M-1 Certificate Balances have not been
reduced to zero, zero, (iii) a Distribution Date as to which the Principal
Distribution Tests are not satisfied and the Class I A and Class I M-1
Certificate Balance have been reduced to zero, the Formula Principal
Distribution Amount for the Group I Certificates and (iv) any other Distribution
Date, the Class I M-2 Percentage of the Formula Principal Distribution Amount
for the Group I Certificates.
Class I M-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 I M-2 Pass-Through Rate on the Class I M-2 Adjusted
Certificate Balance as of such Distribution Date (after giving effect to the
principal distributions on the preceding Distribution Date) and (b) any Class I
M-2 Unpaid Interest Shortfall.
Class I M-2 Interest Shortfall: As to any Distribution Date, any amount by
which the amount distributed to Holders of Class I M-2 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class I M-2 Interest Distribution Amount."
Class I M-2 Liquidation Loss Amount: With respect to any Distribution Date,
the lesser of (i) the amount, if any, by which the sum of the Class I A, Class I
M-1 and Class I M-2 Certificate Balances exceeds the Group I Pool Scheduled
Principal Balance and (ii) the Class I M-2 Certificate Balance, in each case
after giving effect to all distributions of principal made on such Distribution
Date.
Class I M-2 Liquidation Loss Interest Amount: With respect to any
Distribution Date, an amount equal to one month's interest at the Class I M-2
Pass-Through Rate on the Class I M-2 Liquidation Loss Amount, if any, for the
immediately preceding Distribution Date.
Class I M-2 Pass-Through Rate: A per annum rate equal to the sum of (a)
LIBOR and (b) 1.27%; provided, however, that with respect to any Distribution
Date on which the Hedge Counterparty fails to make its required payment under
the Hedge Agreement, the Class I M-2 Pass-Through Rate will be subject to a cap
equal to the Net Weighted Average Contract Rate on the Group I Contracts.
6
Class I M-2 Percentage: With respect to any Distribution Date, the
percentage derived from the fraction (which shall not be greater than one) the
numerator of which is the Class I M-2 Adjusted Certificate Balance and the
denominator of which is the sum of the Class I A Certificate Balance, the Class
I M-1 Adjusted Certificate Balance and Class I M-2 Adjusted Certificate Balance,
in each case as of the immediately preceding Distribution Date (or as of the
Closing Date in the case of the first Distribution Date).
Class I M-2 Monthly Premium: With respect to any Distribution Date, the
amount specified in the Insurance Agreement. Such amount may be obtain by any
Certificateholder upon written request to the Trustee.
Class I M-2 Principal Shortfall: With respect to any Distribution Date, the
excess, if any, of the Class I M-2 Formula Principal Distribution Amount over
the amount in respect of principal actually distributed to the Class I M-2
Certificateholders on such Distribution Date.
Class I M-2 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class I M-2 Interest Shortfalls
for prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class I M-2 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at the
Class I M-2 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
Class I M-2 Unpaid Liquidation Loss Interest Shortfall: With respect to any
Distribution Date, the amount, if any, by which the aggregate unreimbursed Class
I M-2 Liquidation Loss Interest Amounts for one or more prior Distributions
Dates exceeds the amount previously distributed to the Class I M-2
Certificateholders in respect of Class I M-2 Liquidation Loss Interest Amounts
on one or more prior Distribution Dates.
Class II A 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 II A Certificate Balance: At any time, the Initial Class II A
Certificate Balance minus the sum of all principal distributions previously made
to the Class II A Certificateholders.
Class II A Distribution Amount: As to any Distribution Date, the total
amount distributed to the Class II A Certificateholders pursuant to Section
5.02.
Class II A Formula Principal Distribution Amount: With respect to (i) a
Distribution Date that is prior to the Cross-over Date, the Formula Principal
Distribution Amount for the Group II Certificates, (ii) a Distribution Date as
to which the Principal Distribution Tests are not satisfied, the Formula
Principal Distribution Amount for the Group II Certificates and (iii) any other
Distribution Date, the Class II A Percentage of the Formula Principal
Distribution Amount for the Group II Certificates. For any Distribution Date, if
the Class II A Formula Principal Distribution Amount exceeds the Class II A
Certificate Balance less the Unpaid Class II A Principal Shortfall with respect
to such Class and Distribution Date, then such excess shall be allocated to the
Class II M-1 Formula Principal Distribution Amount.
Class II A Formula Rate: A per annum rate equal to the sum of (a) LIBOR and
(b) 0.42%.
Class II A 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 II A Pass-Through Rate on the
7
Class II A Certificate Balance as of such Distribution Date (after giving effect
to the principal distributions on the previous Distribution Date) and (b) any
Class II A Unpaid Interest Shortfall.
Class II A Interest Shortfall: As to any Distribution Date, any amount by
which the amount distributed to Holders of Class II A Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class II A Interest Distribution Amount."
Class II A Net Funds Cap Carryover Amount: As of the First Distribution
Date, zero. On each subsequent Distribution Date, the sum of (A) if on such
Distribution Date, the Class II A Pass-Through Rate is based upon the Net
Weighted Average Contract Rate on the Group II Contracts, the excess of (i) the
lesser of (a) the product of (x) the Weighted Average Maximum Cap on the Group
II Contracts and (y) the Class II A Certificate Balance and (b) the amount of
interest the Class II A Certificates would otherwise be entitled to receive on
such Distribution Date had such rate been calculated at the Class II A Formula
Rate for such Distribution Date over (ii) the amount of interest payable on the
Class II A Certificates at the Net Weighted Average Contract Rate on the Group
II Contracts for such Distribution Date and (B) the Class II A Net Funds Cap
Carryover Amount, together with accrued interest thereon at the Class II A
Pass-Through Rate in effect on such Distribution Date, for all previous
Distribution Dates not previously distributed pursuant to clause 5.02(a)(B)(xi).
Class II A Pass-Through Rate: The lesser of (a) the Class II A Formula Rate
and (b) the Net Weighted Average Contract Rate on the Group II Contracts.
Class II A Percentage: With respect to any Distribution Date, the
percentage equivalent of a fraction (not to exceed one), the numerator of which
is the Class II A Certificate Balance and the denominator of which is the sum of
the Class II A Certificate Balance and the Class II M-1 Adjusted Certificate
Balance and Class II M-2 Adjusted Certificate Balance, in each case determined
as of the immediately preceding Distribution Date (or as of the Closing Date in
the case of the first Distribution Date).
Class II A Principal Shortfall: With respect to any Distribution Date, the
excess of the Class II A Formula Principal Distribution Amount over the amount
in respect of principal actually distributed to the Class II A
Certificateholders on such Distribution Date.
Class II A Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class II A Interest Shortfalls for
prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class II A Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at the
Class II A Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
Class II M Adjusted Certificate Balance: At any time, the sum of the Class
II M-1 Adjusted Certificate Balance and the Class II M-2 Adjusted Certificate
Balance.
Class II M Certificate Balance: As to any Distribution Date, the sum of the
Class II M-1 Certificate Balance and Class II M-2 Certificate Balance (before
giving effect to the principal distributions on such Distribution Date).
Class II M Certificates: The Class II M-1 Certificates and the Class II M-2
Certificates.
Class II M-1 Adjusted Certificate Balance: With respect to any Distribution
Date, the Class II M-1 Certificate Balance as of such Distribution Date minus
the Class II M-1 Liquidation Loss Amount, if any.
8
Class II M-1 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 II M-1 Certificate Balance: At any time, the Initial Class II M-1
Certificate Balance minus the sum of all principal distributions previously made
to the Class II M-1 Certificateholders.
Class II M-1 Distribution Amount: As to any Distribution Date, the total
amount distributed to the Class II M-1 Certificateholders pursuant to Section
5.02.
Class II M-1 Formula Principal Distribution Amount: With respect to (i) a
Distribution Date as of which the Class II A Certificate Balance has not been
reduced to zero and that is prior to the Cross-over Date, zero, (ii) a
Distribution Date as to which the Principal Distribution Tests are not satisfied
and the Class II A Certificate Balance has not been reduced to zero, zero, (iii)
a Distribution Date as to which the Principal Distribution Tests are not
satisfied and the Class II A Certificate Balance has been reduced to zero, the
Formula Principal Distribution Amount for the Group II Certificates and (iv) any
other Distribution Date, the Class II M-1 Percentage of the Formula Principal
Distribution Amount for the Group II Certificates. On any Distribution Date, if
the Class II M-1 Formula Principal Distribution Amount exceeds the Class II M-1
Certificate Balance less the Unpaid Class II M-1 Principal Shortfall with
respect to such Distribution Date, then such excess shall be allocated to the
Class II M-2 Formula Principal Distribution Amount.
Class II M-1 Formula Rate: A per annum rate equal to the sum of (a) LIBOR
and (b) 0.95%.
Class II M-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 II M-1 Pass-Through Rate on the Class II M-1
Adjusted Certificate Balance as of such Distribution Date (after giving effect
to the principal distributions on the preceding Distribution Date) and (b) any
Class II M-1 Unpaid Interest Shortfall. Class II M-1 Interest Shortfall: As to
any Distribution Date, any amount by which the amount distributed to Holders of
Class II M-1 Certificates on such Distribution Date is less than the amount
computed pursuant to clause (a) of the definition of "Class II M-1 Interest
Distribution Amount."
Class II M-1 Liquidation Loss Amount: With respect to any Distribution Date
on or after the Distribution Date on which the Class II M-2 Adjusted Certificate
Balance has been reduced to zero, the lesser of (i) the amount, if any, by which
the sum of the Class II A and Class II M-1 Certificate Balances exceeds the
Group II Pool Scheduled Principal Balance and (ii) the Class II M-1 Certificate
Balance, in each case after giving effect to all distributions of principal made
on such Distribution Date.
Class II M-1 Liquidation Loss Interest Amount: With respect to any
Distribution Date, an amount equal to one month's interest at the Class II M-1
Pass-Through Rate on the Class II M-1 Liquidation Loss Amount, if any, for the
immediately preceding Distribution Date.
Class II M-1 Net Funds Cap Carryover Amount: As of the First Distribution
Date, zero. On each subsequent Distribution Date, the sum of (A) if on such
Distribution Date, the Class II M-1 Pass-Through Rate is based upon the Net
Weighted Average Contract Rate on the Group II Contracts, the excess of (i) the
lesser of (a) the product of (x) the Weighted Average Maximum Cap on the Group
II Contracts and (y) the Class II M-1 Certificate Balance and (b) the amount of
interest the Class II M-1 Certificates would otherwise be entitled to receive on
such Distribution Date had such rate been calculated at the Class II M-1 Formula
Rate for such Distribution Date over (ii) the amount of interest payable on the
Class II M-1
9
Certificates at the Net Weighted Average Contract Rate on the Group II Contracts
for such Distribution Date and (B) the Class II M-1 Net Funds Cap Carryover
Amount, together with accrued interest thereon at the Class II M-1 Pass-Through
Rate in effect on such Distribution Date, for all previous Distribution Dates
not previously distributed pursuant to clause 5.02(a)(B)(xii).
Class II M-1 Pass-Through Rate: The lesser of (a) the Class II M-1 Formula
Rate and (b) the Net Weighted Average Contract Rate on the Group II Contracts.
Class II M-1 Percentage: With respect to any Distribution Date, the
percentage derived from the fraction (which shall not be greater than one) the
numerator of which is the Class II M-1 Adjusted Certificate Balance and the
denominator of which is the sum of the Class II A Certificate Balance, the Class
II M-1 Adjusted Certificate Balance and the Class II M-2 Adjusted Certificate
Balance, in each case as of the immediately preceding Distribution Date (or as
of the Closing Date in the case of the first Distribution Date).
Class II M-1 Principal Shortfall: With respect to any Distribution Date,
the excess, if any, of the Class II M-1 Formula Principal Distribution Amount
over the amount in respect of principal actually distributed to the Class II M-1
Certificateholders on such Distribution Date.
Class II M-1 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class II M-1 Interest Shortfalls
for prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class II M-1 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at the
Class II M-1 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
Class II M-1 Unpaid Liquidation Loss Interest Shortfall: With respect to
any Distribution Date, the amount, if any, by which the aggregate unreimbursed
Class II M-1 Liquidation Loss Interest Amounts for one or more prior
Distributions Dates exceeds the amount previously distributed to the Class II
M-1 Certificateholders in respect of Class II M-1 Liquidation Loss Interest
Amounts on one or more prior Distribution Dates.
Class II M-2 Adjusted Certificate Balance: With respect to any Distribution
Date, the Class II M-2 Certificate Balance as of such Distribution Date minus
the Class II M-2 Liquidation Loss Amount, if any.
Class II M-2 Certificates: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in Exhibit
B-3 and Exhibit C hereto.
Class II M-2 Certificate Balance: At any time, the Initial Class II M-2
Certificate Balance minus the sum of all principal distributions previously made
to the Class II M-2 Certificateholders.
Class II M-2 Distribution Amount: As to any Distribution Date, the total
amount distributed to the Class II M-2 Certificateholders pursuant to Section
5.02.
Class II M-2 Formula Principal Distribution Amount: With respect to (i) a
Distribution Date as of which the Class II A and Class II M-1 Certificate
Balances have not been reduced to zero and that is prior to the Cross-over Date,
zero, (ii) a Distribution Date as to which the Principal Distribution Tests are
not satisfied and the Class II A and Class II M-1 Certificate Balances have not
been reduced to zero, zero, (iii) a Distribution Date as to which the Principal
Distribution Tests are not satisfied and the Class II A and Class II M-1
Certificate Balance have been reduced to zero, the Formula Principal
Distribution Amount for
10
the Group II Certificates and (iv) any other Distribution Date, the Class II M-2
Percentage of the Formula Principal Distribution Amount for the Group II
Certificates.
