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 2001-2)
Dated as of September 1, 2001
GreenPoint Manufactured Housing Contract Trust
Pass-Through Certificates, Series 2001-2
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.......................................................1
Section 1.01 Terms.....................................................1
Section 1.02 Construction.............................................28
ARTICLE II CONVEYANCE OF CONTRACTS, REPRESENTATIONS AND WARRANTIES..........28
Section 2.01 Conveyance of Contracts..................................28
Section 2.02 Filing and Assignment....................................29
Section 2.03 Acceptance by Trustee and Co-Trustee.....................30
Section 2.04 Trustee Receipt of Documents.............................30
Section 2.05 Representations and Warranties Regarding the Servicer....31
Section 2.06 Covenants of the Contract Seller, Trustee and Servicer...32
Section 2.07 Authentication and Delivery of Certificates..............32
Section 2.08 Covenants of the Servicer................................32
Section 2.09 Covenants of the Contract Seller.........................32
ARTICLE III REPRESENTATIONS AND WARRANTIES BY THE CONTRACT
SELLER...........................................................33
Section 3.01 Representations and Warranties of the Contract Seller....33
Section 3.02 Representations and Warranties Regarding Each Contract...34
Section 3.03 Representations and Warranties Regarding the Contracts
in the Aggregate.........................................37
Section 3.04 Representations and Warranties Regarding the Contracts...38
Section 3.05 Repurchases of Contracts or Substitution of Contracts
for Breach of Representations and Warranties.............38
Section 3.06 General..................................................41
ARTICLE IV ADMINISTRATION AND SERVICING OF CONTRACTS........................41
Section 4.01 Responsibility for Contract Administration and
Servicing................................................41
Section 4.02 Standard of Care.........................................42
Section 4.03 Records..................................................42
Section 4.04 Inspection...............................................42
Section 4.05 Establishment of and Deposits in Certificate Account.....42
Section 4.06 Payment of Taxes.........................................44
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 4.07 Enforcement..............................................44
Section 4.08 Transfer of Certificate Accounts.........................45
Section 4.09 Maintenance of Hazard Insurance Policies.................45
Section 4.10 Fidelity Bond and Errors and Omissions Insurance.........46
Section 4.11 Collections under Hazard Insurance Policies, Consent
to Transfers of Manufactured Homes, Assumption
Agreements...............................................47
Section 4.12 Realization upon Defaulted Contracts.....................48
Section 4.13 Costs and Expenses.......................................48
Section 4.14 Trustee to Cooperate.....................................48
Section 4.15 Servicing and Other Compensation.........................49
Section 4.16 Custody of Contracts.....................................49
Section 4.17 REMIC Compliance.........................................51
Section 4.18 Management of REO Property...............................55
Section 4.19 Reports to the Securities and Exchange Commission........57
Section 4.20 Annual Statement as to Compliance........................57
Section 4.21 Annual Independent Public Accountants' Servicing Report..57
Section 4.22 Retitling of Land Home Contracts.........................58
Section 4.23 Notice of Rating Change..................................58
ARTICLE V PAYMENTS, MONTHLY ADVANCES AND MONTHLY REPORTS...................58
Section 5.01 Monthly Advances by the Servicer.........................58
Section 5.02 Payments.................................................59
Section 5.03 Permitted Withdrawals from the Certificate Accounts......63
Section 5.04 Monthly Reports..........................................64
Section 5.05 Certificate of Servicing Officer.........................68
Section 5.06 Other Data...............................................68
Section 5.07 Statements to Certificateholders.........................68
Section 5.08 Certificate Insurance Policies; Enhancement Payments.....69
ARTICLE VI THE CERTIFICATES.................................................70
Section 6.01 The Certificates........................................70
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 6.02 Certificate Register; Registration of Transfer
and Exchange of Certificates............................71
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.......74
Section 6.04 Persons Deemed Owners...................................74
Section 6.05 Access to List of Certificateholders' Names and
Addresses...............................................75
Section 6.06 Global Certificates.....................................75
Section 6.07 Notices to Depository...................................76
Section 6.08 Definitive Certificates.................................76
ARTICLE VII THE CONTRACT SELLER AND THE SERVICER.............................76
Section 7.01 Liabilities to Obligors..................................76
Section 7.02 Servicer's Indemnities...................................77
Section 7.03 Operation of Indemnities.................................77
Section 7.04 Merger or Consolidation of the Contract Seller or
the Servicer.............................................77
Section 7.05 Limitation on Liability of the Contract Seller,
the Servicer and Others..................................78
Section 7.06 Assignment by Servicer...................................78
Section 7.07 Successor to the Servicer................................78
ARTICLE VIII EVENTS OF DEFAULT................................................80
Section 8.01 Events of Default........................................80
Section 8.02 Waiver of Defaults.......................................81
Section 8.03 Trustee to Act, Appointment of Successor.................81
Section 8.04 Notification to Certificateholders.......................81
Section 8.05 Effect of Transfer.......................................81
Section 8.06 Transfer of the Account..................................82
Section 8.07 Servicer Termination Events..............................82
ARTICLE IX CONCERNING THE TRUSTEE...........................................83
Section 9.01 Duties of Trustee........................................83
Section 9.02 Certain Matters Affecting the Trustee....................84
Section 9.03 Trustee not Liable for Certificates or Contracts.........85
Section 9.04 Trustee May Own Certificates.............................85
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 9.05 Servicer to Pay Fees and Expenses of Trustee,
Co-Trustee, Paying Agent and Certificate Administrator...85
Section 9.06 Eligibility Requirements for Trustee.....................86
Section 9.07 Resignation and Removal of the Trustee...................86
Section 9.08 Successor Trustee........................................87
Section 9.09 Merger or Consolidation of Trustee.......................87
Section 9.10 Appointment of Co-Trustee or Separate Trustee............87
Section 9.11 Appointment of Office or Agency..........................88
Section 9.12 Certificate Administrator................................89
Section 9.13 Appointment of Paying Agent..............................89
Section 9.14 Determination of LIBOR, Auction Procedures...............89
Section 9.15 The Co-Trustee for the Radian Insurance Policy...........89
ARTICLE X TERMINATION......................................................91
Section 10.01 Termination..............................................91
ARTICLE XI MISCELLANEOUS PROVISIONS.........................................93
Section 11.01 Amendment................................................93
Section 11.02 Recordation of Agreement; Counterparts...................95
Section 11.03 Governing Law............................................95
Section 11.04 Calculations.............................................95
Section 11.05 Notices..................................................95
Section 11.06 Severability of Provisions...............................96
Section 11.07 Assignment...............................................97
Section 11.08 Limitations on Rights of Certificateholders..............97
Section 11.09 Inspection and Audit Rights..............................97
Section 11.10 Certificates Nonassessable and Fully Paid................98
Section 11.11 Third Party Beneficiary; Extinguishment of Rights........98
Section 11.12 Purchases Upon Conversion................................98
EXHIBIT INDEX
-------------
Schedule I .........Auction Procedures
Exhibit A-1 ........Group I Contract Schedule
Exhibit A-2.........Group II Contract Schedule
Exhibit B ..........Form of Class A Certificates
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-1 ........Form of Ambac Policy
Exhibit H-2 ........Form of Radian Policy
Exhibit I ..........Form of Depository Agreement
Exhibit J...........Form of ERISA Representation Letter
Exhibit K...........Form of Notice of Ratings
This POOLING AND SERVICING AGREEMENT (Series 2001-2), dated as of
September 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 2001-2
(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.
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.
Ambac: Ambac Assurance Corporation, a Wisconsin-domiciled stock insurance
corporation or its successors in interest.
Ambac Class I A Monthly Premium: With respect to any Distribution Date, the
monthly premium amount specified in the Ambac Insurance Agreement for such
Distribution Date. Such amount may be obtained by any Certificateholder upon
written request to the Trustee.
Ambac Class II A Monthly Premium: With respect to any Distribution Date,
the monthly premium amount specified in the Ambac Insurance Agreement for such
Distribution Date. Such amount may be obtained by any Certificateholder upon
written request to the Trustee.
Ambac Default: (i) The existence and continuance of a failure by Ambac to
make a payment required under the Ambac Policy in accordance with its terms or
(ii) (1) Ambac shall have (A) filed any petition or commences any case or
proceeding under any provision or chapter of any federal or state law relating
to insolvency, bankruptcy, rehabilitation, liquidation or reorganization, (B)
made a general assignment for the benefit of its creditors, or (C) had an order
for relief entered against it under any federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or reorganization which is
final and nonappealable; or (2) a court of competent jurisdiction, the Insurance
Department of the State of Wisconsin or other competent regulatory authority
shall have entered a final and nonappealable order, judgment or decree (A)
appointing a custodian, trustee, agent or receiver for Ambac or for all or any
material portion of its property or (B) authorizing the taking of possession by
a custodian, trustee, agent or receiver of Ambac (or the taking of possession of
all or any material portion of the property of Ambac).
Ambac Enhancement Payment: With respect to the Class I A Certificates and
any Distribution Date after giving effect to any Radian Enhancement Payment with
respect to such Distribution Date, the sum of (a) the amount by which the
aggregate amount distributable to the Class I A Certificateholders pursuant to
Section 5.02(a)(A)(ii) 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) and (2) the
portion of amounts available from the Group II Certificate Account, if any,
pursuant to Section 5.02(a)(B)(xi) after giving effect to the distributions
pursuant to Section 5.02(a)(A)(i) and (b) (1) for any Distribution Date other
than the Distribution Date occurring in October 2032, the amount of any Class I
A Liquidation Loss Amount for such Distribution Date and (2) for the
Distribution Date occurring in October 2032, after giving effect to all
distributions of principal to the Class I A Certificates on such Distribution
Date, an amount equal to the remaining Class I A Certificate Balance. With
respect to the Class II A Certificates and any Distribution Date after giving
effect to any Radian Enhancement Payment with respect to such Distribution Date,
the sum of (a) the amount by which the aggregate amount distributable to the
Class II A Certificateholders pursuant to Sections 5.02(a)(B)(ii) 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) 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 Section 5.02(a)(B)(i) and (b) (1)
for any Distribution Date other than the Distribution Date occurring in October
2032, the amount of any Class II A Liquidation Loss Amount for such Distribution
Date and (2) for the Distribution Date occurring in October 2032, after giving
effect to all distributions of principal to the Class II A Certificates on such
Distribution Date, an amount equal to the remaining Class II A Certificate
Balance.
Ambac Insurance Agreement: The Insurance and Reimbursement Agreement, dated
as of the Closing Date, among GreenPoint, GreenPoint Bank, the Trustee and
Ambac, as amended, modified and supplemented from time to time in accordance
with its terms.
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Ambac Policy: An unconditional and irrevocable certificate insurance policy
of Ambac, in the form attached hereto as EXHIBIT H-1, issued to the
Trustee for the benefit of the Certificateholders.
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 Agent: The meaning assigned in the Auction Procedures.
Auction Agent Agreement: The meaning assigned in the Auction Procedures.
Auction Agent Fee: The meaning assigned in the Auction Agent Agreement.
Auction Certificates: The Class I A-2 Certificates and the Class II A-2
Certificates.
Auction Procedures: The procedures set forth in Schedule I hereof by which
the Auction Rate is determined.
Auction Rate: With respect to a Class of Auction Certificates, the rate of
interest per annum that results from implementation of the Auction Procedures
and which is determined as described in Section 2.1.1(c)(ii) of the Auction
Procedures.
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 related
Collection Period 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, (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 and the amount constituting the Class I A-2
Holdover Amount as of the immediately preceding Distribution Date and (d) with
respect to the Group II Contracts, the amount constituting the Class II A-2
Holdover Amount as of the immediately preceding 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 five 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 five preceding Distribution Dates.