Class II M-2 Formula Rate: A per annum rate equal to the sum of (a) LIBOR
and (b) 1.45%.
Class II M-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 II M-2 Pass-Through Rate on the Class II M-2
Adjusted Certificate Balance as of such Distribution Date (after giving effect
to the principal distributions on the preceding Distribution Date) and (b) any
Class II M-2 Unpaid Interest Shortfall.
Class II M-2 Interest Shortfall: As to any Distribution Date, any amount by
which the amount distributed to Holders of Class II M-2 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class II M-2 Interest Distribution Amount."
Class II M-2 Liquidation Loss Amount: With respect to any Distribution
Date, the lesser of (i) the amount, if any, by which the sum of the Class II A,
Class II M-1 and Class II M-2 Certificate Balances exceeds the Group II Pool
Scheduled Principal Balance and (ii) the Class II M-2 Certificate Balance, in
each case after giving effect to all distributions of principal made on such
Distribution Date.
Class II M-2 Liquidation Loss Interest Amount: With respect to any
Distribution Date, an amount equal to one month's interest at the Class II M-2
Pass-Through Rate on the Class II M-2 Liquidation Loss Amount, if any, for the
immediately preceding Distribution Date.
Class II M-2 Monthly Premium: With respect to any Distribution Date, the
amount specified in the Insurance Agreement. Such amount may be obtain by any
Certificateholder upon written request to the Trustee.
Class II M-2 Net Funds Cap Carryover Amount: As of the First Distribution
Date, zero. On each subsequent Distribution Date, the sum of (A) if on such
Distribution Date, the Class II M-2 Pass-Through Rate is based upon the Net
Weighted Average Contract Rate on the Group II Contracts, the excess of (i) the
lesser of (a) the product of (x) the Weighted Average Maximum Cap on the Group
II Contracts and (y) the Class II M-2 Certificate Balance and (b) the amount of
interest the Class II M-2 Certificates would otherwise be entitled to receive on
such Distribution Date had such rate been calculated at the Class II M-2 Formula
Rate for such Distribution Date over (ii) the amount of interest payable on the
Class II M-2 Certificates at the Net Weighted Average Contract Rate on the Group
II Contracts for such Distribution Date and (B) the Class II M-2 Net Funds Cap
Carryover Amount, together with accrued interest thereon at the Class II M-2
Pass-Through Rate in effect on such Distribution Date, for all previous
Distribution Dates not previously distributed pursuant to clause
5.02(a)(B)(xiii).
Class II M-2 Pass-Through Rate: The lesser of (a) the Class II M-2 Formula
Rate and (b) the Net Weighted Average Contract Rate on the Group II Contracts.
Class II M-2 Percentage: With respect to any Distribution Date, the
percentage derived from the fraction (which shall not be greater than one) the
numerator of which is the Class II M-2 Adjusted Certificate Balance and the
denominator of which is the sum of the Class II A Certificate Balance, the Class
II M-1 Adjusted Certificate Balance and Class II M-2 Adjusted Certificate
Balance, in each case as of the immediately preceding Distribution Date (or as
of the Closing Date in the case of the first Distribution Date).
11
Class II M-2 Principal Shortfall: With respect to any Distribution Date,
the excess, if any, of the Class II M-2 Formula Principal Distribution Amount
over the amount in respect of principal actually distributed to the Class II M-2
Certificateholders on such Distribution Date.
Class II M-2 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class II M-2 Interest Shortfalls
for prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class II M-2 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at the
Class II M-2 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
Class II M-2 Unpaid Liquidation Loss Interest Shortfall: With respect to
any Distribution Date, the amount, if any, by which the aggregate unreimbursed
Class II M-2 Liquidation Loss Interest Amounts for one or more prior
Distributions Dates exceeds the amount previously distributed to the Class II
M-2 Certificateholders in respect of Class II M-2 Liquidation Loss Interest
Amounts on one or more 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: March 29, 2001.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collected Scheduled Payments: : With respect to any Group and as to any
Distribution Date, (a) the amount on deposit in the Certificate Account for such
Group as of the end of the related Collection Period, less (b) the sum of (i)
the aggregate of all Partial Prepayments collected with respect to such Group
during such Collection Period, (ii) the aggregate of all payments collected with
respect to such Group 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 with respect to
such Group 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 in such Group 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 applicable Certificate Account pursuant to clauses (i),
(ii), (iii), (iv), (v) and (vii) of Section 5.03, and (vi) amounts representing
Excess Contract Payments relating to such Group.
Collection Period: With respect to any Distribution Date, the calendar
month preceding the month of that Distribution Date.
Computer Tape: The computer tape generated by the Servicer on behalf of 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 to be sold and assigned by the Contract Seller to the
12
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 Group I Contract Schedule and the Group II Contract
Schedule.
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
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Co-Trustee: First Union National Bank, or its successors or assigns or any
successor under this Agreement.
Cross-over Date: With respect to each Group, the later of (a) the
Distribution Date occurring in April 2005 or (b) the first Distribution Date on
which the percentage equivalent of a fraction (which shall not be greater than
1) the numerator of which is the Class I M Adjusted Certificate Balance or Class
II M Adjusted Certificate Balance, as applicable, and the denominator of which
is the Group I Pool Scheduled Principal Balance or Group II Pool Scheduled
Principal Balance, as applicable, equals or exceeds 1.5 times the percentage
equivalent of a fraction (which shall not be greater than 1) the numerator of
which is the sum of the Initial Class I M-1 Certificate Balance and the Initial
Class I M-2 Certificate Balance or the Initial Class II M-1 Certificate Balance
and the Initial Class II M-2 Certificate Balance, as applicable and the
denominator of which is the Cut-Off Date Group I Pool Balance or Cut-Off Date
Group II Pool Balance, as applicable.
Cumulative Realized Losses: As to any Distribution Date and each Group, the
Aggregate Net Liquidation Losses for such Group for the period from the Cut-Off
Date through the end of the Collection
13
Period preceding the month of such Distribution Date. As to any Distribution
Date and the Contract Pool, the Aggregate Net Liquidation Losses for the period
from the Cut-Off Date through the end of the Collection Period preceding the
month of such Distribution Date.
Cumulative Realized Loss Test: With respect to any Distribution Date and
each Group, the following:
(i) if such Distribution Date occurs between March 1, 2005 and February 28,
2006, the Cumulative Realized Loss Test will be satisfied if Cumulative Realized
Losses for such Group as of such Distribution Date are less than or equal to
7.5% of the Group I Cut-Off Date Pool Principal Balance or Group II Cut-Off Date
Pool Principal Balance, as applicable;
(ii) if such Distribution Date occurs between March 1, 2006 and February
28, 2007, the Cumulative Realized Loss Test will be satisfied if Cumulative
Realized Losses for such Group as of such Distribution Date are less than or
equal to 8.5% of the Group I Cut-Off Date Pool Principal Balance or Group II
Cut-Off Date Pool Principal Balance, as applicable;
(iii) if such Distribution Date occurs between March 1, 2007 and February
29, 2008, the Cumulative Realized Loss Test will be satisfied if Cumulative
Realized Losses for such Group as of such Distribution Date are less than or
equal to 9.5% of the Group I Cut-Off Date Pool Principal Balance or Group II
Cut-Off Date Pool Principal Balance, as applicable;
(iv) if such Distribution Date occurs on or after March 1, 2008, the
Cumulative Realized Loss Test will be satisfied if Cumulative Realized Losses
for such Group as of such Distribution Date are less than or equal to 11.0% of
the Group I Cut-Off Date Pool Principal Balance or Group II Cut-Off Date Pool
Principal Balance, as applicable.
Current Realized Loss Ratio: As to any Distribution Date and each Group,
the annualized percentage equivalent of the fraction, the numerator of which is
the arithmetic average of the Aggregate Net Liquidation Losses for such Group
for the three preceding Collection Periods related to such Distribution Date and
the denominator of which is the arithmetic average of the Group I Pool Scheduled
Balance or Group II Pool Scheduled Balance, as applicable, for such Distribution
Date and the preceding two Distribution Dates.
Cut-Off Date: The close of business on February 28, 2001.
Cut-Off Date Pool Principal Balance: $271,662,430.44.
Cut-Off Date Group I Pool Balance: $132,656,107.03.
Cut-Off Date Group II Pool Balance: $139,006,323.41.
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 Percentage: 35%.
14
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 I.
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 third
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 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 20th day of each calendar month commencing in April
2001, or if such day is not a Business Day, the next succeeding Business Day.
Due Date: The day of the month on which each Scheduled Payment is due on a
Contract, 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
15
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 and the Insurer, as evidenced by a letter from each Rating
Agency and the Insurer, 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 and acceptable to
the Insurer as evidenced by a letter from the Insurer;
provided, however, that no investments in "interest only" stripped obligations
shall qualify as an Eligible Investment pursuant to this definition.
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, an Eligible Substitute Contract which is a Land Home
Contract may only be used to replace a Replaced Contract which was a Land Home
Contract.
Enhancement Payment: With respect to the Class I M-2 Certificates and any
Distribution Date, the sum of (a) the amount by which the aggregate amount
distributable to the Class I M-2 Certificateholders pursuant to Section
5.02(a)(A)(iv) exceeds the sum of (1) the portion of the Available Distribution
Amount allocable to the Group I Certificates remaining after giving effect to
the distributions pursuant to Section 5.02(a)(A)(i) through (iii) and (2) the
portion of amounts available from the Group II Certificate Account, if any,
pursuant to Section 5.02(a)(B)(xiv) after giving effect to the distributions
pursuant to Section 5.02(a)(A)(i) through (iii) and (b) (1) for any Distribution
Date other than the Distribution Date occurring in April 2032, the amount of any
Class I M-2 Liquidation Loss Amount for such Distribution Date and (2) for the
Distribution Date occurring in April 2032, after giving effect to all
distributions of principal to the Class I M-2 Certificates on such Distribution
Date, an amount equal to the remaining Class I M-2 Certificate Balance. With
respect to the Class II M-2 Certificates and any Distribution Date, the sum of
(a) the amount by which the aggregate amount distributable to the Class II M-2
Certificateholders pursuant to Sections 5.02(a)(B)(iv) exceeds the sum of (1)
the portion of the Available Distribution Amount allocable to the Group II
Certificates remaining after giving effect to the distributions pursuant to
Section 5.02(a)(B)(i) through (iii) and (2) the portion of amounts available
from the Group I Certificate Account, if any, pursuant to Section 5.02(a)(A)(x)
after giving effect to the distributions pursuant to
16
Section 5.02(a)(B)(i) through (iii) and (b) (1) for any Distribution Date other
than the Distribution Date occurring in April 2032, the amount of any Class II
M-2 Liquidation Loss Amount for such Distribution Date and (2) for the
Distribution Date occurring in April 2032, after giving effect to all
distributions of principal to the Class II M-2 Certificates on such Distribution
Date, an amount equal to the remaining Class II M-2 Certificate Balance.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA Restricted Certificate: Any Class I A, Class I M-1, Class I M-2 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.
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.
First Distribution Date: April 20, 2001.
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 and as
to any Group, an amount equal to the sum (without duplication) of (a) all
scheduled payments of principal due on each outstanding Contract in such Group
during the immediately preceding Collection Period, (b) all Partial Prepayments
on the Contracts in such Group received during the immediately preceding
Collection Period, (c) the Scheduled Principal Balance of each Contract in such
Group for which a Principal Prepayment in Full was received during the
immediately preceding Collection Period, (d) the Scheduled Principal Balance of
each Contract in such Group that became a Liquidated Contract during the
immediately preceding Collection Period, (e) the Scheduled Principal Balance of
each Contract in such Group 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 in such Group
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.
Formula Rate: The Class II A Formula Rate, Class II M-1 Formula Rate or
Class II M-2 Formula Rate, as applicable.
17
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 R Certificates will not 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.
Gross Margin: With respect to each Group II Contract that has a variable
Contract Rate, the percentage set forth as such on the Group II Contract
Schedule.
Group: The Group I Contracts or the Group II Contracts, as applicable.
Group I Available Funds Shortfall: With respect to any Distribution Date,
the amount, if any, by which the Available Distribution Amount for the Group I
Contracts is less than the amount required to be distributed to the Group I
Certificates on such Distribution Date pursuant to Section 5.02(a)(A).
Group I 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 Group I Certificates and the
Insurer. Funds in the Group I Certificate Account shall be held in trust for the
aforementioned Certificateholders and the Insurer for the uses and purposes set
forth in this Agreement.
Group I Certificates: The Class I A, Class I M-1 and Class I M-2
Certificates.
Group I Contract Schedule: The list of Contracts, as amended from time to
time, constituting part of the corpus of the Trust Fund, attached hereto as
Exhibit A-1.
Group I Contracts: The Contracts listed on Exhibit A-1 hereto.
Group I Monthly Servicing Fee: With respect to any Distribution Date and
the Group I Contracts, an amount equal to one-twelfth of 1.00% per annum (or, if
a successor Servicer is engaged at any time after GreenPoint is no longer the
Servicer, the percentage agreed upon pursuant to Section 7.07) of the Group I
Pool Scheduled Principal Balance for such Distribution Date.