Bank Agent: The meaning, if any, assigned in the applicable Insurance
Agreement.
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Broker Dealer: As defined in the Broker Dealer Agreement.
Broker Dealer Agreement: The meaning assigned in the Auction Procedures.
Broker Dealer Fee: As defined in the Broker Dealer 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 2001-2.
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-1 Certificate Balance, Class I A-2 Certificate Balance, Class II A-1
Certificate Balance or Class II A-2 Certificate Balance, as applicable; and when
used with respect to more than one Class of Certificates, the sum of the Class I
A-1 Certificate Balance, Class I A-2 Certificate Balance, Class II A-1
Certificate Balance and/or Class II A-2 Certificate Balance, as applicable.
Certificate Insurance Policies: Each of the Radian Policy and the Ambac
Policy.
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.
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Class : Any of the Class I A-1, Class I A-2, Class II A-1, Class II A-2, or
Class R Certificates, as the case may be.
Class I A Certificate Balance: With respect to any Distribution Date, the
sum of the Class I A-1 Certificate Balance for such Distribution Date and the
Class I A-2 Certificate Balance for such Distribution Date.
Class I A Certificates: The Class I A-1 and the Class I A-2 Certificates.
Class I A Formula Principal Distribution Amount: With respect to any
Distribution Date, the Formula Principal Distribution Amount for the Group I
Certificates.
Class I A Liquidation Loss Amount: With respect to any Distribution Date,
the amount, if any, by which (i) the Class I A Certificate Balance exceeds (ii)
the Group I Pool Scheduled Principal Balance after giving effect to all
distributions of principal made on such Distribution Date plus the Class I A-2
Holdover Amount for such Distribution Date.
Class I A-1 Certificate: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in EXHIBIT
B and EXHIBIT C hereto and denoted as a "Class I A-1 Certificate."
Class I A-1 Certificate Balance: At any time, the Initial Class I A-1
Certificate Balance minus the sum of all principal distributions previously made
to the Class I A-1 Certificateholders.
Class I A-1 Distribution Amount: As to any Distribution Date, the total
amount distributed to the Class I A-1 Certificateholders pursuant to Section
5.02.
Class I A-1 Interest Distribution Amount: As to any Distribution Date, an
amount equal to the sum of (a) interest accrued during the related Interest
Accrual Period at the Class I A-1 Pass-Through Rate on the Class I A-1
Certificate Balance as of such Distribution Date (before giving effect to the
principal distributions on such Distribution Date) and (b) any Class I A-1
Unpaid Interest Shortfall.
Class I A-1 Interest Shortfall: As to any Distribution Date, any amount by
which the amount distributed to Holders of Class I A-1 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class I A-1 Interest Distribution Amount."
Class I A-1 Pass-Through Rate: With respect to the First Distribution Date,
2.93% per annum. With respect to all subsequent Distribution Dates, a per annum
rate equal to the sum of (a) LIBOR and (b) 0.300%; provided, however, that with
respect to any Distribution Date on which the Hedge Counterparty fails to make
its required payment under the Hedge Agreement and an Insurer Default has
occurred and is continuing, the Class I A-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 A-1 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class I A-1 Interest Shortfalls
for prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class I A-1 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at the
Class I A-1 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
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Class I A-2 Certificate: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in EXHIBIT
B and EXHIBIT C hereto and denoted as a "Class I A-2 Certificate."
Class I A-2 Certificate Balance: At any time, the Initial Class I A-2
Certificate Balance minus the sum of all principal distributions previously made
to the Class I A-2 Certificateholders.
Class I A-2 Distribution Amount: As to any Distribution Date, the total
amount distributed to the Class I A-2 Certificateholders pursuant to Section
5.02.
Class I A-2 Holdover Amount: On (i) the first Distribution Date on which
the Class I A-2 Certificateholders receive distributions of principal pursuant
to Section 5.02(a)(A)(iii) hereof, zero, (ii) on each subsequent Distribution
Date on which the Class I A-2 Certificateholders receive distributions of
principal pursuant to Section 5.02(a)(A)(iii) hereof but prior to the Class I
A-2 Pro Rata Date, an amount equal to the lesser of (i) $24,999.99 and (ii) the
portion of the Class I A Formula Principal Distribution Amount required to be
applied as a principal payment on the Class I A-2 Certificates that exceeds
$25,000 or an integral multiple of $25,000 and (iii) on each Distribution Date
on and after the Class I A-2 Pro Rata Date, zero.
Class I A-2 Interest Distribution Amount: As to any Distribution Date, an
amount equal to the sum of (a) interest accrued during the related Interest
Accrual Period at the Class I A-2 Pass-Through Rate on the Class I A-2
Certificate Balance as of such Distribution Date (before giving effect to the
principal distributions on such Distribution Date) and (b) any Class I A-2
Unpaid Interest Shortfall.
Class I A-2 Interest Shortfall: As to any Distribution Date, any amount by
which the amount distributed to Holders of Class I A-2 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class I A-2 Interest Distribution Amount."
Class I A-2 Pass-Through Rate: With respect to the First Distribution Date,
2.90% per annum. With respect to all subsequent Distribution Dates, the Auction
Rate established for the Class I A-2 Certificates for such Distribution Date as
determined pursuant to the Auction Procedures;, provided, however, that with
respect to any Distribution Date on which the Hedge Counterparty fails to make
its required payment under the Hedge Agreement and an Insurer Default has
occurred and is continuing, the Class I A-2 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-2 Pro Rata Date: The date, if any, upon which the Class I A-2
Certificates are no longer held as a Book-Entry Certificate or the Certificate
Balance of each outstanding Class I A-2 Certificate is less than $25,000.
Class I A-2 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class I A-2 Interest Shortfalls
for prior Distribution Dates exceed all prior distributions made pursuant to
Section 5.02 in respect of prior Class I A-2 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at the
Class I A-2 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
Class II A Certificate Balance: With respect to any Distribution Date, the
sum of the Class II A-1 Certificate Balance for such Distribution Date and the
Class II A-2 Certificate Balance for such Distribution Date.
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Class II A Certificates: The Class II A-1 and the Class II A-2
Certificates.
Class II A Formula Principal Distribution Amount: With respect to any
Distribution Date, the Formula Principal Distribution Amount for the Group II
Certificates.
Class II A Liquidation Loss Amount: With respect to any Distribution Date,
the amount, if any, by which (i) the Class II A Certificate Balance exceeds (ii)
the Group II Pool Scheduled Principal Balance after giving effect to all
distributions of principal made on such Distribution Date plus the Class II A-2
Holdover Amount for such Distribution Date.
Class II A-1 Certificate: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in EXHIBIT
B and EXHIBIT C hereto and denoted as a "Class II A-2 Certificate."
Class II A-1 Certificate Balance: At any time, the Initial Class II A-1
Certificate Balance minus the sum of all principal distributions previously made
to the Class II A-1 Certificateholders.
Class II A-1 Distribution Amount: As to any Distribution Date, the total
amount distributed to the Class II A-1 Certificateholders pursuant to Section
5.02.
Class II A-1 Formula Rate: With respect to the First Distribution Date,
3.005% per annum. With respect to all subsequent Distribution Dates, a per annum
rate equal to the sum of (a) LIBOR and (b) 0.375%.
Class II A-1 Interest Distribution Amount: As to any Distribution Date, an
amount equal to the sum of (a) interest accrued during the related Interest
Accrual Period at the Class II A-1 Pass-Through Rate on the Class II A-1
Certificate Balance as of such Distribution Date (before after giving effect to
the principal distributions on such Distribution Date) and (b) any Class II A-1
Unpaid Interest Shortfall.
Class II A-1 Interest Shortfall: As to any Distribution Date, any amount by
which the amount distributed to Holders of Class II A-1 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class II A-1 Interest Distribution Amount."
Class II A-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 A-1 Pass-Through Rate is based upon the Net
Weighted Average Contract Rate on the Group II Contracts, the excess of (1) the
lesser of (a) the product of (x) the Weighted Average Maximum Cap on the Group
II Contracts and (y) the Class II A-1 Certificate Balance and (b) the amount of
interest the Class II A-1 Certificates would otherwise be entitled to receive on
such Distribution Date had such rate been calculated at the Class II A-1 Formula
Rate for such Distribution Date over (2) the amount of interest payable on the
Class II A -1 Certificates at the Net Weighted Average Contract Rate on the
Group II Contracts for such Distribution Date and (B) the Class II A-1 Net Funds
Cap Carryover Amount, together with accrued interest thereon at the Class II A-1
Pass-Through Rate in effect on such Distribution Date, for all previous
Distribution Dates not previously distributed pursuant to Section
5.02(a)(B)(xi).
Class II A-1 Pass-Through Rate: The lesser of (a) the Class II A-1 Formula
Rate and (b) the Net Weighted Average Contract Rate on the Group II Contracts.
Class II A-1 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class II A-1 Interest Shortfalls
for prior
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Distribution Dates exceeds all prior distributions made pursuant to Section 5.02
in respect of prior Class II A-1 Interest Shortfalls, plus accrued interest
thereon (to the extent payment thereof is legally permissible) at the Class II
A-1 Pass-Through Rate on such amount with respect to such prior Distribution
Dates.
Class II A-2 Certificate: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in EXHIBIT
B and EXHIBIT C hereto and denoted as a "Class II A-2 Certificate."
Class II A-2 Certificate Balance: At any time, the Initial Class II A-2
Certificate Balance minus the sum of all principal distributions previously made
to the Class II A-2 Certificateholders.
Class II A-2 Distribution Amount: As to any Distribution Date, the total
amount distributed to the Class II A-2 Certificateholders pursuant to Section
5.02.
Class II A-2 Formula Rate: With respect to the First Distribution Date,
2.90% per annum. With respect to all subsequent Distribution Dates, the Auction
Rate established for the Class II A-2 Certificates for such Distribution Date as
determined pursuant to the Auction Procedures.
Class II A-2 Holdover Amount: On (i) the first Distribution Date on which
the Class II A-2 Certificateholders receive distributions of principal pursuant
to Section 5.02(a)(B)(iii) hereof, zero, (ii) on each subsequent Distribution
Date on which the Class II A-2 Certificateholders receive distributions of
principal pursuant to Section 5.02(a)(B)(iii) hereof but prior to the Class II
A-2 Pro Rata Date, an amount equal to the lesser of (i) $24,999.99 and (ii) the
portion of the Class II A Formula Principal Distribution Amount required to be
applied as a principal payment on the Class II A-2 Certificates that exceeds
$25,000 or an integral multiple of $25,000 and (iii) on each Distribution Date
on and after the Class II A-2 Pro Rata Date, zero.
Class II A-2 Interest Distribution Amount: As to any Distribution Date, an
amount equal to the sum of (a) interest accrued during the related Interest
Accrual Period at the Class II A-2 Pass-Through Rate on the Class II A-2
Certificate Balance as of such Distribution Date (before giving effect to the
principal distributions on such Distribution Date) and (b) any Class II A-2
Unpaid Interest Shortfall.
Class II A-2 Interest Shortfall: As to any Distribution Date, any amount by
which the amount distributed to Holders of Class II A-2 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class II A-2 Interest Distribution Amount."