Group I Pool Scheduled Principal Balance: As to any Distribution Date, the
Cut-Off Date Group I Pool Balance less the aggregate of the Formula Principal
Distribution Amounts for the Group I Contracts for all prior Distribution Dates.
Group II Available Funds Shortfall: With respect to any Distribution Date,
the amount, if any, by which the Available Distribution Amount for the Group II
Contracts is less than the amount required to be distributed to the Group II
Certificates on such Distribution Date pursuant to Section 5.02(a)(B).
18
Group II 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 Group II Certificates and the
Insurer. Funds in the Group II Certificate Account shall be held in trust for
the aforementioned Certificateholders and the Insurer for the uses and purposes
set forth in this Agreement.
Group II Certificates: The Class II A, Class II M-1 and Class II M-2
Certificates.
Group II Contract Schedule: The list of Contracts, as amended from time to
time, constituting part of the corpus of the Trust Fund, attached hereto as
Exhibit A-2.
Group II Contracts: The Contracts listed on Exhibit A-2 hereto.
Group II Monthly Servicing Fee: The sum of the Senior Group II Monthly
Servicing Fee and the Subordinate Group II Monthly Servicing Fee.
Group II Pool Scheduled Principal Balance: As to any Distribution Date, the
Cut-Off Date Group II Pool Balance less the aggregate of the Formula Principal
Distribution Amounts for the Group II Contracts for all prior Distribution
Dates.
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, credit support annex
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: Citibank, N.A., New York Branch, 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 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).
19
Index: With respect to each Group II Contract that has not converted its
Contract Rate from a variable rate to a fixed rate, the per annum rate equal to
Twelve-Month LIBOR in effect with respect to such Contract.
Initial Class I A Certificate Balance: As set forth in Section 6.01.
Initial Class I M-1 Certificate Balance: As set forth in Section 6.01.
Initial Class I M-2 Certificate Balance: As set forth in Section 6.01.
Initial Class II A Certificate Balance: As set forth in Section 6.01.
Initial Class II M-1 Certificate Balance: As set forth in Section 6.01.
Initial Class II M-2 Certificate Balance: As set forth in Section 6.01.
Insurance Agreement: The Insurance and Reimbursement Agreement, dated as of
the Closing Date, among GreenPoint, GreenPoint Bank, the Trustee, the Co-Trustee
and the Insurer, as amended, modified and supplemented from time to time in
accordance with its terms.
Insurer: Radian Insurance Inc. and its successors and assigns.
Insurer Default: The failure by the Insurer to make a payment under the
Certificate Insurance Policy in accordance with its terms.
Interest Accrual Period: With respect to any Distribution Date other than
the First Distribution Date, (i) the one month period beginning on the
Distribution Date in the month preceding the month in which such Distribution
Date occurs and ending on the day preceding such Distribution Date, and (ii)
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, deed of
trust, security deed or similar evidence of lien 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.
20
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 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.
21
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.
Maximum Cap: With respect to each Group II Contract, the percentage set
forth as such on the Group II Contract Schedule.
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 pursuant to Section 10.01(a)(ii) hereof, an amount equal to the sum of
(a) the aggregate Certificate Balances of all of the Certificates, (b) any
shortfall in interest due to Certificateholders in respect of prior Distribution
Dates, and (c) one month's interest on Certificate Balance of each Class of
Certificates at the applicable Pass-Through Rate.
Monthly Advance: As to any Distribution Date and any Group, the lesser of
(1) (a) the amount, if any, by which (i) the Scheduled Amount for such Group
exceeds (ii) the Collected Scheduled Payments for such Group, less (b) the
amount of any Scheduled Payment on a Contract in such Group 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 Distribution Amount (exclusive of
the Monthly Advance component thereof) for such Group for such Distribution Date
is less than the sum of (A) with respect to the Group I Contracts, the sum of
(a) the Formula Principal Distribution Amount for the Group I Contracts and (b)
the aggregate of the Class I A Interest Distribution Amount, Class I M-1
Interest Distribution Amount and Class I M-2 Interest Distribution Amount, and
(B) with respect to the Group II Contracts, the sum of (a) the Formula Principal
Distribution Amount for the Group II Contracts and (b) the aggregate of the
Class II A Interest Distribution Amount, Class II M-1 Interest Distribution
Amount and Class II M-2 Interest Distribution Amount, provided, however, that
with respect to the first Distribution Date, the Monthly Advance shall equal the
amount, if any, determined pursuant to clause (2) above.
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: The sum of the Group I Monthly Servicing Fee and the
Group II Monthly Servicing Fee.
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 Contract Rate: With respect to any (a) Group I Contract, the rate of
interest per annum borne by such Contract on the first day of the related
Collection Period minus 1.29% and (b) Group II Contract, the rate of interest
per annum borne by such Contract on the first day of the related Collection
Period minus 1.19%.
Net Funds Cap Carryover Amount: The Class II A Net Funds Cap Carryover
Amount, the Class II M-1 Net Funds Cap Carryover Amount and/or the Class II M-2
Net Funds Cap Carryover Amount, as applicable.
22
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.
Net Weighted Average Contract Rate: As to any Distribution Date and each
Group, the weighted average of the Net Contract Rates of all of the Contracts in
such Group as of the first day of the related Collection Period, weighted on the
basis of the Scheduled Principal Balances of the Contracts in such Group on the
first day of the related Collection Period.
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.
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 or 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.
23
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.
Pass-Through Rate: The Class I A Pass-Through Rate, the Class I M-1
Pass-Through Rate, the Class I M-2 Pass-Through Rate, Class II A Pass-Through
Rate, the Class II M-1 Pass-Through Rate or the Class II M-2 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.
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.
Principal Distribution Tests: With respect to each Group, a test that will
be satisfied with respect to any Distribution Date, if (i) the Average Sixty-Day
Delinquency Ratio with respect to that Group is less than or equal to 6.0%, (ii)
the Current Realized Loss Ratio for that Group is less than or equal to 3.50%,
and (iii) the Cumulative Realized Loss Test for that Group is satisfied.
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
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.
24
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 ▇▇▇▇▇'▇ or S&P.
Record Date: With respect to the First Distribution Date, the Closing Date
and with respect to any Distribution Date thereafter, the close of business on
the day preceding such Distribution Date.
Reference Banks: The leading banks selected by the Trustee, which are
engaged in transactions in Eurodollar deposits in the London interbank market.
Regular Certificates: Any one of the Group I Certificates or Group II
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 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.
25
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.
S&P: Standard & Poor's Credit Market 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 final 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 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.
Senior Group II Monthly Servicing Fee: With respect to any Distribution
Date and the Group II Contracts, an amount equal to one-twelfth of 0.75% per
annum (or, if a successor Servicer is engaged at any time after GreenPoint is no
longer the Servicer, the percentage agreed upon pursuant to Section 7.07) of the
Group II Pool Scheduled Principal Balance for such Distribution Date.
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
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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.
Sixty-Day Delinquency Ratio: As to any Distribution Date and each Group,
the percentage equivalent of the fraction, the numerator of which is the
aggregate of the outstanding principal balances (as of the end of the preceding
Collection Period) of all Contracts in that Group (including Contracts in
respect of which the related Manufactured Home has been repossessed but not yet
liquidated) as to which a Scheduled Payment thereon (without giving effect to
any adjustments thereto by reason of a bankruptcy or similar proceeding of the
Obligor or any extension or modification granted to such Obligor) is delinquent
60 days or more as of the end of such Collection Period and the denominator of
which is the Group I Pool Scheduled Principal Balance or Group II Pool Scheduled
Principal Balance, as applicable, for such Distribution Date. As to any
Distribution Date and the Contract Pool, the percentage equivalent of the
fraction, the numerator of which is the aggregate of the outstanding principal
balances (as of the end of the preceding Collection Period) of all Contracts
(including Contracts in respect of which the related Manufactured Home has been
repossessed but not yet liquidated) as to which a Scheduled Payment thereon
(without giving effect to any adjustments thereto by reason of a bankruptcy or
similar proceeding of the Obligor or any extension or modification granted to
such Obligor) is delinquent 60 days or more as of the end of such Collection
Period and the denominator of which is the Pool Scheduled Principal Balance for
such Distribution Date.
Startup Day: As defined in Section 4.17(b) hereof.
Subordinated Group II Monthly Servicing Fee: With respect to any
Distribution Date and the Group II Contracts, an amount equal to one-twelfth of
0.25% per annum (or, if a successor Servicer is engaged at any time after
GreenPoint is no longer the Servicer, the percentage agreed upon pursuant to
Section 7.07) of the Group II Pool Scheduled Principal Balance for such
Distribution Date.
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.
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Thirty-Day Delinquency Ratio: As to any Distribution Date, the percentage
equivalent of the fraction, the numerator of which is the aggregate of the
outstanding principal balances (as of the end of the preceding Collection
Period) of all Contracts as to which a Scheduled Payment thereon (without giving
effect to any adjustments thereto by reason of a bankruptcy or similar
proceeding of the Obligor or any extension or modification granted to such
Obligor) is delinquent 30 days or more as of the end of such Collection Period
and the denominator of which is the Pool Scheduled Principal Balance for such
Distribution Date.
Transfer: Any direct or indirect transfer or sale of any Ownership Interest
in a Class R Certificate.
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 applicable 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 Hedge Agreement and the proceeds of the Hazard Insurance
Policies.
Twelve-Month LIBOR: The average of interbank rates for one year U.S. dollar
denominated deposits in the London market based on the quotation of major banks
listed as the "1-Year London Interbank Offered Rates Index" found in the Wall
Street Journal, Money & Investing section, under the "Money Rates" table.
Twelve-Month Realized Loss Ratio: As to any Distribution Date, the
percentage equivalent of the fraction, the numerator of which is the arithmetic
average of the Aggregate Net Liquidation Losses for the twelve preceding
Collection Periods related to such Distribution Date and the denominator of
which is the arithmetic average of the Pool Scheduled Principal Balance for such
Distribution Date and the preceding eleven Distribution Dates.
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.
Unpaid Class I A Principal Shortfall: With respect to any Distribution
Date, the amount, if any, by which the aggregate unreimbursed Class I A
Principal Shortfalls for one or more prior Distribution Dates exceeds the amount
previously distributed to the Class I A Certificateholders in respect of Class I
A Principal Shortfalls on one or more prior Distribution Dates.
Unpaid Class I M-1 Principal Shortfall: With respect to any Distribution
Date, the amount, if any, by which the aggregate Class I M-1 Principal
Shortfalls for one or more prior Distribution Dates exceeds
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the amount previously distributed to the Class I M-1 Certificateholders in
respect of Class I M-1 Principal Shortfalls on one or more prior Distribution
Dates.
Unpaid Class I M-2 Principal Shortfall: With respect to any Distribution
Date, the amount, if any, by which the aggregate Class I M-2 Principal
Shortfalls for one or more prior Distribution Dates exceeds the amount
previously distributed to the Class I M-2 Certificateholders in respect of Class
I M-2 Principal Shortfalls on one or more prior Distribution Dates.
Unpaid Class II A Principal Shortfall: With respect to any Distribution
Date, the amount, if any, by which the aggregate unreimbursed Class II A
Principal Shortfalls for one or more prior Distribution Dates exceeds the amount
previously distributed to the Class II A Certificateholders in respect of Class
II A Principal Shortfalls on one or more prior Distribution Dates.
Unpaid Class II M-1 Principal Shortfall: With respect to any Distribution
Date, the amount, if any, by which the aggregate Class II M-1 Principal
Shortfalls for one or more prior Distribution Dates exceeds the amount
previously distributed to the Class II M-1 Certificateholders in respect of
Class II M-1 Principal Shortfalls on one or more prior Distribution Dates.
Unpaid Class II M-2 Principal Shortfall: With respect to any Distribution
Date, the amount, if any, by which the aggregate Class II M-2 Principal
Shortfalls for one or more prior Distribution Dates exceeds the amount
previously distributed to the Class II M-2 Certificateholders in respect of
Class II M-2 Principal Shortfalls on one or more prior Distribution Dates.
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.
Weighted Average Maximum Cap: With respect to any Distribution Date and the
Group II Contracts, an amount equal to the weighted average of the Maximum Caps
of the Group II Contracts on such Distribution Date (or with respect to any
Group II Contract that had its Contract Rate convert from a variable rate to a
fixed rate, the appropriate fixed rate) multiplied by a fraction the numerator
of which is the actual number of days elapsed in the related Interest Accrual
Period and the denominator of which is 360.
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.
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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
Servicing Files, the Contract Files and in the Land Home Contract 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 Trust shall be deemed to consist of two
sub-trusts, one with respect to each Group.
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
Servicing Files, the Contract Files and in the Land Home Contract 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
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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 UCC 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 respective duties
specified in this Section 2.02.
Section 2.03 Acceptance by Trustee and Co-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 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.
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(b) The Trustee hereby acknowledges delivery of the Hedge Agreement to the
Trustee and declares that the Trustee holds and will hold the rights to payments
under the Hedge Agreement in trust for the use and benefit of all present and
future Group I Certificateholders and the Insurer.
(c) The Co-Trustee hereby acknowledges delivery of the Certificate
Insurance Policy to the Co-Trustee and declares that the Co-Trustee holds and
will hold the Certificate Insurance Policy in trust for the use and benefit of
all present and future Holders of the Class I M-2 and Class II M-2 Certificates.