Class II A-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 A-2 Pass-Through Rate is based upon the Net
Weighted Average Contract Rate on the Group II Contracts, the excess of (1) the
lesser of (a) the product of (i) the Weighted Average Maximum Cap on the Group
II Contracts and (ii) the Class II A-2 Certificate Balance and (b) the amount of
interest the Class II A-2 Certificates would otherwise be entitled to receive on
such Distribution Date had such rate been calculated at the Class II A-2 Formula
Rate for such Distribution Date over (2) the amount of interest payable on the
Class II A-2 Certificates at the Net Weighted Average Contract Rate on the Group
II Contracts for such Distribution Date and (B) the Class II A-2 Net Funds Cap
Carryover Amount, together with accrued interest thereon at Class II A-2
Pass-Through Rate in effect on such Distribution Date, for all previous
Distribution Dates not previously distributed pursuant to Section
5.02(a)(B)(viii).
Class II A-2 Pass-Through Rate: The lesser of (a) the Class II A-2 Formula
Rate and (b) the Net Weighted Average Contract Rate on the Group II Contracts.
-8-
Class II A-2 Pro Rata Date: The date, if any, upon which the Class II A-2
Certificates are no longer held as a Book-Entry Certificate or the Certificate
Balance of each outstanding Class II A-2 Certificate is less than $25,000.
Class II A-2 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class II A-2 Interest Shortfalls
for prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class II A-2 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at the
Class II A-2 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
Class R Certificate: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in Exhibit
D hereto.
Closing Date: October 2, 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, and the Class I
A-1 Certificates and the Class II A-1 Certificates, the calendar month preceding
the month of such Distribution Date. With respect to the Auction Certificates,
the second calendar moth preceding the month of such 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 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.
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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.
Control Agreement: The Insurer Control Agreement, dated as of the Closing
Date, among GreenPoint, GreenPoint Bank, the Trustee, the Co-Trustee, Radian and
Ambac, as amended, modified and supplemented from time to time in accordance
with its terms.
Controlling Insurer: As defined in the Control Agreement.
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 0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx 00000-0000, 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
00 Xxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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 to occur of (1) the
Distribution Date occurring in September 2005 or (2) the first Distribution Date
on which (A) the quotient obtained by dividing the Radian Enhancement Amount for
that Group and Distribution Date by the aggregate Scheduled Principal Balance of
the Contracts in such Group on that Distribution Date, equals or exceeds (B) 1.5
multiplied by the quotient obtained by dividing the Radian Enhancement Amount
for that Group and Distribution Date by the aggregate Scheduled Principal
Balance of the Contracts in that Group on the Cut-off Date.
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 Period preceding the month of such
Distribution Date. As to any Distribution Date and the Contract Pool,
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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 October 1, 2001 and August
31, 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 9.0% 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 September 1, 2006 and
August 31, 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 10.0% 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 September 1, 2007 and
August 31, 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;
(iv) if such Distribution Date occurs on or after September 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
12.0% of the Group I Cut-Off Date Pool Principal Balance or Group II Cut-Off
Date Pool Principal Balance, as applicable.
Cut-Off Date: The close of business on August 31, 2001.
Cut-Off Date Pool Principal Balance: $425,893,905.96
Cut-Off Date Group I Pool Balance: $222,939,500.00.
Cut-Off Date Group II Pool Balance: $202,954,405.96.
Deficiency: With respect to any Contract that is a Liquidated Contract, the
amount by which (i) the outstanding principal balance of such Contract, plus
accrued and unpaid interest thereon at the related Contract Rate to the Due Date
for such Contract in the Collection Period in which such Contract became a
Liquidated Contract exceeds (ii) the Net Liquidation Proceeds for such Contract.
Deficiency Amount: With respect to any Contract, the amount, if any, that
the Servicer collects directly from the Obligor with respect to any Deficiency.
Deficiency Event: On any Distribution Date as to which, after the
application of funds pursuant to Section 5.02(a), the sum of the Pool Scheduled
Principal Balance and the amount of the Class I A-1 Holdover Amount and the
Class II A-2 Holdover Amount on deposit in the Certificate Account is less than
the aggregate of the Certificate Balances.
Deficiency Percentage: 35%.
Definitive Certificates: As defined in Section 6.08.
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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: (A) With respect to (i) distributions to be made to
the Holders of the Class I A-1 Certificates and the Class II A-1
Certificateholders pursuant to Section 5.02(a) hereof, the deposit into the
Group II Certificate Account pursuant to Section 5.02(a)(A)(x), the deposit into
the Group I Certificate Account pursuant to Section 5.02(a)(B)(x), the statement
to be delivered to the Holders of the Group I A-1 Certificates and the Class II
A-1 Certificateholders pursuant to Section 5.07 hereof and the determination of
the Interest Accrual Period for the Class I A-1 Certificates and the Class II
A-1 Certificates, the 20th day of each calendar month after the initial issuance
of the Group I A-1 Certificates and Class II A-1 Certificates, or if such 20th
day is not a Business Day, the next succeeding Business Day, commencing in
October 2001, (ii) distributions to be made to the Class I A-2 Certificates and,
if the Certificate Balance of the Class I A-1 has been reduced to zero, the
Class R Certificateholders pursuant to Section 5.02(a) hereof, if the
Certificate Balance of the Class II A-2 Certificates has been reduced to zero,
payments to be made to the Auction Agent pursuant to Section 5.02(a)(B)(xi)
hereof, the statement to be delivered to the Class I X-0
-00-
Xxxxxxxxxxxxxxxxxx pursuant to Section 5.07 hereof and the determination of the
Interest Accrual Period for the Class I A-2 Certificates, the 9th day of each
calendar month after the initial issuance of the Class I A-2 Certificates or if
such 9th day is not a Business Day, the next succeeding Business Day, commencing
in November 2001 and (iii) distributions to be made to the Class II A-2 or, if
the Certificate Balance of the Class II A-2 Certificates has not been reduced to
zero and, if the Certificate Balance of the Class II A-2 Certificates has not
been reduced to zero, Class R Certificateholders pursuant to Section 5.02(a)
hereof, payments to be made to the Auction Agent pursuant to Section
5.02(a)(A)(ix) hereof, the statement to be delivered to the Class II A-2
Certificateholders pursuant to Section 5.07 hereof and the determination of the
Interest Accrual Period for the Class II A-2 Certificates, the 13th day of each
calendar month after the initial issuance of the Class II A-2 Certificates or if
such 13th day is not a Business Day, the next succeeding Business Day,
commencing in November 2001 (iii) and (B) for all other purposes hereunder, the
20th day of each calendar month commencing in October 2001, or if such day is
not a Business Day, the next succeeding Business Day, and ending on the last day
of the month in which the Class I A-1 Certificate Balance and Class II A-1
Certificate Balance have been reduced to zero, the 13th day of each calendar
month thereafter, or if such 13th day is not a Business Day, the next succeeding
Business Day and ending on the last day of the month in which the Class II A-2
Certificate Balance has been reduced to zero, and the 9th day of each calendar
month thereafter, or if such 9th 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 Xxxxx'x (if rated by Xxxxx'x) 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 Xxxxx'x and S&P, or maintained
with a depository institution that is otherwise acceptable to each Rating Agency
(as evidenced by a letter from each Rating Agency to such effect), (ii) a trust
account maintained with the Trustee or, if the Certificate Administrator is not
the Trustee, with the Certificate Administrator, in which the funds are either
held uninvested or invested solely in Eligible Investments, or (iii) an account
that is otherwise acceptable to the Rating Agencies and the Insurers, as
evidenced by letters from each Rating Agency and the Insurers, 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 Fitch so long as the Class I A-1 Certificates and the Class II
A-2 Certificates are outstanding, Aaa by Xxxxx'x 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 Insurers as evidenced by a letter from each Insurer;
provided, however, that no investments in "interest only" stripped obligations
shall qualify as an Eligible Investment pursuant to this definition.
-13-
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: On any Distribution Date, any Radian Enhancement
Payment and/or the Ambac Enhancement Payment, as applicable.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA Restricted Certificate: Any Class I A-1, Class I A-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: With respect to the Class I A-1 Certificates and
the Class II A-1 Certificates, October 22, 2001, with respect to the Class I A-2
Certificates, November 9, 2001 and with respect to the Class II A-2
Certificates, November 13, 2001.
Fitch: Fitch, Inc. and its successor in interest.
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.
-14-
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 related Collection Period, (b) all Partial Prepayments on the
Contracts in such Group received during the related Collection Period, (c) the
Scheduled Principal Balance of each Contract in such Group for which a Principal
Prepayment in Full was received during the related Collection Period, (d) the
Scheduled Principal Balance of each Contract in such Group that became a
Liquidated Contract during the related Collection Period, (e) the Scheduled
Principal Balance of each Contract in such Group that was repurchased during the
related Collection Period pursuant to Section 3.05 or pursuant to Section 11.12
by the Class R Certificateholders, (f) all non-cash reductions to the Scheduled
Principal Balance of each Contract in such Group during the related 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, (g)
with respect to the Class I A-2 Certificates, the Class I A-2 Holdover Amount,
(h) with respect to the Class II A-2 Certificates, the Class II A-2 Holdover
Amount and (i) any previously undistributed shortfalls in the amounts in clauses
(a) through (f) above in respect of prior Distribution Dates, other than any
such shortfall with respect to which an Enhancement Amount has been made.
Formula Rate: The Class II A-1 Formula Rate or Class II A-2 Formula Rate,
as applicable.
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
Insurers. Funds in the Group I Certificate Account shall be held in trust for
the aforementioned Certificateholders and the Insurers for the uses and purposes
set forth in this Agreement.
Group I Certificates: The Class I A-1 and Class I A-2 Certificates.
-15-
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).
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
Insurers. Funds in the Group II Certificate Account shall be held in trust for
the aforementioned Certificateholders and the Insurers for the uses and purposes
set forth in this Agreement.
Group II Certificates: The Class II A-1 and Class II A-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: With respect to any Distribution Date and
the Group II 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 II
Pool Scheduled Principal Balance for such Distribution Date.
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.
-16-
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).
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-1 Certificate Balance: As set forth in Section 6.01.
Initial Class I A-2 Certificate Balance: As set forth in Section 6.01.
Initial Class II A-1 Certificate Balance: As set forth in Section 6.01.
Initial Class II A-2 Certificate Balance: As set forth in Section 6.01.
Insurance Agreements: Each of the Ambac Insurance Agreement and the Radian
Insurance Agreement.
Insurers: Each of Radian and Ambac.
Insurer Default: The occurrence of an Ambac Default and a Radian Default.
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).
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Land Home Contract File: As to each Land Home Contract, (a) the original
copy of the Land Home Contract, (b) the original related Mortgage with evidence
of recording thereon (or, if the original Mortgage has not yet been returned by
the applicable recording office, a copy thereof, certified by such recording
office, which will be replaced by the original Mortgage when it is so returned)
and any title document for the related Manufactured Home, (c) the assignment of
the Land Home Contract from the originator (if other than the Contract Seller)
to the Contract Seller, (d) if such Land Home Contract was originated by the
Contract Seller, an endorsement of such Land Home Contract by the Contract
Seller, and (e) any extension, modification or waiver agreement(s).
Late Payment Fees: Any late payment fees (including any not sufficient
funds fees) paid by Obligors on Contracts after all sums received have been
allocated first to regular installments due or overdue and all such installments
are then paid in full.
Latest Due Date: The latest date on which any Contract matures.
LIBOR: As of any LIBOR Determination Date, the rate for deposits in United
States dollars for a period equal to the relevant Interest Accrual Period
(commencing on the first day of such Interest Accrual Period) which appears in
the Telerate Screen Page 3750 as of 11:00 a.m. London time, on such date. If
such rate does not appear on Telerate Screen Page 3750, or such other service
for displaying LIBOR or comparable rates as may be selected by the Trustee (or,
with respect to the Auction Certificates, if so specified in the Auction
Procedures, the Auction Agent) 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 (or, if applicable, the Auction Agent) 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
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Servicer pursuant to Sections 4.06, 4.07, 4.09, 4.13 or 4.18 (to the extent such
amount is reimbursable under the terms of Sections 4.06, 4.07, 4.09, 4.13 or
4.18, as the case may be) with respect to such Contract, and any unreimbursed
expenditures for property taxes or other taxes or charges or for property
restoration or preservation that are related to such liquidation.