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 by it or the Co-Trustee of the following documents:
(a) a letter from each Rating Agency confirming that the Class I A and
Class II A Certificates each have been assigned the rating of "AAA" by S&P and
"Aaa" by ▇▇▇▇▇'▇, the Class I M-1 and Class II M-1 Certificates each have been
assigned the rating of at least "AA" by S&P and "Aa2" by ▇▇▇▇▇'▇ and that the
Class I M-2 and Class II M-2 Certificates each have been assigned the rating of
at least "AA" by S&P and "Aa3" by ▇▇▇▇▇'▇.
(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 related 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) the Certificate Insurance Policy; and
(d) the Hedge Agreement.
Notwithstanding anything in this Agreement to the contrary, the Contract
Seller shall deposit into the applicable Certificate Account all amounts in
respect of the Contracts received by it on or after March 1, 2001 (other than
amounts due on a Due Date occurring prior to March 1, 2001) or otherwise
required to be deposited in the applicable Certificate Account by other
provisions of this Agreement pursuant to Section 4.05.
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.
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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 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.
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Section 2.08 Covenants of the Servicer.
The Servicer hereby covenants to the Contract Seller and the Trustee that:
(a) 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; and
(b) if so directed by the Trustee and as agent for the Trustee, it will use
reasonable efforts to obtain a replacement Hedge Agreement or establish
collateralization or other arrangement in substitute thereof as required by, and
pursuant to the terms of, the Hedge Agreement. Notwithstanding the foregoing,
the cost of any such replacement or the establishment of collateralization or
other arrangement shall not be at the expense of the Servicer and the Servicer
shall not be required to execute any documents in connection therewith.
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.
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
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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.
(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.
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(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.
(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.
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(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 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 Group II Contract
that has converted to a fixed rate of interest and each Group I Contract has a
fixed Contract Rate and each Group II Contract that has not converted to a fixed
rate of interest has a Contract Rate that after an initial period is calculated
based upon the Index plus the Gross Margin. 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
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
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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 March 1, 2001 (among such
Trustee, the Co-Trustee and GreenPoint Credit, LLC) or to any successor Trustee
thereunder."
(y) Actuarial/Simple Interest Contracts. Except for $145,691.69 aggregate
principal amount of the Contracts on the Cut-Off Date which are 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.
(bb) Minimum and Maximum Contract Rate. As of the Cut-Off Date, the Group I
Contract with the lowest Contract Rate has a Contract Rate of 8.000% and the
Group I Contract with the highest Contract Rate has a Contract Rate of 21.250%
and the Group II Contract with the lowest Contract Rate has a Contract Rate of
5.750% and the Group II Contract with the highest Contract Rate has a Contract
Rate of 18.250%.
Section 3.03 Representations and Warranties Regarding the Contracts in the
Aggregate.
The Contract Seller represents and warrants that as of the Closing Date:
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(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 Group I Contracts have the following
characteristics as of the Cut-Off Date: (i) Group I Contracts representing
approximately 79.5% of the Contracts by remaining principal balance are
attributable to loans for purchases of new Manufactured Homes, and approximately
20.5% by remaining principal balance thereof is attributable to loans for
purchases of used Manufactured Homes; (ii) not more than approximately 7.63% of
the Group I 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 Group I 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
Group I Contracts by remaining principal balance are secured by Manufactured
Homes located in the same manufactured housing park; (iii) no Group I Contract
has a remaining maturity of more than 360 months; (iv) no Group I Contract was
originated before June 1981; (v) the final scheduled payment date on the Group I
Contract with the latest maturity is in March 2031, and (v) approximately 36.0%
of the Group I Contracts by remaining principal balance are secured, or intended
to be secured, in whole or in part by a Land Home Contract. The Group II
Contracts have the following characteristics as of the Cut-Off Date: (i) Group
II Contracts representing approximately 89.4% of the Contracts by remaining
principal balance are attributable to loans for purchases of new Manufactured
Homes, and approximately 10.6% by remaining principal balance thereof is
attributable to loans for purchases of used Manufactured Homes; (ii) not more
than approximately 10.03% of the Group II 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 Group II 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 Group II Contracts by remaining principal
balance are secured by Manufactured Homes located in the same manufactured
housing park; (iii) no Group II Contract has a remaining maturity of more than
360 months; (iv) no Group II Contract was originated before December 1999; (v)
the final scheduled payment date on the Group II Contract with the latest
maturity is in March 2031, (vi) approximately 50.5% of the Group II Contracts by
remaining principal balance are secured, or intended to be secured, in whole or
in part by a Land Home Contract, and (vii) all of the Group II Contracts as of
the Cut-Off Date have an Index based upon Twelve-Month LIBOR.
(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 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 Insurer or the Hedge Counterparty in
selecting the Contracts.
Section 3.04 Representations and Warranties Regarding the Contracts.
The Contract Seller represents and warrants that:
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(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 Insurer, 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 applicable
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
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
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month of repurchase shall be the property of the Contract Seller and need not be
deposited in the applicable 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
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
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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) 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;
(iii) 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, 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
(iv) 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 applicable 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.
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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.
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.
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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 (if the
Trustee 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
(if the Trustee so elects in its discretion) to determine that the correct
amount of Net Liquidation Proceeds in respect of a Liquidated Contract has been
deposited in the applicable Certificate Account.
Section 4.04 Inspection.
(a) At all times during the term hereof, the Servicer shall afford the
Trustee and its authorized agents reasonable access during normal business hours
to the Servicer's records 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 may make, the Trustee or its
authorized agents, 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, (i) the Group I 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 2001-1,
Group I Certificate Account in trust for the Trustee as trustee for the benefit
of the Group I Certificateholders" and (ii) the Group II 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 2001-1, Group II Certificate Account in trust for the Trustee as trustee
for the benefit of the Group II Certificateholders." As of the Closing Date,
each Certificate Account shall be a segregated trust account established at Bank
One, National Association and shall be invested in the One Group Institutional
Prime 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 Accounts, 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 Accounts
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 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 applicable Certificate
Account.
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The Servicer shall deposit in the applicable Certificate Account as
promptly as practicable (but not later than the close of business of the second
Business Day) following receipt thereof:
(1) All amounts received from Obligors with respect to principal of
and interest on the Group I Contracts (including Excess Contract Payments
relating to the Group I Contracts) into the Group I Certificate Account and
all amounts received from Obligors with respect to principal of and
interest on the Group II Contracts (including Excess Contract Payments
relating to the Group II Contracts) into the Group II Certificate Account ;
(2) All Net Liquidation Proceeds relating to the Group I Contracts
into the Group I Certificate Account and all Net Liquidation Proceeds
relating to the Group II Contracts into the Group II Certificate Account;
(3) All amounts required to be deposited by the Contract Seller
pursuant to Sections 3.05(a) and (b) relating to the Group I Contracts into
the Group I Certificate Account and all amounts required to be deposited by
the Contract Seller pursuant to Sections 3.05(a) and (b) relating to the
Group II Contracts into the Group II Certificate Account;
(4) All Monthly Advances pursuant to Section 5.01 relating to the
Group I Contracts into the Group I Certificate Account and all Monthly
Advances pursuant to Section 5.01 relating to the Group II Contracts into
the Group II Certificate Account;
(5) Any proceeds of Hazard Insurance Policies pursuant to Section 4.11
and any amounts in respect of indemnification pursuant to Section 7.03 into
the applicable Certificate Account;
(6) All amounts required to be withdrawn from an REO Account and
deposited in the Group I Certificate Account in accordance with Section
4.17) relating to the Group I Contracts into the Group I Certificate
Account and all amounts required to be withdrawn from an REO Account and
deposited in the Group II Certificate Account in accordance with Section
4.17) relating to the Group II Contracts into the Group II Certificate
Account;
(7) All Deficiency Amounts relating to the Group I Contracts into the
Group I Certificate Account and all Deficiency Amounts relating to the
Group II Contracts into the Group II Certificate Account; and
(8) All amounts received from the Holders of the Class R Certificates
pursuant to Section 11.12(i) hereof into the Group II Certificate Account.
The Trustee shall deposit in the Group I Certificate Account any amounts
received from the Hedge Counterparty pursuant to the Hedge Agreement.
The Co-Trustee shall remit to the Trustee for deposit in the Group I
Certificate Account or Group II Certificate Account, as applicable, all
Enhancement Payments made pursuant to Section 5.08 and received by the
Co-Trustee from the Insurer. The Trustee shall deposit in the Group I
Certificate Account or Group II Certificate Account, as applicable, all
Enhancement Payments received from the Co-Trustee.
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,
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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 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 applicable 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
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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.
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 Accounts.
The Trustee may transfer either Certificate Account to a different
depository institution from time to time, so long as such Certificate Account
remains an Eligible Account. The Trustee shall give notice of any transfer of a
Certificate Account to each Rating Agency 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 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 applicable 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
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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.
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 applicable
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.
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(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 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
49
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 applicable 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 applicable Certificate
Account.
(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.
(a) 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.
(b) 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.
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(c) 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.
(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:
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(i) the Land Home Contract Files;
(ii) the original Land Home Contracts stamped as provided in Section
3.02(x) (which such stamp may be manual or facsimile signature) on behalf
of the Contract Seller; and
(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.
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Section 4.17 REMIC Compliance.
(a) The REMIC Administrator shall make an election to treat the Trust Fund
(other than the Hedge Agreement) 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 Group I Certificates
and Group II 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.
(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
applicable 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.
(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.
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(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 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
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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 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
Accounts 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
55
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."
(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 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 applicable 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.
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(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 applicable 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 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
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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;
(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 or operation 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 Certified Public
58
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 Retitling of Land Home Contracts.
(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 or the Contract Seller shall promptly provide
notice to the Trustee 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 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 that GreenPoint Bank no longer has such ownership
interest. If at any time during the term of this Agreement the Trustee 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 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.
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, (a) in the
Group I Certificate Account the Monthly Advance for the Group I Contracts for
the related Distribution Date and (b) in the Group II Certificate Account the
Monthly Advance for the Group II Contracts for the related Distribution Date,
(ii) direct the Trustee to apply all or a portion of the Excess Contract
Payments in the Group I Certificate Account or Group II Certificate Account, as
applicable, to make the Monthly Advance for the Group I Contracts or Group II
59
Contracts, respectively, 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 as 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 applicable 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
with respect to a Group out of (i) collections of delinquent payments of
principal and interest on Contracts with respect to such Group as to which the
Servicer previously made a Monthly Advance, (ii) available funds in the
applicable 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 applicable 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 with respect to the related Group. If a
Contract becomes a Liquidated Contract and at such time there exists an
Outstanding Amount Advanced with respect to the related Group, then the Servicer
shall reimburse itself out of funds in the applicable 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
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) (A) On each Distribution Date, the Trustee shall withdraw from the
Group I Certificate Account an amount equal to the sum of the Available
Distribution Amount for the Group I Certificates, the Enhancement Payment
relating to the Class I M-2 Certificates, if any, and amounts received pursuant
to clause 5.02 (a)(B)(xiv) for such Distribution Date and apply such amount
(provided that any amount representing an Enhancement Payment shall only be used
with respect to items (iv) and (viii) below), in the following order of
priority, to the distribution of:
(i) to the Co-Trustee for distribution to the Insurer, the Class I M-2
Monthly Premium for that Distribution Date and any Class I M-2 Monthly
Premium remaining unpaid from prior Distribution Dates;
(ii) to the Class I A Certificateholders, the Class I A Interest
Distribution Amount;
(iii) to the Class I M-1 Certificateholders, the Class I M-1 Interest
Distribution Amount;;
(iv) to the Class I M-2 Certificateholders, the Class I M-2 Interest
Distribution Amount;
(v) to the Class I A Certificateholders, an amount equal to any Unpaid
Class I A Principal Shortfall;
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(vi) to the Class I A Certificates, the Class I A Formula Principal
Distribution Amount, until the Class I A Certificate Principal Balance has
been reduced to zero;
(vii) to the Class I M-1 Certificateholders, an amount equal to the
sum of: (A) the Class I M-1 Liquidation Loss Interest Amount, (B) the Class
I M-1 Unpaid Liquidation Loss Interest Shortfall, together with interest
thereon, to the extent legally permissible, at the Class I M-1 Pass-Through
Rate, (C) the Unpaid Class I M-1 Principal Shortfall, if any; and (D) an
amount equal to the Class I M-1 Formula Principal Distribution Amount until
the Class I M-1 Certificate Balance is reduced to zero;
(viii) to the Class I M-2 Certificateholders, an amount equal to the
sum of: (A) the Class I M-2 Liquidation Loss Interest Amount, (B) the Class
I M-2 Unpaid Liquidation Loss Interest Shortfall, together with interest
thereon, to the extent legally permissible, at the Class I M-2 Pass-Through
Rate, (C) the Unpaid Class I M-2 Principal Shortfall, if any, and (D) an
amount equal to the Class I M-2 Formula Principal Distribution Amount,
until the Class I M-2 Certificate Balance has been reduced to zero;
(ix) to the Co-Trustee for distribution to the Insurer, amounts in
respect of any unreimbursed Enhancement Payment made with respect to the
Class I M-2 Certificates and any other amounts owing to the Insurer
pursuant to the Insurance Agreement;
(x) to the Group II Certificate Account to fund any Group II Available
Funds Shortfall; and
(xi) to the Class R Certificateholders, any remaining Available
Distribution Amount in respect of the Group I Certificates.