Liquidation Proceeds: Cash (including insurance proceeds other than those
applied to the restoration of the related Manufactured Home or Mortgaged
Property or released to the related Obligor in accordance with the normal
servicing procedures of the Servicer, but excluding Deficiency Amounts) received
in connection with the liquidation of defaulted Contracts, whether through
repossession or otherwise.
Loan-To-Value Ratio: The fraction, expressed as a percentage, the numerator
of which is the original principal balance of the related Contract and the
denominator of which is the Original Value of the related Manufactured Home.
Majority In Interest: As to any Class of Regular Certificates, the Holders
of Certificates of such Class evidencing, in the aggregate, at least 51% of the
Percentage Interests evidenced by all Certificates of such Class.
Manufactured Home: A unit of manufactured housing which meets the
requirements of Section 25(e)(10) of the Code, securing the indebtedness of the
Obligor under the related Contract.
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,
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-1 Interest Distribution Amount and Class I A-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-1 Interest Distribution Amount
and Class II A-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.
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Monthly Servicing Fee: The sum of the Group I Monthly Servicing Fee and the
Group II Monthly Servicing Fee.
Moody's: Xxxxx'x 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 1.47% 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 1.69%.
Net Funds Cap Carryover Amount: The Class II A-1 Net Funds Cap Carryover
Amount and/or the Class II A-2 Net Funds Cap Carryover Amount, as applicable.
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.
Notice for Payment: As defined in the related Insurance Agreement.
Notice of Rating: A notice by the Servicer substantially in the form of
EXHIBIT K hereto.
Obligor: Each Person who is indebted under a Contract or who has acquired a
Manufactured Home subject to a Contract.
Officer's Certificate: A certificate (i) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Vice President (however
denominated), an Assistant Vice President, the Treasurer,
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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 Insurers 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.
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-1 Pass-Through Rate, the Class I A-2
Pass-Through Rate, the Class II A-1 Pass-Through Rate or the Class II A-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.
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Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government, or any agency or political subdivision thereof.
Plan Investor: An employee benefit plan, as defined in Section 3(3) of
ERISA, that is subject to Title I of ERISA, a plan, as defined in Section
4975(e)(1) of the Code, that is subject to Section 4975 of the Code, and any
person investing on behalf of or with plan assets of any such plans.
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 Group I, a test that will be
satisfied with respect to any Distribution Date, if the Average Sixty-Day
Delinquency Ratio of the Group I Contracts is less than or equal to 6.00%, the
Twelve-Month Realized Loss Ratio of the Group I Contracts is less than or equal
to 3.50%, and the related Cumulative Realized Loss Test for Group I is satisfied
and with respect to for Group II, a test that will be satisfied with respect to
any Distribution Date if the Average Sixty-Day Delinquency Ratio of the Group II
Contracts is less than or equal to 6.00%, the Twelve-Month Realized Loss Ratio
of the Group II Contracts is less than or equal to 3.50%, and the related
Cumulative Realized Loss Test for Group II 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.
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.
Radian: Radian Insurance Inc., a Pennsylvania domiciled insurer, and its
successors and assigns
Radian Class I A Monthly Premium: With respect to any Distribution Date,
the monthly premium amount calculated as specified in the Radian Insurance
Agreement for such Distribution Date. Such amount may be obtained by any
Certificateholder upon written request to the Trustee.
Radian Class II A Monthly Premium: With respect to any Distribution Date,
the monthly premium amount calculated as specified in the Radian Insurance
Agreement for such Distribution Date. Such amount may be obtained by any
Certificateholder upon written request to the Trustee.
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Radian Default: (i) The existence and continuance of a failure by Radian to
make a payment required under the Radian Policy in accordance with its terms or
(ii) (1) Radian shall have (A) filed any petition or commences any case or
proceeding under any provision or chapter of any federal or state law relating
to insolvency, bankruptcy, rehabilitation, liquidation or reorganization, (B)
made a general assignment for the benefit of its creditors, or (C) had an order
for relief entered against it under any federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or reorganization which is
final and nonappealable; or (2) a court of competent jurisdiction, the Insurance
Department of the Commonwealth of Pennsylvania or other competent regulatory
authority shall have entered a final and nonappealable order, judgment or decree
(A) appointing a custodian, trustee, agent or receiver for Radian or for all or
any material portion of its property or (B) authorizing the taking of possession
by a custodian, trustee, agent or receiver of Radian (or the taking of
possession of all or any material portion of the property of Radian).
Radian Enhancement Amount: With respect to the Class I A Certificates,
initially $37,899,715, which amount shall be reduced (1) on each Distribution
Date by the applicable Radian Enhancement Reduction Amount, if any, (2) by the
amount of all Radian Enhancement Payments paid by Radian with respect to
principal of the Class I A Certificates, and (3) by the amount, if any, by which
the aggregate amount that has been paid by Radian in respect of the Class II A
Certificates exceeds the Radian Enhancement Amount for the Class II A
Certificates. With respect to the Class II A Certificates, initially
$48,709,057, which amount shall be reduced (1) on each Distribution Date by the
applicable Radian Enhancement Reduction Amount, if any, (2) by the amount of all
Radian Enhancement Payments paid by Radian with respect to principal of the
Class II A Certificates, and (3) by the amount, if any, by which the aggregate
amount that has been paid by Radian in respect of the Class I A Certificates
exceeds the Radian Enhancement Amount for the Class I A Certificates.
Radian Enhancement Amount Percentage: With respect to any Distribution Date
and the related Group, the percentage equivalent of a fraction, the numerator of
which is the related Radian Enhancement Amount as of the close of business on
the immediately preceding Distribution Date, and the denominator of which is the
aggregate outstanding principal balance of the related Certificates as of the
close of business on the immediately preceding Distribution Date.
Radian Enhancement Payment: With respect to the Class I A Certificates and
any Distribution Date, (a) with respect to interest on the Class I A
Certificates, the lesser of (1) one month's interest on the Radian Enhancement
Amount for the Class I A Certificates and such Distribution Date, at the
weighted average of the applicable Pass-Though Rates of the Class I A
Certificates and (2) the amount by which (I) the aggregate amount distributable
to the Class I A Certificateholders pursuant to Section 5.02(a)(A)(ii) exceeds
(II) the sum of (x) the portion of the Available Distribution Amount allocable
to the Class I A Certificates remaining after giving effect to the distributions
pursuant to Section 5.02(a)(A)(i) and (y) the portion of amounts available from
Group II Certificate Account, if any, pursuant to Section 5.02(a)(B)(xi) after
giving effect to the distributions pursuant to Section 5.02(a)(A)(i), and (b)
with respect to principal of the Class I A Certificates, the lesser of (1) the
Radian Enhancement Amount for the Class I A Certificates and such Distribution
Date and (2) (A) for any Distribution Date other than the Distribution Date
occurring in October 2032, the amount of any Class I A Liquidation Loss Amount
for such Distribution Date and (B) for the Distribution Date occurring in
October 2032, after giving effect to all distributions of principal on the Class
I A Certificates on such Distribution Date, an amount equal to the remaining
Class I A Certificate Balance.
With respect to the Class II A Certificates and any Distribution Date, (a)
with respect to interest on the Class II A Certificates, the lesser of (1) one
month's interest on the Radian Enhancement Amount for the Class II A
Certificates and such Distribution Date, at the weighted average of the
applicable
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Pass-Though Rates of the Class II A Certificates and (2) the amount by which (I)
the aggregate amount distributable to the Class II A Certificateholders pursuant
to Section 5.02(a)(B)(ii) exceeds (II) the sum of (x) the portion of the
Available Distribution Amount allocable to the Class II A Certificates remaining
after giving effect to the distributions pursuant to Section 5.02(a)(B)(i) and
(y) the portion of amounts available from the Group II Certificate Account, if
any, pursuant to Section 5.02(a)(A)(x) after giving effect to the distributions
pursuant to Section 5.02(a)(B)(i), and (b) with respect to principal of the
Class II A Certificates, the lesser of (1) the Radian Enhancement Amount for the
Class II A Certificates and such Distribution Date and (2) (A) for any
Distribution Date other than the Distribution Date occurring in October 2032,
the amount of any Class II A Liquidation Loss Amount for such Distribution Date
and (B) for the Distribution Date occurring in October 2032, after giving effect
to all distributions of principal on the Class II A Certificates on such
Distribution Date, an amount equal to the remaining Class II A Certificate
Balance.
Radian Enhancement Reduction Amount: With respect to each Distribution Date
and the related Group, (1) prior to the Cross-Over Date, zero, (2) on any
Distribution Date on which the Principal Distribution Tests for such Group are
not satisfied, zero, and (3) on any other Distribution Date, the Radian
Enhancement Amount Percentage for such Group multiplied by the Formula Principal
Distribution Amount for such Distribution Date and Group.
Radian Insurance Agreement: The Insurance and Reimbursement Agreement,
dated as of the Closing Date, among GreenPoint, GreenPoint Bank, the Trustee,
the Co-Trustee and Radian, as amended, modified and supplemented from time to
time in accordance with its terms.
Radian Policy: An unconditional and irrevocable certificate insurance
policy of Radian, in the form attached hereto as EXHIBIT H-2, issued to the
Co-Trustee for the benefit of the Certificateholders.
Rating Agency: Any of Xxxxx'x, S&P and, so long as the Class I A-1
Certificates and the Class II A-1 Certificates are outstanding, Fitch.
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.
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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.
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
XxXxxx-Xxxx 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)
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and to all non-cash reductions to the related Contract during such Collection
Period whether by bankruptcy or other similar proceeding or other adjustment by
the Servicer in the normal course of business of its servicing activities.
Securities Act: The Securities Act of 1933, as amended.
Servicer: GreenPoint, or its successors in interest or any successor
Servicer under this Agreement as provided by Section 7.06 or 7.07.
Servicer Deficiency Amount: With respect to any Distribution Date, the
product of the Deficiency Percentage and the aggregate of the Deficiency Amounts
received during the immediately preceding Collection Period.
Servicer Termination Events: As defined in Section 8.07.
Servicing File: All documents, records, and other items maintained by the
Servicer with respect to a Contract and not included in the corresponding
Contract File or the Land Home Contract File, as applicable, including the
credit application, credit reports and verifications, appraisals, tax and
insurance records, payment records, insurance claim records, correspondence, and
all historical computerized data files.
Servicing Officer: Any officer of the Servicer involved in, or responsible
for, the administration and servicing of the Contracts whose name appears on a
list of servicing officers furnished to the Trustee by the Servicer, as such
list may from time to time be amended.
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
six Collection Periods) 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 and Group II Pool
Scheduled Principal Balance for such Distribution Dates, the result of which is
multiplied by twelve.
Startup Day: As defined in Section 4.17(b) hereof.
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.
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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 six Collection
Periods) 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 Dates, the result of which is multiplied by twelve.
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 Policies, 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, the result of which is multiplied by
twelve.
UCC: The Uniform Commercial Code, as in effect in the relevant
jurisdiction.
United States Person: A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States, any state thereof or the District of Columbia (other
than a partnership not treated as a United States person under any applicable
Treasury Regulations), or an estate or trust whose income is subject to United
States federal income tax regardless of the source of income.