(B) On each Distribution Date, the Trustee shall withdraw from the Group II
Certificate Account an amount equal to the sum of the Available Distribution
Amount for the Group II Certificates, the Enhancement Payment relating to the
Class II M-2 Certificates, if any, and any amounts received pursuant to clause
5.02(a)(A)(x) for such Distribution Date and apply such amount (provided that
any amount representing an Enhancement Payment shall only be used with respect
to items (iv) and (viii) below), in the following order of priority, to the
distribution of:
(i) to the Co-Trustee for distribution to the Insurer, the Class II
M-2 Monthly Premium for that Distribution Date and any Class II M-2 Monthly
Premium remaining unpaid from prior Distribution Dates;
(ii) to the Class II A Certificateholders, the Class II A Interest
Distribution Amount;
(iii) to the Class II M-1 Certificateholders, the Class II M-1
Interest Distribution Amount;;
(iv) to the Class II M-2 Certificateholders, the Class II M-2 Interest
Distribution Amount;
(v) to the Class II A Certificateholders, an amount equal to any
Unpaid Class II A Principal Shortfall;
(vi) to the Class II A Certificates, the Class II A Formula Principal
Distribution Amount, until the Class II A Certificate Principal Balance has
been reduced to zero;
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(vii) to the Class II M-1 Certificateholders, an amount equal to the
sum of: (A) the Class II M-1 Liquidation Loss Interest Amount, (B) the
Class II M-1 Unpaid Liquidation Loss Interest Shortfall, together with
interest thereon, to the extent legally permissible, at the Class II M-1
Pass-Through Rate, (C) the Unpaid Class II M-1 Principal Shortfall, if any;
and (D) an amount equal to the Class II M-1 Formula Principal Distribution
Amount until the Class II M-1 Certificate Balance is reduced to zero;
(viii) to the Class II M-2 Certificateholders, an amount equal to the
sum of: (A) the Class II M-2 Liquidation Loss Interest Amount, (B) the
Class II M-2 Unpaid Liquidation Loss Interest Shortfall, together with
interest thereon, to the extent legally permissible, at the Class II M-2
Pass-Through Rate, (C) the Unpaid Class II M-2 Principal Shortfall, if any,
and (D) an amount equal to the Class II M-2 Formula Principal Distribution
Amount, until the Class II M-2 Certificate Balance has been reduced to
zero;
(ix) to the Co-Trustee for distribution to the Insurer, amounts in
respect of any unreimbursed Enhancement Payment made with respect to the
Class II M-2 Certificates and any other amounts owing to the Insurer
pursuant to the Insurance Agreement;
(x) to the Servicer, the Subordinated Group II Monthly Servicing Fee;
(xi) to the Class II A Certificateholders, an amount equal to the
Class II A Net Funds Cap Carryover Amount, until the Class II A Net Funds
Cap Carryover Amount is reduced to zero;
(xii) to the Class II M-1 Certificateholders, an amount equal to the
Class II M-1 Net Funds Cap Carryover Amount, until the Class II M-1 Net
Funds Cap Carryover Amount is reduced to zero;
(xiii) to the Class II M-2 Certificateholders, an amount equal to the
Class II M-2 Net Funds Cap Carryover Amount, until the Class II M-2 Net
Funds Cap Carryover Amount is reduced to zero;
(xiv) to the Group I Certificate Account to fund any Group I Available
Funds Shortfall; and
(xv) to the Class R Certificateholders, any remaining Available
Distribution Amount in respect of the Group II Certificates.
Such distributions to the Class I A Certificateholders, Class I M-1
Certificateholders, Class I M-2 Certificateholders, Class II A
Certificateholders, Class II M -1 Certificateholders and Class II M-2
Certificateholders shall be made such that the Trustee shall distribute (a) to
each Class I A Certificateholder as of the preceding Record Date an amount equal
to the product of the aggregate Percentage Interest evidenced by such
Certificateholder's Class I A Certificates and the Class I A Distribution Amount
for such Distribution Date, (b) to each Class I M-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 I M-1 Certificates and the
Class I M-1 Distribution Amount for such Distribution Date, (c) to each Class I
M-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 I M-2 Certificates and the Class I M-2 Distribution
Amount for such Distribution Date, (d) to each Class II A Certificateholder as
of the preceding Record Date an amount equal to the product of the aggregate
Percentage Interest evidenced by such Certificateholder's Class II A
Certificates and the Class II A Distribution Amount for such Distribution
62
Date, (e) to each Class II M-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 II M-1 Certificates and the Class II M-1
Distribution Amount for such Distribution Date, and (f) to each Class II M-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
II M-2 Certificates and the Class II M-2 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 each Certificate Account, the Servicer promptly shall notify the Insurer, 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 related
Certificate Account (solely out of the Available Distribution Amount for such
Distribution Date from such Certificate Account after giving effect to all
distributions to be made prior to 5.02(A)(a)(xi) and 5.02(a)(B)(xv), as
applicable) and distribute the amount specified in Section 5.02(a)(A)(xi) and
5.02(a)(B)(xv) for such Distribution Date to the Class R Certificateholders 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 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 and Exhibit C hereto.
Section 5.03 Permitted Withdrawals from the Certificate Accounts.
(a) The Servicer may, from time to time as provided herein, make
withdrawals from the applicable Certificate Account of amounts deposited therein
pursuant to Section 4.05 that are attributable to the related 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
63
of payments expressly made by the related Obligor to reimburse the Servicer
for such taxes or charges, as permitted by Section 4.06;
(iii) to pay to itself the Group I Monthly Servicing Fee and the
Senior Group II 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 applicable 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) from the Group I Certificate Account after the Class I A
Certificate Balance, Class I M-1 Certificate Balance and Class I M-2
Certificate Balance have been reduced to zero and all amounts owing to the
Insurer pursuant to the Insurance Agreement, including in respect of
amounts paid under the Certificate Insurance Policy relating to the Class I
M-2 Certificates, 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 from the Group II Certificate Account after
the Class II A-1 Certificate Balance and Class II A-2 Certificate Balance
have been reduced to zero and all amounts owing to the Insurer in respect
of amounts paid under the Certificate Insurance Policy relating to the
Class II M-2 Certificates 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 applicable 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 Accounts pursuant to
such clauses.
(b) The Trustee may, from time to time as provided herein, make withdrawals
from the Group I Certificate Account of amounts deposited therein pursuant to
Section 4.05 that are attributable to the Contracts to make payments to the
Hedge Counterparty as required pursuant to the Hedge Agreement. The foregoing
withdrawals from the Group I Certificate Account may be prior to the
distribution of any amounts to Certificateholders on any Distribution Date. All
payments to the Hedge Counterparty shall be first in priority of payment.
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 Hedge Counterparty and the Certificate Administrator
64
to receive a Monthly Report, which report shall include the following
information with respect to the immediately following Distribution Date:
(a) the Class I A Distribution Amount for such Distribution Date;
(b) the amount of principal to be distributed to the Class I A
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clause (a) of the definition of Formula Principal
Distribution Amount and the amount of Unpaid Class I A Principal Shortfall
distributed to such Class;
(c) the amount of interest to be distributed to Class I A
Certificateholders on such Distribution Date (separately identifying any Class I
A Unpaid Interest Shortfall included in such distribution);
(d) the remaining Class I A 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 I M-1 Distribution Amount for such Distribution Date;
(f) the amount of principal to be distributed to the Class I M-1
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clause (a) through (c) of the definition of Formula
Principal Distribution Amount;
(g) the amount of Unpaid Class I M-1 Principal Shortfall distributed to
such Class, the aggregate amount of any Class I M-1 Liquidation Loss Amount, the
Class I M-1 Liquidation Loss Interest Amount, the Class I M-1 Unpaid Liquidation
Loss Interest Shortfall Amount, and the Class I M-1 Principal Shortfall Amount;
(h) the amount of interest to be distributed to Class I M-1
Certificateholders on such Distribution Date (separately identifying any Class I
M-1 Unpaid Interest Shortfall included in such distribution);
(i) the remaining Class I M-1 Certificate Balance and the Class I M-1
Adjusted 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);
(j) the Class I M-2 Distribution Amount for such Distribution Date;
(k) the amount of principal to be distributed to the Class I M-2
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (c) of the definition of Formula
Principal Distribution Amount;
(l) the amount of Unpaid Class I M-2 Principal Shortfall distributed to
such Class, the aggregate amount of any Class I M-2 Liquidation Loss Amount, the
Class I M-2 Liquidation Loss Interest Amount, the Class I M-2 Unpaid Liquidation
Loss Interest Shortfall Amount, and the Class I M-2 Principal Shortfall Amount;
(m) the amount of interest to be distributed to Class I M-2
Certificateholders on such Distribution Date (separately identifying any Class I
M-2 Unpaid Interest Shortfall included in such distribution);
65
(n) the remaining Class I M-2 Certificate Balance and the Class I M-2
Adjusted 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);
(o) the Class II A Distribution Amount for such Distribution Date;
(p) the amount of principal to be distributed to the Class II A
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clause (a) of the definition of Formula Principal
Distribution Amount and the amount of Unpaid Class II A Principal Shortfall
distributed to such Class;
(q) the amount of interest to be distributed to Class II A
Certificateholders on such Distribution Date (separately identifying any Class
II A Unpaid Interest Shortfall included in such distribution);
(r) the remaining Class II A 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);
(s) the Class II M-1 Distribution Amount for such Distribution Date;
(t) the amount of principal to be distributed to the Class II M-1
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clause (a) through (c) of the definition of Formula
Principal Distribution Amount;
(u) the amount of Unpaid Class II M-1 Principal Shortfall distributed to
such Class, the aggregate amount of any Class II M-1 Liquidation Loss Amount,
the Class II M-1 Liquidation Loss Interest Amount, the Class II M-1 Unpaid
Liquidation Loss Interest Shortfall Amount, and the Class II M-1 Principal
Shortfall Amount;
(v) the amount of interest to be distributed to Class II M-1
Certificateholders on such Distribution Date (separately identifying any Class
II M-1 Unpaid Interest Shortfall included in such distribution);
(w) the remaining Class II M-1 Certificate Balance and the Class II M-1
Adjusted 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);
(x) the Class II M-2 Distribution Amount for such Distribution Date;
(y) the amount of principal to be distributed to the Class II M-2
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (c) of the definition of Formula
Principal Distribution Amount;
(z) the amount of Unpaid Class II M-2 Principal Shortfall distributed to
such Class, the aggregate amount of any Class II M-2 Liquidation Loss Amount,
the Class II M-2 Liquidation Loss Interest Amount, the Class II M-2 Unpaid
Liquidation Loss Interest Shortfall Amount, and the Class II M-2 Principal
Shortfall Amount;
(aa) the amount of interest to be distributed to Class II M-2
Certificateholders on such Distribution Date (separately identifying any Class
II M-2 Unpaid Interest Shortfall included in such distribution);
66
(bb) the remaining Class II M-2 Certificate Balance and the Class II M-2
Adjusted 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);
(cc) LIBOR, the Class I A Pass-Through Rate, the Class I M-1 Pass-Through
Rate, the Class I M-2 Pass-Through Rate, the Class II A Pass-Through Rate, the
Class II M-1 Pass-Through Rate and the Class II M-2 Pass-Through Rate;
(dd) the Group I Monthly Servicing Fee, the Senior Group II Monthly
Servicing Fee and the Subordinated Group II Monthly Servicing Fee payable on
such Distribution Date and the aggregate amount of any Subordinated Group II
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;
(ee) the Formula Principal Distribution Amount for the Group I Certificates
and the Formula Principal Distribution Amount for the Group II Certificates,
separately stating the contribution thereto from each of the amounts specified
in clauses (a) through (f) of the definition of Formula Principal Distribution
Amount;
(ff) the amount deposited into the Group II Certificate Account pursuant to
Section 5.02(a)(A)(x) and the amount deposited into the Group I Certificate
Account pursuant to Section 5.02(a)(B)(xiv);
(gg) the number of and aggregate remaining principal balance of Contracts
in each Group with payments delinquent 31 to 59, 60 to 89, and 90 or more days,
respectively;
(hh) 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;
(ii) the aggregate principal balances of all Contracts in each Group that
are not Liquidated Contracts and in respect of which the related Manufactured
Homes have been repossessed or foreclosed upon;
(jj) the Enhancement Payments, if any, for such Distribution Date;
(kk) the amount of any Monthly Advance and the Outstanding Amount Advanced
with respect to such Distribution Date;
(ll) the Class I M-2 Monthly Premium, the Class II M-2 Monthly Premium, the
amount, if any, reimbursed to the Insurer on such Distribution Date and the
amount, if any, to be distributed to the Class R Certificateholders;
(mm) the Net Weighted Average Contract Rate for each Group for the
Collection Period immediately preceding the month of such Distribution Date and
the Net Weighted Average Contract Rate for each Group for the Collection Period
occurring in the month in which such Distribution Date occurs;
67
(nn) the number of Manufactured Homes currently held by the Servicer due to
repossessions and the aggregate principal balance of the related defaulted
Contracts;
(oo) the Pool Principal Balance, expressed as a percentage of the Cut-Off
Date Pool Scheduled Principal Balance, the Group I Pool Scheduled Principal
Balance and the Group II Pool Scheduled Principal Balance;
(pp) the aggregate of the Deficiency Amounts and Servicer Deficiency
Amounts received for the preceding Collection Period;
(qq) amounts paid to the Class II A, Class II M-1 and Class II M-2
Certificateholders on such Distribution Date in respect of the Class II A Net
Funds Carryover Amount, Class II M-1 Net Funds Carryover Amount and Class II M-2
Net Funds Carryover Amount;
(rr) any additional items required to be set forth in the Monthly Report
pursuant to the Insurance Agreement;
(ss) the Cumulative Realized Losses, the Current Realized Loss Ratio and
the Average Sixty-Day Delinquency Ratio for each Group each as of such
Distribution Date; the Average Thirty-Day Delinquency Ratio, the Average
Sixty-Day Delinquency Ratio, the Cumulative Realized Losses and the Twelve-Month
Realized Loss Ratio for the Contract Pool, each as of such Distribution Date;
(tt) whether the Cumulative Realized Loss Test or Principal Distribution
Test has been satisfied as of such Distribution Date and whether such
Distribution Date constitutes the Cross-Over Date;
(uu) the existence of any Servicer Termination Event; and
(vv) 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.