Voting Rights: The portion of the voting rights of all of the Certificates
that is allocated to any Certificate. As of any date of determination, 99% of
the Voting Rights shall be allocated among Holders of the Regular Certificates
in proportion to the Certificate Balances of their respective Certificates on
such date and 1% of the Voting Rights shall be allocated among Holders of the
Class R Certificates, in each case allocated among the Certificates of each such
Class in accordance with their respective Percentage Interests.
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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.
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
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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
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 Delaware 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
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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.
(b) The Trustee hereby acknowledges delivery of the Ambac Policy and
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 Insurers.
(c) The Co-Trustee hereby acknowledges delivery of the Radian Policy to
the Co-Trustee and declares that the Co-Trustee holds and will hold the Radian
Policy in trust for the use and benefit of all present and future Holders of the
Class I A and Class II A 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-1
Certificates and the Class II A-1 Certificates each have been assigned the
rating of "AAA" by Fitch, "AAA" by S&P and "Aaa" by Xxxxx'x and that Class I A-2
Certificates and Class II A-2 Certificates each have been assigned the rating of
"AAA" by S&P and "Aaa" by Xxxxx'x.
(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 Policies; and
(d) the Hedge Agreement.
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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 September 1, 2001 (other
than amounts due on a Due Date occurring prior to September 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.
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 or either Insurer 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
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materially and adversely affects the interests of the Certificateholders in any
Contract, the Servicer shall cure such breach in all material respects.
Section 2.06 Covenants of the Contract Seller, Trustee and Servicer.
------------------------------------------------------
Upon discovery by any of the Contract Seller, the Servicer or the Trustee
of a breach of any of the representations, warranties and covenants set forth in
Article III hereof which materially and adversely affects the value of the
Contracts or the interests of the Certificateholders in the Contracts (or which
materially and adversely affects the value of or the interest of the
Certificateholders in the related Contract in the case of a representation,
warranty or covenant set forth in Article III hereof and relating to a
particular Contract), the party discovering such breach shall give prompt
written notice to the other parties. The cure of such breach or the repurchase
or substitution for any affected Contract shall be done in accordance with
Section 3.05.
Section 2.07 Authentication and Delivery of Certificates.
-------------------------------------------
The Trustee acknowledges the transfer and assignment to it of the Trust
Fund and, concurrently with such transfer and assignment, has executed,
authenticated and delivered to or upon the order of the Contract Seller, the
Certificates in authorized denominations evidencing the entire ownership of the
Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the rights
referred to above for the benefit of all present and future Holders of the
Certificates.
Section 2.08 Covenants of the Servicer.
-------------------------
The Servicer hereby covenants to the Contract Seller and the Trustee that:
(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, type or jurisdiction of organization without first (i) obtaining the
consent of the Trustee and the Insurers, provided, however, that if an Insurer
Default has occurred and is continuing, no such consent needs to be obtained, or
(ii) filing such UCC financing statements or 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.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES BY THE CONTRACT SELLER
Section 3.01 Representations and Warranties of the Contract Seller.
-----------------------------------------------------
The Contract Seller makes the following representations and warranties to
the Trustee as of the Closing Date:
(a) Organization and Good Standing; Licensing. It is a limited liability
company, duly organized, validly existing and in good standing under the laws of
the State of Delaware, and it has the power to own its assets and to transact
the business in which it is currently engaged. It is duly qualified to do
business as a foreign limited liability company and is in good standing in each
jurisdiction in which its type of organization and the character of the business
transacted by it or properties owned or leased by it requires such qualification
and in which the failure so to qualify would have a material adverse effect on
its business, properties, assets, or condition (financial or other). It was
properly licensed in each jurisdiction at the time of purchase or origination of
each Contract originated or purchased on an individual basis by it in such
jurisdiction to the extent required by the laws of such jurisdiction as applied
to the purchase or origination and servicing of such Contract, except where the
failure to be so licensed does not materially adversely affect the interests of
the Trust Fund or the Certificateholders in and to such Contract.
(b) Authorization; Binding Obligations. It has the power and authority to
make, execute, deliver and perform this Agreement and all of the transactions
contemplated under this Agreement, and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement. When
executed and delivered, this Agreement will constitute the legal, valid and
binding obligation of the Contract Seller enforceable in accordance with its
terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies.
(c) No Consent Required. It is not required to obtain the consent of any
other party or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or agency
in connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except such as have been obtained or where the
failure to obtain any such consent, license, approval or authorization, or to
make any registration or declaration does not materially adversely affect the
Trust Fund or the interests of the Certificateholders therein.
(d) No Violations. The execution, delivery and performance of this
Agreement by the Contract Seller will not violate any provision of any existing
law or regulation or any order or decree of any court applicable to the Contract
Seller or the certificate of formation or limited liability company agreement of
the Contract Seller, or constitute a material breach of any mortgage, indenture,
contract or other agreement to which the Contract Seller is a party or by which
the Contract Seller is bound except where such violation or breach does not
materially adversely affect the Trust Fund or the interests of the
Certificateholders therein.
(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.
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Section 3.02 Representations and Warranties Regarding Each Contract.
------------------------------------------------------
The Contracts listed on the Contract Schedule have been sold by GreenPoint
in its capacity as Contract Seller to the Trustee on the date of execution and
delivery hereof. As a condition of the purchase by the Trustee, the Contract
Seller represents and warrants to the Trustee as of the Closing Date (except as
otherwise expressly stated):
(a) Payments. As of the Cut-Off Date, no Contract was more than 59 days
delinquent.
(b) No Waivers. The terms of the Contract have not been waived, altered or
modified in any respect, except by instruments or documents identified in the
Contract File or the Land Home Contract File, as applicable.
(c) Binding Obligation. The Contract is the legal, valid and binding
obligation of the Obligor thereunder and is enforceable in accordance with its
terms, except as such enforceability may be limited by laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
(d) No Defenses. The Contract is not subject to any right of rescission,
setoff, counterclaim or defense, including the defense of usury, and the
operation of any of the terms of the Contract or the exercise of any right
thereunder will not render the Contract unenforceable in whole or in part or
subject to any right of rescission, setoff, counterclaim or defense, including
the defense of usury, and no such right of rescission, setoff, counterclaim or
defense has been asserted with respect thereto.
(e) Insurance. The Manufactured Home securing the Contract is covered by a
Hazard Insurance Policy in the amount required by Section 4.09. All premiums due
as of the Closing Date on such insurance have been paid in full to the
applicable providers of such insurance.
(f) Origination. To the knowledge of the Contract Seller, the Contract was
either (i) originated by a manufactured housing dealer acting in the regular
course of its business, and purchased on an individual basis by the Contract
Seller in the ordinary course of business, (ii) originated by the Contract
Seller in the ordinary course of business, or (iii) purchased from Bank of
America, FSB, which had originated such Contracts in the ordinary course of its
business.
(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
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as secured lender to the Trustee in accordance with the terms herein and the
Trustee has a valid and perfected first-priority security interest in such
Manufactured Home. Each Mortgage is a valid first lien in favor of GreenPoint on
the real property securing the amount owed by the Obligor under the related Land
Home Contract subject only to (a) the lien of current real property taxes and
assessments, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording of such
Mortgage, such exceptions appearing of record being acceptable to mortgage
lending institutions generally in the area wherein the property subject to the
Mortgage is located or specifically reflected in the appraisal obtained in
connection with the origination of the related Land Home and (c) other matters
to which like properties are commonly subject which do not materially interfere
with the benefits of the security intended to be provided by such Mortgage. The
Contract Seller has assigned all of its right, title and interest in such Land
Home Contract and related Mortgage, including the security interest in the
Manufactured Home covered thereby, to the Trustee. The Trustee has a valid and
perfected and enforceable (except as may be limited by laws affecting creditors'
rights generally and by general principles of equity) first priority security
interest in such Land Home Contract.
(k) Capacity of Parties. All parties to the Contract had capacity to
execute the Contract.
(l) Good Title. With respect to each Contract not originated by it, it
purchased such Contract for value and took possession thereof, without knowledge
that the Contract was subject to any security interest. It has not sold,
assigned or pledged the Contract to any Person other than the Trustee, and prior
to the transfer of the Contract by the Contract Seller to the Trustee, it had
good and marketable title thereto free and clear of any encumbrance, equity,
loan, pledge, charge, claim or security interest and was the sole owner thereof
with full right to transfer the Contract to the Trustee.
(m) No Defaults. As of the Cut-Off Date, there was no default, breach,
violation or event permitting acceleration existing under the Contract and to
its knowledge, no 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.
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(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 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 00 Xxxxxx Xxxxxx 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
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Association, as Trustee under the Pooling and Servicing Agreement dated as of
September 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 $3,255,573.09
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 6.00% and the
Group I Contract with the highest Contract Rate has a Contract Rate of 5.10% and
the Group II Contract with the lowest Contract Rate has a Contract Rate of
21.25% and the Group II Contract with the highest Contract Rate has a Contract
Rate of 18.00%.
Section 3.03 Representations and Warranties Regarding the Contracts in the
Aggregate.
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The Contract Seller represents and warrants that as of the Closing Date:
(a) Amounts. The aggregate principal amounts payable by Obligors under the
Contracts as of the Cut-Off Date (including scheduled principal payments due on
or after the Cut-Off Date but paid prior to the Cut-Off Date) equal or exceed
the Cut-Off Date Pool Principal Balance.
(b) Characteristics. The Group I Contracts have the following
characteristics as of the Cut-Off Date: (i) Group I Contracts representing
approximately 60.9% of the Contracts by remaining principal balance are
attributable to loans for purchases of new Manufactured Homes, and approximately
39.1% by remaining principal balance thereof is attributable to loans for
purchases of used Manufactured Homes; (ii) not more than approximately 10.14% 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 January 1, 1974; (v) the final scheduled payment date on the
Group I Contract with the latest maturity is in August 5, 2031, and (v)
approximately 16.2% 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 88.0% of the Contracts
by remaining principal balance are attributable to loans for purchases of new
Manufactured Homes, and approximately 12.0% by remaining principal balance
thereof is attributable to loans for purchases of used Manufactured Homes; (ii)
not more than approximately 8.84% 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 June 17, 1999; (v) the final scheduled payment date on the
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Group II Contract with the latest maturity is in September 1, 2031, (vi)
approximately 28.2% 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 Insurers or the Hedge Counterparty in
selecting the Contracts.
Section 3.04 Representations and Warranties Regarding the Contracts.
------------------------------------------------------
The Contract Seller represents and warrants that:
(a) Possession. Immediately prior to the Closing Date, the Servicer will
have possession of each Contract and the related Contract File or Land Home
Contract File, as applicable (except for any certificate of title or Mortgage
that has not yet been returned from the appropriate public recording office).
There are and there will be no custodial agreements in effect materially and
adversely affecting the right of the Contract Seller to make, or to cause to be
made, any delivery required hereunder.
(b) Bulk Transfer Laws. The transfer, assignment and conveyance of the
Contracts, the Contract Files and the Land Home Contract Files by the Contract
Seller to the Trust Fund as contemplated by this Agreement are not subject to
the bulk transfer or any similar statutory provisions in effect in any
applicable jurisdiction.
Section 3.05 Repurchases of Contracts or Substitution of Contracts for Breach
of Representations and Warranties.