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.
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.
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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;
(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 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 I A Certificateholders, (f)-(h) of Section 5.04, in the case
of Class I M-1 Certificateholders, (k)-(m) of Section 5.04, in the case of Class
I M-2 Certificateholders, (p) and (q) of Section 5.04, in the case of Class II A
Certificateholders, (t)-(v) of Section 5.04, in the case of Class II M-1
Certificateholders, and (y)-(aa) of Section 5.04, in the case of Class II M-2
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.
69
Section 5.08 Certificate Insurance Policy; Enhancement Payments.
(a) The parties hereto acknowledge that the Insurer has provided the
Certificate Insurance Policy in order to provide the Holders of the Class I M-2
and Class II M-2 Certificates with a source of funds to enhance the likelihood
of the receipt by such Certificateholders on each Distribution Date of the
aggregate amount distributable pursuant to Sections 5.02(a)(A)(iv) and (viii)
and 5.02(a)(B)(iv) and (viii), respectively, with respect to such Distribution
Date) into the applicable Certificate Account at least two Business Days prior
to the related Distribution Date.
The parties hereto acknowledge (i) that the Co-Trustee has been retained at
a Pennsylvania office solely to (A) hold the Certificate Insurance Policy on
behalf of the Trust Fund and (B) make and receive payments with respect to the
Certificate Insurance Policy and (ii) that notwithstanding any other provision
of this Agreement, the Co-Trustee shall not undertake nor have any of the duties
or responsibilities of the Trustee and the Trustee shall not be liable for any
actions by the Co-Trustee in this Agreement or the Certificate Insurance Policy.
(b) On the Closing Date, the Co-Trustee shall establish an account for the
benefit of the Class I M-2 and Class II M-2 Certificateholders. The Trustee
shall make all payments made pursuant to Section 5.02 of this Agreement to the
Co-Trustee by wire transfer pursuant to the wiring instructions as described in
Section 9.15(d). Upon receipt of any such wire transfer from the Trustee, the
Co-Trustee will wire such amount to Radian to the account designated by Radian
to the Co-Trustee. With respect to any Distribution Date on which an Enhancement
Payment is required, the Servicer shall prepare and sign a Notice of Payment and
forward such Notice of Payment to the Co-Trustee at least two Business Days
prior to the related Distribution Date. Promptly upon receipt of a Notice of
Payment from the Servicer, the Co-Trustee shall make a claim to the Insurer on
the Certificate Insurance Policy pursuant to such Notice of Payment (and, at the
written request of the Insurer, deliver a copy of such Notice of Payment to the
Bank Agent pursuant to the Certificate Insurance Policy) directing the Insurer
to make payment by wire transfer to the Co-Trustee.
(c) If, in respect of any Distribution Date, the Trustee is holding in the
applicable Certificate Account all or part of any Enhancement Payment for such
Distribution Date, then the Trustee shall distribute to the Class I M-2 and
Class II M-2 Certificates, as applicable, pursuant to Sections 5.02(a)(A)(iv)
and (viii) and 5.02(a)(B)(iv) and (viii), respectively, such Enhancement Payment
together with the Available Distribution Amount for such Group and any amounts
received from the Group I Certificate Account or Group II Certificate Account,
as applicable, pursuant to Sections 5.02(a)(A)(x) or 5.02(a)(B)(xiv),
respectively.
(d) Notwithstanding the foregoing, no Enhancement Payments made under the
Certificate Insurance Policy shall be used to pay amounts owing under this
Agreement to any of the Holders of the Class I A, Class I M-1, Class II A or
Class II M-1 Certificates.
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates.
The Certificates shall be substantially in the forms attached hereto as
Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇ ▇-▇,
Exhibit C and Exhibit D. The Class I A, Class I M-1, Class I M-2, Class II A,
Class II M-1 and Class II M-2 Certificates shall be issuable in registered form,
in the
70
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:
Integral
Multiples in
Minimum Excess of Latest Scheduled Initial Certificate
Class Denomination Minimum Distribution Date Balance
-------- ------------ ------------- ----------------- -------------------
I A $50,000 $1 April 2032 $103,471,000
I M-1 $50,000 $1 April 2032 $9,286,000
I M-2 $50,000 $1 April 2032 $19,899,107
II A $50,000 $1 April 2032 $97,304,000
II M-1 $50,000 $1 April 2032 $8,340,000
II M-2 $50,000 $1 April 2032 $33,362,323
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.
71
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 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 Hedge Counterparty, the Insurer or the
Servicer, acceptable to and in form and substance satisfactory to the Trustee,
the Contract Seller, the Insurer 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 (as to the Class R Certificates) or Exhibit J (as to
the Class I Certificates). Notwithstanding the foregoing, an Opinion of Counsel
or representation letter will not be required with respect to the transfer of
any Class I Certificate to the Depository, or for any subsequent transfer of any
interest in a Class I Certificate for so long as such Certificate is a Global
Certificate (each such Class I Certificate, a "Global ERISA Restricted
Certificate"). Any transferee of a Global ERISA Restricted Certificate will be
deemed to have represented by virtue of its purchase or holding of such
Certificate (or interest therein) that either (a) such transferee is not an
employee benefit plan or other plan subject to the prohibited transaction
provisions of ERISA or Section 4975 of the Code, or any Person (including an
investment manager, a named fiduciary or a trustee of any such plan) who is
using "plan assets" of any such plan to effect such acquisition (each, a "Plan
Investor") or (b) such transferee is a "Qualified Plan Investor" (as defined in
U.S. Department of Labor Prohibited Transaction Class Exemption ("PTCE")
2000-58). If any Class I Certificate (or any interest therein) is acquired or
held in violation of the provisions of clause (ii) of the first sentence of this
Section 6.02(b) or clause (b) of the third sentence of this Section 6.02(b),
then the last preceding transferee that either (i) is not a Plan Investor or
(ii) is a Qualified Plan Investor shall be restored, to the extent permitted by
law, to all rights and obligations as Certificateholder thereof retroactive to
the date of such transfer of such Class I Certificate. Any purported
Certificateholder whose acquisition or holding of any Global ERISA Restricted
Certificate (or interest therein) was effected in violation of the restrictions
in this Section 6.02(b) shall indemnify and hold harmless the Trustee, the
Contract Seller, the Servicer, 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. The Trustee shall be under no liability to any
Person for making any payments due on any Certificate to such preceding
transferee that is not a Plan Investor or a Qualified Plan Investor.
(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
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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.
(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
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1.860E-1 or Section 1.860G-3, 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. 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 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.
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(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 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:
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(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 Group I Certificates and Group II
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.
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 Group I
Certificates and Group II 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
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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.
Section 7.02 Servicer's Indemnities.
The Servicer shall defend and indemnify the Trust Fund, the Trustee, the
Co-Trustee, 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
applicable 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.
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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, 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 addressed to the Trustee, to maintain the perfection of the interests 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 the Contract Seller nor
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.
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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 the Insurer (provided that if an Insurer Default has occurred and is
continuing, no consent of the Insurer needs to be obtained), which consent 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.
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 and the Insurer (provided that if an Insurer Default has
occurred and is continuing, no consent of the Insurer needs to be obtained),
which consent 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
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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 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 Accounts 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.
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 Insurer or 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 Insurer or 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
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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
(which consent shall not be unreasonably withheld; provided that if an Insurer
Default has occurred and is continuing, no consent of the Insurer needs to be
obtained) and, the Trustee shall at the written direction of the Holders of
Certificates (for purposes of such direction, the Insurer shall direct on behalf
of the Class I M-2 and Class II M-2 Certificates so long as no Insurer Default
has occurred and is continuing) 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 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 or the Insurer unless such
Certificateholders 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 Holders of Certificates evidencing Fractional Interests aggregating not
less than 25% may waive (for purposes of such waiver, the Insurer shall direct
on behalf of the Class I M-2 and Class II M-2 Certificates so long as no Insurer
Default has occurred and is continuing) 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
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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 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.
(c) A transfer of servicing duties to a successor Servicer shall not affect
the rights and duties of the parties hereunder (including but not limited to the
indemnities of the Servicer pursuant to Article VII).
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:
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(a) the Cumulative Realized Losses as of such Distribution Date exceed
12.2% of the Cut-Off Date Pool Principal Balance; or
(b) the Twelve-Month Realized Loss Ratio exceeds 2.5% and the Twelve-Month
Realized Loss Ratio continues to exceed 2.5% for a period of six
months or more; or
(c) the Average 30-Day Delinquency Ratio exceeds 4.5% and the Average
30-Day Delinquency Ratio continues to exceed 4.5% for a period of
three months or more; or
(d) the Average 60-Day Delinquency Ratio exceeds 3.5% and the Average
60-Day Delinquency Ratio continues to exceed 3.5% for a period of
three months or more; or
then, in each and every such case, and so long as no Insurer Default has
occurred and is continuing, the Insurer may send written notice to
Certificateholders of its intention to remove the Servicer and appoint a
successor Servicer and the date on which such removal will take place; provided,
however, that such date shall be at least 30 calendar days from the date of such
notice. The Insurer may remove the Servicer and appoint a successor Servicer on
the date specified in its notice to Certificateholders unless the Holders of
Certificates (for purposes of such direction, the Insurer shall direct on behalf
of the Class I M-2 and Class II M-2 Certificates so long as no Insurer Default
has occurred and is continuing) evidencing Fractional Interests aggregating not
less than 51% notify the Insurer by such date that they prohibit the Insurer
from removing the Servicer. Neither the Trustee nor the Certificateholders shall
have the right to initiate removal of 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 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
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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 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 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 or the Insurer pursuant to the provisions of this
Agreement, unless such Certificateholders 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
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aggregating not less than 25% (for purposes of such writing, the Insurer shall
direct on behalf of the Class I M-2 and Class II M-2 Certificates so long as no
Insurer Default has occurred and is continuing); 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 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 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 Co-Trustee, the Paying Agent and the Certificate Administrator from
time to time, and the Trustee, the Co-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 Co-Trustee, and
the Servicer will pay (out of its own funds) or reimburse the Trustee, the
Co-Trustee, the Paying Agent and the Certificate Administrator, to the extent
requested by the Trustee, the Co-Trustee, the Paying Agent or the
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Certificate Administrator, as the case may be, for all reasonable expenses,
disbursements and advances incurred or made by the Trustee, the Co-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 Co-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 Co-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
Co-Trustee, the Paying Agent and the Certificate Administrator in their
respective capacities as Trustee, Co-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 Insurer, 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 Insurer; 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 and each Rating Agency. Upon receiving such notice of resignation,
the Contract Seller and the Insurer (provided that if an Insurer Default has
occurred and is continuing, no such consent needs to be obtained from the
Insurer) 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
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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.
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% (provided that if no Insurer Default has occurred and is
continuing, the Insurer shall be deemed to be the Holder of the Class I M-2 and
Class II M-2 Certificates for the purpose of this paragraph) 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 such consent needs to be obtained from the Insurer) 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.
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Section 9.09 Merger or Consolidation of Trustee.
Any corporation or banking association into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation or banking
association resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or banking association succeeding
to the business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation or banking association 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 Insurer, 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 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.
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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.
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 applicable
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
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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.
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.
Section 9.15 The Co-Trustee for the Certificate Insurance Policy.
(a) The Co-Trustee hereunder shall, at all times, be a corporation or
association organized and doing business under the laws of a state or the United
States of America, authorized under such laws to exercise corporate trust
powers. In case at any time the Co-Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Co-Trustee shall resign
immediately in the manner and with the effect specified in Section 9.15(b)
hereof. The corporation or national banking association serving as Co-Trustee
may have normal banking and trust relationships with the Trustee, the Insurer,
the Contract Seller and the Servicer and their respective affiliates.
(b) The Co-Trustee may at any time resign and be discharged from the trusts
hereby created by (1) giving written notice of resignation to the Trustee, the
Insurer, the Contract Seller and the Servicer, not less than 60 days before the
date specified in such notice when, subject to Section 9.15(c), such resignation
is to take effect, and (2) acceptance of appointment by a successor co-trustee
in accordance with Section 9.15(c) and meeting the qualifications set forth in
Section 9.15(a). If no successor co-trustee shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Co-Trustee may petition any court of competent
jurisdiction for the appointment of a successor co-trustee.
If at any time (i) the Co-Trustee shall cease to be eligible in accordance
with the provisions of Section 9.15(a) hereof and shall fail to resign after
written request thereto by the Contract Seller, or (ii) the Co-Trustee shall
become incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Co-Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Co-Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Trustee, the Insurer, the Contract Seller or the Servicer may remove the
Co-Trustee and appoint a successor co-trustee by written instrument, in
triplicate, one copy of which instrument shall be delivered to the Co-Trustee,
one copy of which shall be delivered to the Servicer and one copy of which shall
be delivered to the successor co-trustee.