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(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 Radian, Ambac, 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, or as
required by Section 4.16 hereof, 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
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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 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
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written advice of counsel to the effect that a court of competent jurisdiction
has held that, solely because of a substantially similar failure on the part of
a pledgor or assignor of manufactured housing contracts (who has perfected the
assignment or pledge of such contracts), a perfected first-priority security
interest was not created in favor of the pledgee or assignee (as the case may
be) in a related manufactured home which is located in such jurisdiction and
which is subject to the same laws regarding the perfection of security interests
therein as apply to Manufactured Homes located in such jurisdiction, and (B) the
Contract Seller shall not have completed all appropriate remedial action with
respect to such Manufactured Home within 90 days after receipt of such written
advice. Any such advice shall be from counsel selected by the Contract Seller on
a nondiscriminatory basis from among the counsel used by the Contract Seller in
its general business in the jurisdiction in question. The Contract Seller shall
have no obligation on an ongoing basis to seek any advice with respect to the
matters described in clause (ii) above. However, the Contract Seller shall seek
advice with respect to such matters whenever information comes to the attention
of its general counsel which causes such general counsel to determine that a
holding of the type described in clause (ii)(A) might exist. If any counsel
selected by the Contract Seller informs the Contract Seller that no holding of
the type described in clause (ii)(A) exists, such advice shall be conclusive and
binding on the parties with respect to the applicable date and jurisdiction.
(b) On or prior to the date that is the second anniversary of the Closing
Date, the Contract Seller, at its election, may substitute a Contract for any
Contract that it is otherwise obligated to repurchase pursuant to Section
3.05(a) (such Contract being referred to as the "Replaced Contract") upon
satisfaction of the following conditions:
(i) the Contract to be substituted for the Replaced Contract is an
Eligible Substitute Contract and the Contract Seller delivers an Officer's
Certificate, substantially in the form of EXHIBIT E, to the Trustee
certifying that such Contract is an Eligible Substitute Contract,
describing in reasonable detail how such Contract satisfies the definition
of the term "Eligible Substitute Contract" (as to satisfaction of
representations and warranties, such description shall be that such
Contract satisfies such representations and warranties) and certifying that
the Contract File or the Land Home Contract File, as applicable, for such
Contract is in the possession of the Servicer;
(ii) 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
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Principal Prepayment on such Contract) and shall have included in the
Officer's Certificate required by clause (i) above a certification that
such deposit has been made.
Upon satisfaction of such conditions, the Trustee shall add such
Contract to, and delete such Replaced Contract from, the Contract Schedule (or
cause such addition and deletion to be accomplished). Such substitution shall be
effected prior to the first Determination Date that occurs more than 90 days
after the Contract Seller becomes aware or receives written notice from the
Servicer or the Trustee, of the breach referred to in Section 3.05(a).
(c) Promptly after the repurchase referred to in Section 3.05(a) or the
substitution referred to in Section 3.05(b), the Trustee shall execute such
documents as are presented to it by the Contract Seller and are reasonably
necessary to reconvey the repurchased Contract or Replaced Contract, as the case
may be, to the Contract Seller.
(d) Notwithstanding anything in this Section 3.05 to the contrary, in the
event any Opinion of Counsel referred to in this Section 3.05 indicates that a
repurchase or substitution, as the case may be, of a Contract will result in the
imposition of a tax under the applicable REMIC Provisions with respect to
"prohibited transactions," or deemed a contribution to the REMIC after the
"start-up day," the Contract Seller shall not be required to repurchase or
substitute the Contract to which such Opinion of Counsel relates unless and
until the Servicer has determined there is an actual or imminent default with
respect thereto or that the defect or breach giving rise to the repurchase or
substitution obligation adversely affects the enforceability of such Contract.
Section 3.06 General.
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(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
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Property. The Trustee shall furnish the Servicer with any powers of attorney and
other documents necessary or appropriate to enable the Servicer to service and
administer the Contracts. The relationship of the Servicer (and of any successor
to the Servicer as Servicer under this Agreement) to the Trustee under this
Agreement is intended by the parties to be that of an independent contractor and
not that of a joint venturer, partner or agent of the Trustee.
Section 4.02 Standard of Care.
----------------
In managing, administering, servicing and making collections on the
Contracts pursuant to this Agreement, the Servicer will, consistent with the
terms of this Agreement and applicable law, act with reasonable care, using that
degree of skill and care that it exercises with respect to similar manufactured
housing contracts owned and/or serviced by it, but in no event using a degree of
skill and care that is lower than that used generally in the servicing industry
for such manufactured housing contracts; PROVIDED, HOWEVER, that notwithstanding
the foregoing, the Servicer shall not release or waive the right to collect the
unpaid balance on any Contract except if default or foreclosure on such Contract
has occurred or in the reasonable judgment of the Servicer is imminent and such
waiver or release is in the best interest of the Trust, in the reasonable
judgement of the Servicer. Notwithstanding anything to the contrary contained in
this Agreement, no provision of this Agreement shall be construed so as to
require the Servicer to take any action or fail to take any action in respect of
a Contract which action or failure violates applicable law.
Section 4.03 Records.
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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 2001-2,
Group I Certificate Account in trust for the Trustee as trustee for the benefit
of the Group I
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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 2001-2,
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.
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
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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 Radian
Enhancement Payments made pursuant to Section 5.08 and received by the
Co-Trustee from Radian. The Trustee shall deposit in the Group I Certificate
Account or Group II Certificate Account, as applicable, all Radian Enhancement
Payments received from the Co-Trustee and all Ambac Enhancement Payments made by
Ambac pursuant to Section 5.08.
Section 4.06 Payment of Taxes.
----------------
If the Servicer becomes aware of the nonpayment by an Obligor of a real or
personal property tax or other tax or charge which may result in a lien upon a
Manufactured Home or Mortgaged Property prior to, or equal to or coordinate
with, the lien of the related Contract, the Servicer, consistent with Section
4.02, shall take action, including the advancing, but only to the extent that
the Servicer deems, in its sole judgement, such advance recoverable, of such
taxes or charges to avoid the attachment of any such lien. If the Servicer shall
have paid any such real or personal property tax or other tax or charge directly
on behalf of an Obligor, the Servicer may separately add such amount to the
Obligor's obligation as provided by the Contract, but, for the purposes of this
Agreement, may not add such amount to the remaining principal balance of the
Contract. If the Servicer shall have repossessed a Manufactured Home or
Mortgaged Property on behalf of the Certificateholders and the Trustee, the
Servicer shall advance, but only to the extent that the Servicer, in its sole
judgment, deems such advance recoverable, the amount of any such tax or charge
arising during the time such Manufactured Home is in the Servicer's 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 xxx to enforce or collect upon Contracts and, where
permitted by applicable law, may, in its sole judgment, xxx to collect any
Deficiency at its own expense, in its own name,
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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 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
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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 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
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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.
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(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.
(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.
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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
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.
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(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.
(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.
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(c) As custodian, the Servicer shall have and perform the following powers
and duties:
(i) hold the Contract Files (other than the Land Home Contract Files)
on behalf of the Certificateholders and the Trustee, maintain accurate
records pertaining to each Contract to enable it to comply with the terms
and conditions of this Agreement, maintain a current inventory thereof and
conduct annual physical inspections of Contract Files held by it under this
Agreement;
(ii) implement policies and procedures in writing and signed by a
Servicing Officer, with respect to persons authorized to have access to the
Contract Files on the Servicer's premises and the receipting for Contract
Files taken from their storage area by an employee of the Servicer for
purposes of servicing or any other purposes; and
(iii) attend to all details in connection with maintaining custody of
the Contract Files on behalf of the Certificateholders and the Trustee.
(d) In performing its duties under this Section 4.16, the Servicer agrees
to act in accordance with the standard of care set forth in Section 4.02. The
Servicer shall promptly report to the Trustee any failure by it to hold the
Contract Files as herein provided, and shall promptly take appropriate action to
remedy any such failure. In acting as custodian of the Contract Files, the
Servicer further agrees not to assert any ownership interests in the Contracts
or the Contract Files. The Servicer agrees to indemnify the Certificateholders
and the Trustee for any and all liabilities, obligations, losses, damages,
payments, costs or expenses of any kind whatsoever which may be imposed on,
incurred or asserted against the Certificateholders and the Trustee as the
result of any act or omission by the Servicer relating to the maintenance and
custody of the Contract Files that constitutes a breach of the Servicer's
obligations hereunder; provided, however, that the Servicer will not be liable
for any portion of any such amount resulting from the negligence or willful
misconduct of any other Person.
(e) Not later than 60 days from the Closing Date, the Contract Seller
shall deliver, or cause to be delivered, to the Trustee the following:
(i) the Land Home Contract Files;
(ii) the original Land Home Contracts 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
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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 hold the Land Home Contract Files at its Irving,
Texas facility at the Closing Date. The Trustee shall keep the Servicer apprised
at all times after the Closing Date of any change in 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.
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
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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.
(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
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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 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.
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(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 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
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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.
(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
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(iii) all costs and expenses necessary to maintain such REO Property.
To the extent that amounts on deposit in the REO Account in respect of any
REO Property are insufficient for the purposes set forth in (i)-(iii) above with
respect to such REO Property, the Servicer shall advance from its own funds such
amount as is necessary for such purposes if, but only if, the Servicer would
make such advances if the Servicer owned such REO Property and if in the
Servicer's judgment, the payment of such amounts will be recoverable from the
operation or sale of such REO Property.
(b) Notwithstanding the foregoing, the Servicer shall not:
(i) authorize or permit any construction on any REO Property, other
than the completion of a building or other improvement thereon, and then
only if more than ten percent of the construction of such building or other
improvement was completed before default on the related Contract became
imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(ii) directly operate, or allow any other Person to directly operate,
any REO Property on any date more than 90 days after its date of
acquisition;
unless, in any such case, the Servicer has requested and received an Opinion of
Counsel to the effect that such action will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held by the Trust Fund, in which case the
Servicer may take such actions as are specified in such Opinion of Counsel.
(c) The Servicer may contract with any Independent Contractor for the
operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith;
(ii) any such contract shall require, or shall be administered to
require, that (A) the Independent Contractor pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including those listed in subsection (a) hereof, (B) hold all
related revenues in a segregated account, which shall be an Eligible
Account, and (C) remit all related revenues collected (net of such costs
and expenses and any fees retained by such Independent Contractor) to the
Servicer on a monthly or more frequent basis;
(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.
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(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 Insurers
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 Accountants to furnish a statement
to the Contract Seller, the Trustee, the Insurers 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. In addition, such accountants, at the
Servicer's expense, shall specifically examine and audit the Servicer's monthly
calculations of the Radian Enhancement Reduction Amount and the Radian
Enhancement Amounts as reported in the Monthly Report pursuant to clause (jj) of
Section 5.04 hereof, and shall confirm in writing to Insurers that the
Servicer's calculations or reports were and are correct, or, if the Servicer's
calculations or reports were not correct in any respect, specifying the manner
in which they were incorrect. 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
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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 Xxxxx'x 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 Xxxxx'x 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.
Section 4.23 Notice of Rating Change.
-----------------------
In the event that any of the (i) Group I Certificates are not rated "AAA"
by Fitch, "AAA" by S&P and "Aaa" by Xxxxx'x, respectively, on the Closing Date
or (ii) Group II Certificates are not rated "AAA" by Fitch and S&P and "Aaa" by
Xxxxx'x, respectively, on the Closing Date, the Servicer shall give written
notice to the Auction Agent of the initial ratings on the Group I Certificates
and the Group II Certificates by S&P and Xxxxx'x substantially in the form of
the Notice of Ratings. If there is a change in any of the ratings of the
Certificates at any time, the Servicer shall give written notice to the Auction
Agent or if the Group I Certificates and/or the Group II Certificates are no
longer maintained as Book-Entry Certificates by the Depository, to the Trustee,
substantially in the form of the Notice of Ratings within three (3) Business
Days of its receipt of notice of such change, but not later than the close of
business on the Business Day immediately preceding an Auction Date (as defined
in Schedule I) if the Servicer has received written notice of such change in a
rating or ratings prior to 12:00 noon on such Business Day, and the Auction
Agent or the Trustee, as applicable, shall take into account such change in
rating or ratings for purposes hereof and any Auction, so long as such Notice of
Ratings is received by the Auction Agent or Trustee no later than the close of
business on such Business Day.