Any resignation or removal of the Co-Trustee and appointment of a successor
co-trustee pursuant to any of the provisions of this Section 9.15(b) shall
become effective upon acceptance of appointment by the successor co-trustee as
provided in Section 9.15(c) hereof.
(c) Any successor co-trustee appointed as provided in Section 9.15(b)
hereof shall (i) be acceptable to the Insurer, (ii) take all actions required by
this Agreement by and through a Pennsylvania office and (iii) execute,
acknowledge and deliver to the Trustee, the Insurer, the Contract Seller, the
Servicer
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and to its predecessor co-trustee an instrument accepting such appointment
hereunder; and thereupon the resignation or removal of the predecessor
co-trustee shall become effective and such successor co-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 co-trustee herein.
(d) The wiring instructions for the initial Co-Trustee are:
First Union National Bank
Charlotte, NC ABA# ▇▇▇▇▇▇▇▇▇
D/5000000016439 FFC: 1576021860/GreenPoint Credit 2001-1
Attention to: CT1870 ▇▇▇▇▇▇ ▇▇▇▇▇▇
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 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 I A Unpaid Interest Shortfall, Class
I M-1 Unpaid Interest Shortfall, Class I M-2 Unpaid Interest Shortfall, Class II
A Unpaid Interest Shortfall, Class II M-1 Unpaid Interest Shortfall and Class II
M-2 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 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
Co-Trustee shall retain possession of Certificate Insurance Policy as collateral
agent for the benefit of the Class I M-2 and Class II M-2 Certificateholders,
and if any amount
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previously distributed in accordance with Section 5.02(a) is thereafter required
to be paid under the Certificate Insurance Policy, the Co-Trustee as collateral
agent shall make a claim under the Certificate Insurance Policy for such amount
in accordance with Section 5.08 and distribute such amount as required under the
Certificate Insurance Policy.
(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 K 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 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 Enhancement Payments plus any other amounts due and
owing to the Insurer hereunder or pursuant to the Insurance Agreement plus
an amount sufficient to pay any termination fees owed to the Hedge
Counterparty pursuant to the Hedge Agreement;
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(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.
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 applicable 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 Hedge
Counterparty, the Trustee, the Contract Seller and each Rating Agency
mailed no later than the 20th 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
applicable 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 applicable Certificate
Account, to Certificateholders, in proportion to their respective
Percentage Interests, an amount equal to (a) as to the Class I A
Certificates, the Class I A Certificate Balance together with the Class I A
Unpaid Interest Shortfall and one month's interest at the Class I A
Pass-Through Rate on the Class I A Certificate Balance, (b) as to the Class
I M-1 Certificates, the Class I M-1 Certificate Balance together with the
Class I M-1 Unpaid Interest Shortfall and one month's interest at the Class
I M-1 Pass-Through Rate on the Class I M-1 Certificate Balance, (c) as to
the Class I M-2 Certificates, the Class I M-2 Certificate Balance together
with the Class I M-2 Unpaid Interest Shortfall and one month's interest at
the Class I M-2 Pass-Through Rate on the Class I M-2 Certificate Balance,
(d) as to the Class II A Certificates, the Class II A Certificate Balance
together with the Class II A Unpaid Interest Shortfall and one month's
interest at the Class II A Pass-Through Rate on the Class II A Certificate
Balance, (e) as to the Class II M-1 Certificates, the Class II M-1
Certificate Balance together with the Class II M-1
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Unpaid Interest Shortfall and one month's interest at the Class II M-1
Pass-Through Rate on the Class II M-1 Certificate Balance, (f) as to the
Class II M-2 Certificates, the Class II M-2 Certificate Balance together
with the Class II M-2 Unpaid Interest Shortfall and one month's interest at
the Class II M-2 Pass-Through Rate on the Class II M-2 Certificate Balance,
(g) any termination payments to the Hedge Counterparty and (i) any
unreimbursed Enhancement Payments and other amounts due to the Insurer
pursuant to the Insurance Agreement to the Co-Trustee for distribution to
the Insurer.
(iii) Upon such termination, any amounts remaining in the Certificate
Accounts (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 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 applicable
Certificate Account that are owed to such Certificateholder shall be withdrawn
from the applicable 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.
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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.
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, which consent shall
not be unreasonably withheld (provided that if an Insurer Default has occurred
and is continuing, no such consent needs to be obtained from the Insurer) 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 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 consent needs to be
obtained from the Insurer) and 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 the Certificateholders, 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.
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, which
consent shall not be unreasonably withheld (provided that if an Insurer Default
has occurred and is continuing, no such consent needs to be obtained from the
Insurer) and 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
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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 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.
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 on
the basis of the actual number of days elapsed during the
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related Interest Accrual Period and a 360 day year and, in each case, 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
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.
(b) 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 Trustee and the Co-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 and the Servicer; (c) in the case of the
Co-Trustee: First Union National Bank, 123 South Broad Street, Mail Code PA
1249, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Administration; (d) in the case of the Insurer, Radian Insurance Inc., ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇. ▇▇▇▇▇▇▇▇▇ More
Jr. or such other address as the Insurer may hereafter furnish to the Contract
Seller, the Trustee, the Co-Trustee and the Servicer; (e) in the case of the
Hedge Counterparty, Citibank, N.A., c/o Capital Markets Legal Group, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Department Head or such
other address as the Hedge Counterparty may hereafter furnish to the Contract
Seller, the Trustee, the Co-Trustee, the Insurer and the Servicer; and (f) in
the case of the Rating Agencies, (i) ▇▇▇▇▇'▇ Investors Service, Inc.,
Manufactured Housing Monitoring Department, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
97
10007 and (iii) Standard & Poor's Credit Market Services, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. 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.
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.
98
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
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; Extinguishment of Rights.
Each of the Insurer and the Hedge Counterparty shall be a third party
beneficiary of this Agreement. The Insurer 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.
In the event that the Class I A, Class I M-1, Class II A and Class II M-1
Certificates are outstanding at the time that the Class I M-2 and Class II M-2
Certificates have been paid in full hereunder and all amounts owing the Insurer
pursuant to the terms of the Insurance Agreement have been paid and the
Certificate Insurance Policy has been terminated in accordance with its terms,
all rights (including, but not limited to, voting, waiver, consent and Servicer
removal rights) of the Insurer hereunder shall terminate.
Section 11.12 Purchases Upon Conversion.
The Holders of the Class R Certificates, by their acceptance of such
Certificates shall agree that with respect to each Group II Contract that
converts from a variable Contract Rate to a fixed Contract Rate during any
Collection Period pursuant to the terms of such Contract that they will:
(i) Repurchase such Contracts not later than the 5th day following
such Collection Period at a price equal to the Scheduled Principal Balance
of such Contract on the date of such conversion, plus all accrued and
unpaid interest thereon to such date of conversion. Amounts in respect of
such price shall be delivered to the Servicer for deposit to the Group II
Certificate Account.
(ii) Any amounts received as payment in respect of any such Contract
repurchased pursuant to clause (i) above after the date of repurchase
(other than the amount referred to in clause (i) above), shall not be a
part of the Trust Fund and shall be paid by the Servicer to the Holders of
the Class R Certificates or, if such amounts have been deposited into the
Group II Certificate
99
Account, shall be withdrawn therefrom by the Servicer and paid by the
Servicer to the Holders of the Class R Certificates.
Promptly after the purchase referred to in this Section 11.12, the Trustee
shall execute such documents as are presented to it by the Servicer on behalf of
the Holder of the Class R Certificate and are reasonably necessary to convey the
purchased Contract to the Holder of the Class R Certificate.
100
IN WITNESS WHEREOF, GreenPoint, the Trustee and the Co-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:
-----------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
FIRST UNION NATIONAL BANK,
not in its individual capacity, but solely as Co-Trustee
By:
-----------------------------------------------------
Name:
Title:
GREENPOINT CREDIT, LLC,
as Contract Seller and Servicer
By:
-----------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On March
---, 2001 before me, --------------- , Notary Public,
personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity and that
by his signature on the instrument the person, or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------
Notary Public
My Commission expires
------------------------
[Notarial Seal]
STATE OF ILLINOIS )
) ss.
COUNTY OF ▇▇▇▇ )
On this th day of March, 2001, 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.
------------------------------
Notary Public
My Commission expires
------------------------
[Notarial Seal]
STATE OF PENNSYLVANIA )
) ss.
COUNTY OF [ ] )
------------
On this th day of March, 2001, before me, , a
--- ---------------------
notary public in and for said State, appeared , personally
-------------------
known to me on the basis of satisfactory evidence to be a of First
-----------
Union National Bank, 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.
------------------------------
Notary Public
My Commission expires
------------------------
[Notarial Seal]
EXHIBIT INDEX
Exhibit A-1 ...........Group I Contract Schedule
Exhibit A-2 ...........Group II Contract Schedule
Exhibit B-1 ...........Form of Class I A Certificate
Exhibit B-2 ...........Form of Class I M-1 Certificate
Exhibit B-3 ...........Form of Class I M-2 Certificate
Exhibit B-4 ...........Form of Class II A Certificate
Exhibit B-5 ...........Form of Class II M-1 Certificate
Exhibit B-6 ...........Form of Class II M-2 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 H..............Form of Certificate Insurance Policy
Exhibit I .............Form of Depository Agreement
Exhibit J .............Form of ERISA Representations Letter
Exhibit K .............Termination Auction Procedures
EXHIBIT A-1
GROUP I CONTRACT SCHEDULE
(On file with the Trustee)
Exhibit ▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
GROUP II CONTRACT SCHEDULE
(On file with the Trustee)
Exhibit ▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS I A 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. 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 EITHER (A) SUCH TRANSFEREE
IS NOT A PLAN INVESTOR OR (B) SUCH TRANSFEREE IS A QUALIFIED 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
Exhibit B-1-1
THAT EITHER (I) IS NOT A PLAN INVESTOR OR (II) IS A QUALIFIED
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.
Certificate No. : I A-
---
Date of Pooling and Servicing Agreement : ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇-▇▇▇ Date : February 28, 2001
First Distribution Date : April 20, 2001
Initial Certificate Balance of
this Certificate ("Denomination") : $
---------------
Initial Certificate Balance of all
Class I A Certificates : $103,471,000
Pass-Through Rate : LIBOR plus 0.34% per annum.
Month of Last Scheduled
Distribution Date : April 2032
CUSIP : 395383 BC 5
Exhibit B-1-2
GREENPOINT CREDIT MANUFACTURED HOUSING CONTRACT TRUST
PASS-THROUGH CERTIFICATES
SERIES 2001-1
evidencing a percentage interest in any distributions allocable to the
Class I A 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 the Contract
Seller and are initially serviced by GreenPoint Credit, LLC, in its capacity as
the Servicer (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 I A
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 March 1, 2001
(the "Agreement"), among the Contract Seller, the 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
20th day of each month or, if such 20th 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 I A Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the Business Day preceding such Distribution Date.
Distributions to the Holder of this Class I A 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 I A
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check 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
Exhibit B-1-3
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
No transfer of this Class I A 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 the Class I A 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
the Agreement or (ii) a representation letter, in the form as described by the
Agreement, stating either (a) 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, or (b) that the transferee is a "Qualified Plan Investor" (within the
meaning of Department of Labor Prohibited Transaction Class Exemption ("PTCE")
2000-58).
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 B-1-4
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 I A 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 I M-1 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. 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 EITHER (A) SUCH TRANSFEREE
IS NOT A PLAN INVESTOR OR (B) SUCH TRANSFEREE IS A QUALIFIED 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
Exhibit B-2-1
THAT EITHER (I) IS NOT A PLAN INVESTOR OR (II) IS A QUALIFIED
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 CONTRACT SELLER, THE SERVICER 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.
THIS CLASS I M-1 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS I
A CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
Certificate No. : I M-1-
-----
Date of Pooling and Servicing Agreement : ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇-▇▇▇ Date : February 28, 2001
First Distribution Date : April 20, 2001
Initial Certificate Balance of
this Certificate ("Denomination") : $
------------------
Initial Certificate Balance of all
Class I M-1 Certificates : $9,286,000
Pass-Through Rate : LIBOR plus 0.87% per annum.
Month of Last Scheduled
Distribution Date : April 2032
CUSIP : 395383 BD 3
Exhibit B-2-2
GREENPOINT CREDIT MANUFACTURED HOUSING CONTRACT TRUST
PASS-THROUGH CERTIFICATES
SERIES 2001-1
evidencing a percentage interest in any distributions allocable to the
Class I M-1 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 the Contract
Seller and are initially serviced by GreenPoint Credit, LLC, in its capacity as
the Servicer (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 I M-1
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Seller and Servicer. The
Trust Fund was created pursuant to a Pooling and Servicing Agreement, dated as
of March 1, 2001 (the "Agreement"), among the Contract Seller, the 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
20th day of each month or, if such 20th 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 I M-1 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the Business Day preceding such Distribution Date.
Distributions to the Holder of this Class I M-1 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 I M-1
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check 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
Exhibit B-2-3
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
No transfer of this Class I M-1 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 the Class I M-1 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
the Agreement or (ii) a representation letter, in the form as described by the
Agreement, stating either (a) 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, or (b) that the transferee is a "Qualified Plan Investor" (within the
meaning of Department of Labor Prohibited Transaction Class Exemption ("PTCE")
2000-58).