ARTICLE V
PAYMENTS, MONTHLY ADVANCES AND MONTHLY REPORTS
Section 5.01 Monthly Advances by the Servicer.
--------------------------------
(a) By the close of business on the day prior to each Distribution Date,
the Servicer shall (i) cause to be deposited, out of its own funds, (a) in the
Group I Certificate Account the Monthly Advance
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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 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(s)
relating to the Class I A Certificates, if any, and amounts received pursuant to
clause 5.02 (a)(B)(xi) for such Distribution Date and apply such amount
(provided that any amount representing an Enhancement Payment(s) shall only be
used with respect to items (ii) and (iii) below), in the following order of
priority, to the distribution of:
(i) (1) to the Co-Trustee for distribution to Radian, the Radian
Class I A Monthly Premium for such Distribution Date and any Radian Class I
A Monthly Premium remaining unpaid from prior Distribution Dates; and (2)
to Ambac, the Ambac Class I A Monthly Premium for such Distribution Date
and any Ambac Class I A Monthly Premium remaining unpaid from prior
Distribution Dates; PROVIDED, that if the Available Distribution Amount is
insufficient to make the full distributions of premiums referred to in this
clause (i), the Available Distribution Amount shall be distributed to the
Insurers pro rata based on such full amounts allocable to such Insurers;
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(ii) to the Class I A-1 Certificateholders and the Class I A-2
Certificateholders, the Class I A-1 Interest Distribution Amount and the
Class I A-2 Interest Distribution Amount, respectively; provided that if
the Available Distribution Amount, together with any Enhancement Payment
and any amounts available pursuant to Section 5.02(a)(B)(xi), is
insufficient to make the full distributions of interest referred to in this
clause (ii), the Available Distribution Amount, together with any
Enhancement Payment and any amounts available pursuant to Section
5.02(a)(B)(xi), shall be distributed on such Classes of Certificates pro
rata based on such full amounts allocable to such Classes;
(iii) to the Class I A-1 Certificateholders, the Class I A Formula
Principal Distribution Amount (less, with respect to the Class I A-2
Certificateholders, the Class I A-2 Holdover Amount for such Distribution
Date) in the following order of priority:
(A) to the Class I A-1 Certificateholders until the Class I A-1
Certificate Balance is reduced to zero; and
(B) to the Class I A-2 Certificateholders until the Class I A-2
Certificate Balance is reduced to zero;
(iv) to Ambac, amounts in respect of any unreimbursed Ambac
Enhancement Payment made with respect to the Class I A Certificates;
(v) to the Co-Trustee for distribution to the Radian, amounts in
respect of any unreimbursed Radian Enhancement Payment made with respect to
the Class I A Certificates;
(vi) to Ambac, any amounts owing to Ambac pursuant to the Ambac
Insurance Agreement other than as set forth in clause (iv) above;
(vii) to the Co-Trustee for distribution to the Radian, any amounts
owing to the Radian pursuant to the Radian Insurance Agreement other than
as set forth in clause (v) above;
(viii) to the Broker Dealer, the Broker Dealer Fee related to the
Class I A-2 Certificates and certain other amounts that may be required to
be paid pursuant to the Broker Dealer Agreement;
(ix) to the Auction Agent, certain amounts that may be required to be
paid pursuant to the Auction Agent 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(s)
relating to the Class II A 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(s) shall
only be used with respect to items (ii) and (iii) below), in the following order
of priority, to the distribution of:
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(i) to the Co-Trustee for distribution to Radian, the Radian Class II
A Monthly Premium for such Distribution Date and any Radian Class II A
Monthly Premium remaining unpaid from prior Distribution Dates and to
Ambac, the Ambac Class II A Monthly Premium for such Distribution Date and
any Ambac Class II A Monthly Premium remaining unpaid from prior
Distribution Dates, PROVIDED that if the Available Distribution Amount is
insufficient to make the full distributions of premiums referred to in this
clause (i), the Available Distribution Amount shall be distributed to the
Insurers pro rata based on such full amounts allocable to such Insurers;
(ii) to the Class II A-1 Certificateholders and the Class II A-2
Certificateholders, the Class II A-1 Interest Distribution Amount and the
Class II A-2 Interest Distribution Amount, respectively; PROVIDED that if
the Available Distribution Amount, together with any Enhancement Payment
and amounts available pursuant to Section 5.02(a)(A)(x), is insufficient to
make the full distributions of interest referred to in this clause (ii),
the Available Distribution Amount, together with any Enhancement Payment
and amounts available pursuant to Section 5.02(a)(A)(x), shall be
distributed on such Classes of Certificates pro rata based on such full
amounts allocable to such Classes;
(iii) to the Class II A Certificateholders, the Class II A Formula
Principal Distribution Amount (less, with respect to the Class II A-2
Certificateholders, the Class II A-2 Holdover Amount for such Distribution
Date) in the following order of priority:
(A) to the Class II A-1 Certificateholders until the Class II
A-1 Certificate Balance is reduced to zero; and
(B) to the Class II A-2 Certificateholders until the Class II
A-2 Certificate Balance is reduced to zero;
(iv) to Ambac, amounts in respect of any unreimbursed Ambac
Enhancement Payment made with respect to the Class II A Certificates;
(v) to the Co-Trustee for distribution to the Radian, amounts in
respect of any unreimbursed Radian Enhancement Payment made with respect to
the Class II A Certificates;
(vi) to Ambac, any amounts owing to Ambac pursuant to the Ambac
Insurance Agreement other than as set forth in clause (iv) above;
(vii) to the Co-Trustee for distribution to Radian, any amounts owing
to Radian pursuant to the Radian Insurance Agreement other than as set
forth in clause (v) above;
(viii) to the Broker Dealer, the Broker Dealer Fee related to the
Class II A-2 Certificates and certain other amounts that may be required to
be paid pursuant to the Broker Dealer Agreement;
(ix) to the Class II A-1 Certificateholders and Class II A-2
Certificateholders, the Class II A-1 Net Funds Cap Carryover Amount and the
Class II A-2 Net Funds Cap Carryover Amount, respectively, PROVIDED that if
the Available Distribution Amount is insufficient to make the full
distributions of the Net Funds Cap Carryover Amounts referred to in this
clause (ix), the Available Distribution Amount shall be distributed on such
Classes of Certificates pro rata based on such full amounts allocable to
such Classes;
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(x) certain amounts that may be required to be paid pursuant to the
Auction Agent Agreement; and
(xi) to the Group I Certificate Account to fund any Group I Available
Funds Shortfall; and
(xii) to the Class R Certificateholders, any remaining Available
Distribution Amount in respect of the Group II Certificates.
In addition, notwithstanding the prioritization of the distribution of the
Formula Principal Distribution Amount to the Holders of the Certificates
pursuant to clause (A)(iii) and (B)(iii) above, on a Distribution Date, if any,
in respect of which a Deficiency Event is in effect with respect to (Y) Group I
Certificates, the portion of the Class I A Formula Principal Distribution Amount
for such Distribution Date that would otherwise be distributed sequentially to
the Class I A-1 and Class I A-2 Certificateholders pursuant to clause (A)(iii)
above will instead be distributed to the Class I A-1 and Class I A-2
Certificateholders pro rata based upon the Certificate Balance of each such
Class immediately prior to such Distribution Date until the Certificate Balances
of the Class I A-1 and Class I A-2 Certificates have been reduced to zero and
(Z) Group II Certificates, the portion of the Class II A Formula Principal
Distribution Amount for such Distribution Date that would otherwise be
distributed sequentially to the Class II A-1 and Class II A-2 Certificateholders
pursuant to clause (B)(iii) above will instead be distributed to the Class II
A-1 and Class II A-2 Certificateholders pro rata based upon the Certificate
Balance of each such Class immediately prior to such Distribution Date until the
Certificate Balances of the Class II A-1 and Class II A-2 Certificates have been
reduced to zero (but distributions among the Certificateholders shall be made in
accordance with the terms of Section 5.02(d) hereof).
Such distributions to the Class I A-1 Certificateholders, Class I A-2
Certificateholders, Class II A-2 Certificateholders and Class II A-2
Certificateholders shall be made such that the Trustee shall distribute (a) to
each Class I A-1 Certificateholder as of the preceding Record Date an amount
equal to the product of the aggregate Percentage Interest evidenced by such
Certificateholder's Class I A-1 Certificates and the Class I A-1 Distribution
Amount for such Distribution Date, (b) to each Class I A-2 Certificateholder as
of the preceding Record Date an amount equal to the product of the aggregate
Percentage Interest evidenced by such Certificateholder's Class I A-2
Certificates and the Class I A-2 Distribution Amount for such Distribution Date,
(c) to each Class II A-1 Certificateholder as of the preceding Record Date an
amount equal to the product of the aggregate Percentage Interest evidenced by
such Certificateholder's Class I A-1 Certificates and the Class II A-1
Distribution Amount for such Distribution Date, and (d) to each Class II A-2
Certificateholder as of the preceding Record Date an amount equal to the product
of the aggregate Percentage Interest evidenced by such Certificateholder's Class
II A-2 Certificates and the Class II A-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 Insurers,
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.
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(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)(x) and 5.02(a)(B)(xi), as
applicable) and distribute the amount specified in Section 5.02(a)(A)(xi) and
5.02(a)(B)(xii) 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.
(d) On each Distribution Date prior to the Class I A-2 Pro Rata Date, with
respect to the Class I A-2 Certificates, and the Class II A-2 Pro Rata Date,
with respect to the Class II A-2 Certificates, principal payments will be made
to the Class I A-2 Certificates and Class II A-2 Certificates, as applicable,
only in amounts equal to $25,000 and integral multiples in excess thereof. On
each Distribution Date, the Class I A-2 Holdover Amount, if any, and Class II
A-2 Holdover Amount, if any, for such Distribution Date will be retained in the
Certificate Account. The amount being distributed to Holders of the Class I A-2
Certificates and II A-2 Certificates as principal will be allocated to the
specific Certificates of such Class which are selected prior to the related
Distribution Date by lot or such other manner as may be determined by the
Depository, a Depository Participant or the Trustee, which distributions, prior
to the Class I A-2 Pro Rata Date or Class II A-2 Pro rata Date, as applicable,
will be made only in allocations equal to $25,000 and integral multiples of
$25,000 in excess thereof. On each Distribution Date on and after the Class I
A-2 Pro Rata Date or Class II A-2 Pro Rata Date, distributions will be made pro
rata to the Holders of the Class I A-2 Certificates or Class II A-2
Certificates, as applicable, pursuant to Section 5.02(a) based on their
respective Percentage Interests. Any amounts on deposit in the Certificate
Account representing the Class A-2 Holdover Amount shall only be applied to
payments of principal on the Class A-2 Certificates until the Certificate
Balance of the Class A-2 Certificates has been reduced to zero.