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 B-2-4
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 I M-1 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 I M-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. 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 EITHER (A) SUCH TRANSFEREE
IS NOT A PLAN INVESTOR OR (B) SUCH TRANSFEREE IS A QUALIFIED 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
Exhibit B-3-1
THAT EITHER (I) IS NOT A PLAN INVESTOR OR (II) IS A QUALIFIED
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 CONTRACT SELLER, THE SERVICER 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.
THIS CLASS I M-2 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS I
A AND CLASS I M-1 CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
Certificate No. : I M-2-
-----
Date of Pooling and Servicing Agreement : ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇-▇▇▇ Date : February 28, 2001
First Distribution Date : April 20, 2001
Initial Certificate Balance of
this Certificate ("Denomination") : $
------------------
Initial Certificate Balance of all
Class I M-2 Certificates : $19,899,107
Pass-Through Rate : LIBOR plus 1.27% per annum.
Month of Last Scheduled
Distribution Date : April 2032
CUSIP : 395383 BE 1
Exhibit B-3-2
GREENPOINT CREDIT MANUFACTURED HOUSING CONTRACT TRUST
PASS-THROUGH CERTIFICATES
SERIES 2001-1
evidencing a percentage interest in any distributions allocable to the
Class I M-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 the Contract
Seller and are initially serviced by GreenPoint Credit, LLC, in its capacity as
the Servicer (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 I M-2
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Seller and Servicer. The
Trust Fund was created pursuant to a Pooling and Servicing Agreement, dated as
of March 1, 2001 (the "Agreement"), among the Contract Seller, the 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
20th day of each month or, if such 20th 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 I M-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 Business Day preceding such Distribution Date.
Distributions to the Holder of this Class I M-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 I M-2
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check 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
Exhibit B-3-3
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
No transfer of this Class I M-2 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 the Class I M-2 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
the Agreement or (ii) a representation letter, in the form as described by the
Agreement, stating either (a) 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, or (b) that the transferee is a "Qualified Plan Investor" (within the
meaning of Department of Labor Prohibited Transaction Class Exemption ("PTCE")
2000-58).
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 B-3-4
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 I M-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 II A 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").
Certificate No. : II A-
-----
Date of Pooling and Servicing Agreement : ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇-▇▇▇ Date : February 28, 2001
First Distribution Date : April 20, 2001
Initial Certificate Balance of
this Certificate ("Denomination") : $
------------------
Initial Certificate Balance of all
Class II A Certificates : $97,304,000
Pass-Through Rate : The lesser of (a) LIBOR plus
0.42% per annum and (b) the
Weighted Average Net Contract
Rate of the Group II Contracts.
Month of Last Scheduled
Distribution Date : April 2032
CUSIP : 395383 BF 8
Exhibit B-4-1
GREENPOINT CREDIT MANUFACTURED HOUSING CONTRACT TRUST
PASS-THROUGH CERTIFICATES
SERIES 2001-1
evidencing a percentage interest in any distributions allocable to the
Class II A 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 the Contract
Seller and are initially serviced by GreenPoint Credit, LLC, in its capacity as
the Servicer (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 II A
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 March 1, 2001
(the "Agreement"), among the Contract Seller, the 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
20th day of each month or, if such 20th 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 II A Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the Business Day preceding such Distribution Date.
Distributions to the Holder of this Class II A 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 II A
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check 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
Exhibit B-4-2
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.
* * *
Exhibit B-4-3
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 II A 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 II M-1 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").
THIS CLASS II M-1 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS
II A CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
Certificate No. : II M-1-
-----
Date of Pooling and Servicing Agreement : ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇-▇▇▇ Date : February 28, 2001
First Distribution Date : April 20, 2001
Initial Certificate Balance of
this Certificate ("Denomination") : $
-----------------
Initial Certificate Balance of all
Class II M-1 Certificates : $8,340,000
Pass-Through Rate : The lesser of (a) LIBOR plus
0.95% per annum and (b) the
Weighted Average Net Contract
Rate of the Group II Contracts.
Month of Last Scheduled
Distribution Date : April 2032
CUSIP : 395383 BG 6
Exhibit B-5-1
GREENPOINT CREDIT MANUFACTURED HOUSING CONTRACT TRUST
PASS-THROUGH CERTIFICATES
SERIES 2001-1
evidencing a percentage interest in any distributions allocable to the
Class II M-1 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 the Contract
Seller and are initially serviced by GreenPoint Credit, LLC, in its capacity as
the Servicer (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 II M-1
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Seller and Servicer. The
Trust Fund was created pursuant to a Pooling and Servicing Agreement, dated as
of March 1, 2001 (the "Agreement"), among the Contract Seller, the 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
20th day of each month or, if such 20th 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 II M-1 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the Business Day preceding such Distribution Date.
Distributions to the Holder of this Class II M-1 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 II M-1
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check 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
Exhibit B-5-2
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.
* * *
Exhibit B-5-3
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 II M-1 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 II M-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").
THIS CLASS II M-2 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS
II A AND CLASS II M-1 CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO
HEREIN.
Certificate No. : II M-2-
-----
Date of Pooling and Servicing Agreement : ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇-▇▇▇ Date : February 28, 2001
First Distribution Date : April 20, 2001
Initial Certificate Balance of
this Certificate ("Denomination") : $
----------------
Initial Certificate Balance of all
Class II M-2 Certificates : $33,362,323
Pass-Through Rate : The lesser of (a) LIBOR plus
1.45% per annum and (b) the
Weighted Average Net Contract
Rate of the Group II Contracts.
Month of Last Scheduled
Distribution Date : April 2032
CUSIP : 395383 BH 4
Exhibit B-6-1
GREENPOINT CREDIT MANUFACTURED HOUSING CONTRACT TRUST
PASS-THROUGH CERTIFICATES
SERIES 2001-1
evidencing a percentage interest in any distributions allocable to the
Class II M-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 the Contract
Seller and are initially serviced by GreenPoint Credit, LLC, in its capacity as
the Servicer (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 II M-2
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Seller and Servicer. The
Trust Fund was created pursuant to a Pooling and Servicing Agreement, dated as
of March 1, 2001 (the "Agreement"), among the Contract Seller, the 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
20th day of each month or, if such 20th 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 II M-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 Business Day preceding such Distribution Date.
Distributions to the Holder of this Class II M-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 II M-2
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check 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
Exhibit B-6-2
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.
* * *
Exhibit B-6-3
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 II M-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 B-6-4
EXHIBIT C
FORM OF REVERSE OF CERTIFICATES
GREENPOINT CREDIT MANUFACTURED HOUSING CONTRACT TRUST
PASS-THROUGH CERTIFICATES
SERIES 2001-1
This Certificate is one of a duly authorized issue of Certificates
designated as GreenPoint Credit Manufactured Housing Contract Trust Pass-Through
Certificates, Series 2001-1 issued in seven Classes (Class I A, Class I M-1,
Class I M-2, Class II A, Class II M-1, Class II M-2 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 related 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 related 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 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.
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
Exhibit C-1
authorized denominations and evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
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 20th 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 I A Unpaid Interest Shortfall, Class I M-1
Unpaid Interest Shortfall, Class I M-2 Unpaid Interest Shortfall, Class II A
Unpaid Interest Shortfall, Class II M-1 Unpaid Interest Shortfall and Class II
M-2 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 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 other amounts due and owing to the Insurer pursuant to the Agreement or
pursuant to the Insurance Agreement, plus any unreimbursed Draw Amounts. Such a
bid must be made in accordance with certain auction procedures set forth in the
Agreement, which include a requirement
Exhibit C-2
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, the
Servicer 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; provided that if the Trust Fund is dissolved prior to
the termination of the Certificate Insurance Policy and the Hedge Agreement, 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 or the
Hedge Agreement, the Trustee as collateral agent shall make a claim under the
Certificate Insurance Policy or the Hedge Agreement for such amount in
accordance with Section 5.08 and distribute such amount as required under the
Certificate Insurance Policy or the Hedge 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-3
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-4
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
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.
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. THE HOLDERS OF THE CLASS R CERTIFICATES, BY
PURCHASING SUCH CLASS R CERTIFICATES, SHALL BE FURTHER DEEMED TO AGREE TO
EXECUTE ANY
Exhibit D-1
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 CLASS I
CERTIFICATES AND CLASS II CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO
HEREIN.
Certificate No. : R-
-----
Date of Pooling and
Servicing Agreement : ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇-▇▇▇ Date : February 28, 2001
First Distribution Date : April 20, 2001
Percentage Interest
Evidenced by this. %
Class R Certificate -----
Exhibit D-2
GREENPOINT CREDIT MANUFACTURED HOUSING CONTRACT TRUST
PASS-THROUGH CERTIFICATES
SERIES 2001-1
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 the Contract
Seller and are initially serviced by GreenPoint Credit, LLC, in its capacity as
the Servicer (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 March 1, 2001 (the "Agreement"), among the Contract
Seller, the 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.
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 Contract Seller, the Servicer 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
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
Exhibit D-3
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 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 March 1, 2001, among the Contract Seller, the 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
, 2001. ----
------------
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][federal savings bank] (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 March 1, 2001, among GreenPoint Credit, LLC, in its
capacity as Contract Seller and in its capacity as 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:
1. 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
2. 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
, 2001. ----
--------
[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 2001-1, 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 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
Exhibit G-1-1
"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 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.
10. The Owner's Taxpayer Identification Number is
---------------.
11. 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.
Exhibit G-1-2
12. 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.
13. 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.
14. 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.
15. 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.
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 , 2001.
---- ---------
[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 , 2001.
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Exhibit G-1-3
------------------------------------------
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:
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▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Bank One, National Association,
as Trustee
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: GreenPoint Credit Manufactured Housing Contract Trust
Pass-Through Certificates, Series 2001-1
-----------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
--------
(the "Transferor") to (the "Buyer") of % Percentage Interest of
--------- --
GreenPoint Credit Manufactured Housing Contract Trust Pass-Through Certificates,
Series 2001-1, Class R (the "Certificates"), issued pursuant to Section 6.02(c)
of the Pooling and Servicing Agreement (the "Agreement"), dated as of March 1,
2001, among GreenPoint Credit, LLC, in its capacity as Contract Seller (the
"Contract Seller") and in its capacity as Servicer (the "Servicer") and Bank
One, National Association (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, the Servicer 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.
4. The Transferor has no actual knowledge that the proposed Buyer is not
both a United States Person and a Permitted Transferee.
Exhibit G-2-1
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 H
FORM OF CERTIFICATE INSURANCE POLICY
(a copy can be obtained from the Trustee)
Exhibit H-1
EXHIBIT I
FORM OF DEPOSITORY AGREEMENT
(see DTC Letter of Representation)
Exhibit I-1
EXHIBIT J
ERISA REPRESENTATION LETTER
[date]
GreenPoint Credit, LLC
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▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Bank One, National Association
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: GreenPoint Credit Manufactured Housing Contract Trust
Pass-Through Certificates, Series 2001-1 - Class I [ ] 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 March 1, 2001, among GreenPoint Credit, LLC,
as seller and servicer ("GreenPoint"), Bank One, National Association, as
trustee (the "Trustee") and First Union National Bank, as co-trustee. All terms
used herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement.
(a) The Purchaser hereby certifies, represents and warrants to, and
covenants with GreenPoint and the Trustee that it is a Qualified Plan Investor.
"Qualified Plan Investor" means a Plan investor or group of Plan investors on
whose behalf the decision to purchase the Class I [ ] Certificates is made by an
appropriate independent fiduciary who is qualified to analyze and understand the
terms and conditions of the interest rate swap transaction and the effect the
interest rate swap would have upon the credit ratings of the Class I
Certificates.
(b) The Purchaser further certifies, represents and warrants to, and
covenants with GreenPoint and the Trustee that the independent fiduciary
referenced in paragraph (a) above is either:
(1) A "qualified professional asset manager" or "QPAM" (as defined
under Part V(a) of PTCE 84-14, 49 FR 9494, 9506 (March 13, 1984)), e.g., a
bank, insurance company or registered investment adviser with total client
assets under management in excess of $50 million;
(2) An "in-house asset manager" or "INHAM" (as defined under Part
IV(a) of ▇▇▇▇ ▇▇-▇▇, ▇▇ ▇▇ ▇▇▇▇▇, 15982 (April 10, 1996)), i.e., an entity
which is generally a subsidiary of an employer sponsoring the Plan and
which is a registered investment adviser with management and control of
total assets attributable to Plans maintained by the employer and its
affiliates in excess of $50 million; or
Exhibit J-1
(3) A Plan fiduciary with total assets under management of at least
$100 million at the time it acquires any Class I [ ]Certificates.
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 in both (a) and (b) above.
Very truly yours,
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
Exhibit J-2
EXHIBIT K
TERMINATION AUCTION PROCEDURES
The following sets forth the auction procedures to be followed in
connection with a sale effected pursuant to Section 10.01(b) of the Pooling and
Servicing Agreement (the "Agreement"), dated as of March 1, 2001, among
GreenPoint Credit, LLC, in its capacity as Contract Seller (the "Contract
Seller") and in its capacity as Servicer (the "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.
I. 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 sale 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 March 26,
2001 relating to the public offering of certain of the Certificates.
None of the Trustee, the Contract Seller or the Servicer 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.
(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
Exhibit K-1
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.
II. 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 Accounts, 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.
(h) The Termination Auction will stipulate the Servicer be retained to
service the Contracts sold pursuant to the terms of the sale and
servicing 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
Exhibit K-2
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 K-3