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
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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 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-1
Certificate Balance and the Class I A-2 Certificate Balance have been
reduced to zero and all amounts owing to the Insurers pursuant to the
Insurance Agreements, including in respect of amounts paid under the
Certificate Insurance Policies relating to the Class I A 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 Insurers in respect of amounts paid under the
Certificate Insurance Policies relating to the Class II A 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 Insurers, the Rating Agencies, the Contract Seller,
the Hedge Counterparty and the Certificate Administrator
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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-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;
(c) the amount of interest to be distributed to Class I A-1
Certificateholders on such Distribution Date (separately identifying any Class I
A-1 Unpaid Interest Shortfall included in such distribution);
(d) the remaining Class I A-1 Certificate Balance after giving effect to
the payment of principal to be made on such Distribution Date (on which interest
will be calculated on the next succeeding Distribution Date);
(e) the Class I A-2 Distribution Amount for such Distribution Date;
(f) the amount of principal to be distributed to the Class I A-2
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 interest to be distributed to Class I A-2
Certificateholders on such Distribution Date (separately identifying any Class I
A-2 Unpaid Interest Shortfall included in such distribution);
(h) the remaining Class I A-2 Certificate Balance after giving effect to
the payment of principal to be made on such Distribution Date (on which interest
will be calculated on the next succeeding Distribution Date);
(i) the Class II A-1 Distribution Amount for such Distribution Date;
(j) the amount of principal to be distributed to the Class II A-1
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;
(k) the amount of interest to be distributed to Class II A-1
Certificateholders on such Distribution Date (separately identifying any Class
II A-1 Unpaid Interest Shortfall included in such distribution);
(l) the remaining Class II A-1 Certificate Balance after giving effect to
the payment of principal to be made on such Distribution Date (on which interest
will be calculated on the next succeeding Distribution Date);
(m) the Class II A-2 Distribution Amount for such Distribution Date;
(n) the amount of principal to be distributed to the Class II A-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;
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(o) the amount of interest to be distributed to Class II A-2
Certificateholders on such Distribution Date (separately identifying any Class
II A-2 Unpaid Interest Shortfall included in such distribution);
(p) the remaining Class II A-2 Certificate Balance after giving effect to
the payment of principal to be made on such Distribution Date (on which interest
will be calculated on the next succeeding Distribution Date);
(q) LIBOR, the Class I A-1 Pass-Through Rate, the Class I A-2 Pass-Through
Rate, the Class II A-1 Pass-Through Rate, the Class II A-2 Pass-Through Rate,
the Class I A-2 Holdover Amount, the Class II A-2 Holdover Amount, the Class I A
Liquidation Loss Amount and the Class II A Liquidation Loss Amount;
(r) the Group I Monthly Servicing Fee and the Group II Monthly Servicing
Fee payable on 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;
(s) 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 (i) of the definition of Formula Principal Distribution
Amount;
(t) 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)(xi);
(u) 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;
(v) 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;
(w) the amount of the Radian Enhancement Payments and the Ambac
Enhancement Payments , if any, for such Distribution Date, and amounts thereof
received from Radian and Ambac, respectively;
(x) the amount of any Monthly Advance and the Outstanding Amount Advanced
with respect to such Distribution Date;
(y) the Radian Class I A Monthly Premium, the Radian Class II A Monthly
Premium, the Ambac Class I A Monthly Premium, the Ambac Class II A Monthly
Premium, the amount, if any, reimbursed to the Insurers on such Distribution
Date;
(z) the amount, if any, to be distributed to the Class R
Certificateholders;
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(aa) 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;
(bb) the number of Manufactured Homes currently held by the Servicer due to
repossessions in each group and the aggregate principal balance of the related
defaulted Contracts;
(cc) the Pool Scheduled 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;
(dd) the aggregate of the Deficiency Amounts and Servicer Deficiency
Amounts received for the preceding Collection Period;
(ee) amounts paid to the Class II A-1 and Class II A-2 Certificateholders
on such Distribution Date in respect of the Class II A-1 Net Funds Carryover
Amount and Class II A-2 Net Funds Carryover Amount;
(ff) any additional items required to be set forth in the Monthly Report
pursuant to the Insurance Agreement;
(gg) the Cumulative Realized Losses, the Average Sixty-Day Delinquency
Ratio for each Group and the Average Thirty-Day Delinquency Ratio 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;
(hh) whether each of the Cumulative Realized Loss Test and the Principal
Distribution Tests have been satisfied as of such Distribution Date and whether
such Distribution Date constitutes the Cross-Over Date for either Group;
(ii) the existence of any Servicer Termination Event that has occurred and
is continuing;
(jj) the Radian Enhancement Reduction Amount for each Group for such
Distribution Date and the Radian Enhancement Amount for each Group before and
after the Distribution Date, detailing the calculation of each Radian
Enhancement Amount Percentage and each Radian Enhancement Reduction Amount; and
(kk) 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.
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Section 5.05 Certificate of Servicing Officer.
--------------------------------
Each Monthly Report pursuant to Section 5.04 shall be accompanied by a
certificate of a Servicing Officer substantially in the form of EXHIBIT F,
certifying the accuracy of the Monthly Report and that such officer is not aware
of the occurrence of an Event of Default or of an event that, with notice or
lapse of time or both, would become an Event of Default, or if such officer is
aware that such an event has occurred and is continuing, specifying the event
and its status.
Section 5.06 Other Data.
----------
In addition, the Servicer, at the request of the Trustee or the Certificate
Administrator, shall furnish the Trustee or the Certificate Administrator (as
the case may be) such underlying data as may reasonably be requested.
Section 5.07 Statements to Certificateholders.
--------------------------------
Concurrently with each distribution to Certificateholders pursuant to this
Article V, the Trustee shall mail, or cause the Paying Agent to mail, to each
Certificateholder at the address appearing on the Certificate Register the
Monthly Report prepared by the Servicer together with the following information
prepared by the Servicer:
(1) the amount of fees and expenses payable out of the Trust Fund for
such Collection Period;
(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-1 Certificateholders, (f) and (g) of Section 5.04, in the
case of Class I A-2 Certificateholders, (j) and (k) of Section 5.04, in the case
of Class I A -1 Certificateholders, and (n) and (o) of Section 5.04, in the case
of Class II A-2 Certificateholders. 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.
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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
Insurers.
Section 5.08 Certificate Insurance Policies; Enhancement Payments.
----------------------------------------------------
(a) The parties hereto acknowledge that the Insurers have provided the
Certificate Insurance Policies in order to provide the Holders of the
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)(ii) and, pursuant to the terms of
the Insurance Policies, 5.02(a)(A)(iii) and 5.02(a)(B)(ii) and, pursuant to the
terms of the Insurance Policies, 5.02(a)(B)(iii), 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 further acknowledge that an Ambac Enhancement Payment shall
only be made on any Distribution Date with respect to the Class I A Certificates
or the Class II A Certificates if (i) an Enhancement Payment is necessary on
such Distribution Date and (ii) all payments required to be made by Radian under
the Radian Policy with respect to such Certificates have been made or a Radian
Default has occurred and is continuing.
The parties hereto acknowledge (i) that the Co-Trustee has been retained at
a Pennsylvania office solely to (A) hold the Radian Policy on behalf of the
Trust Fund and (B) make and receive payments with respect to the Radian 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 Radian Policy.
(b) On the Closing Date, the Co-Trustee shall establish an account for the
benefit of the 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 a Radian 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 Radian on the Radian Policy
pursuant to such Notice of Payment (and, at the written request of Radian,
deliver a copy of such Notice of Payment to the Bank Agent pursuant to the
Radian Policy) directing Radian to make payment by wire transfer to the
Co-Trustee. With respect to any Distribution Date on which an Ambac Enhancement
Payment is required, the Servicer shall prepare and sign a Notice of Payment and
forward such Notice of Payment to the Trustee at least two Business Days prior
to the related Distribution Date. Promptly upon receipt of a Notice of Payment
from the Servicer, the Trustee shall make a claim to Ambac on the Ambac Policy
pursuant to such Notice of Payment (and, at the written request of Ambac,
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deliver a copy of such Notice of Payment to the Bank Agent pursuant to the Ambac
Policy) directing Ambac to make payment by wire transfer to the 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 A
Certificates pursuant to Sections 5.02(a)(A)(ii) and, with respect to any Class
I A Liquidation Loss Amount, 5.02(A) (iii) and to the Class II A Certificates
pursuant to Sections 5.02(a)(B)(ii) and, with respect to Class II A Liquidation
Loss Amounts, Section 5.02(a)(B)(iii), 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)(xi), respectively.
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates.
----------------
The Certificates shall be substantially in the forms attached hereto as
EXHIBIT X-0, XXXXXXX X-0, XXXXXXX X-0, EXHIBIT X-0, XXXXXXX X-0, XXXXXXX X-0,
EXHIBIT C and EXHIBIT D. The Class I A-1, Class I A-2, Class II A-1, and Class
II A-2 Certificates shall be issuable in registered form, in the minimum dollar
denominations, integral dollar multiples in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must be in
excess of the applicable minimum dollar denomination) and aggregate dollar
denominations per Class as set forth in the following table:
Integral
Multiples in Initial
Minimum Excess of Latest Scheduled Certificate
Class Denomination Minimum Distribution Date Balance
----- ------------ ------------ ----------------- ------------
I A-1 $50,000 $1 April 2016 $137,939,500
I A-2 $25,000 $25,000 February 2032 $85,000,000
II A-1 $50,000 $1 June 2020 $102,954,406
II A-2 $25,000 $25,000 March 2032 $100,000,000
The Class R Certificate shall initially be issued with no principal
balance.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer. Certificates bearing the manual
or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such authentication and delivery. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
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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.
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(a) The Trustee shall maintain, or cause to be maintained, a Certificate
Register for the Trust Fund in which, subject to the provisions of subsections
(b) and (c) below and to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Certificates
of the same Class and of like aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates are
so surrendered for exchange, the Trustee shall execute, authenticate, and
deliver the Certificates that the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for registration
of transfer or 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 to a Plan Investor 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
Insurers or the Servicer, acceptable to and in form and substance satisfactory
to the Trustee, the Contract Seller, the Insurers 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
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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, the underwriters 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 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
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to transfer its Ownership Interest in a Class R Certificate and (y) not to
transfer its Ownership Interest unless it provides a certificate to the
Trustee in the form attached hereto as EXHIBIT G-2.
(E) Each Person holding or acquiring an Ownership Interest in a Class
R Certificate, by purchasing an Ownership Interest in such Certificate,
agrees to give the Trustee written notice that it is a "pass-through
interest holder" within the meaning of Temporary Treasury Regulations
Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership
Interest in a Class R Certificate, if it is, or is holding an Ownership
Interest in a Class R Certificate on behalf of, a "pass-through interest
holder."
(ii) The Trustee will register the Transfer of any Class R Certificate
only if it shall have received the Transfer Affidavit and a certificate of the
Holder requesting such transfer in the form attached hereto as EXHIBIT G-2.
Transfers of the Class R Certificates to Non-United States Persons and
Disqualified Organizations (as defined in Section 860E(e)(5) of the Code) are
prohibited.
(iii)(A) If any Disqualified Organization shall become a holder of a
Class R Certificate, then the last preceding Permitted Transferee shall be
restored, to the extent permitted by law, to all rights and obligations as
Holder thereof retroactive to the date of registration of such Transfer of such
Class R Certificate. If a Non-United States Person shall become a holder of a
Class R Certificate, then the last preceding United States Person shall be
restored, to the extent permitted by law, to all rights and obligations as
Holder thereof retroactive to the date of registration of such transfer of such
Class R Certificate. If a transfer of a Class R Certificate is disregarded
pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section
1.860G-3, then the last preceding Permitted Transferee shall be restored, to the
extent 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
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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.
(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.
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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:
(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.
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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 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
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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.
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 Insurers 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.
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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.
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 Controlling Insurer (provided that if an Insurer Default has
occurred and is continuing, no consent of the Insurers 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 Controlling Insurer (provided that if an Insurer Default
has occurred and is continuing, no consent of the Insurers 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
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liabilities of the Servicer under this Agreement prior to the termination of the
Servicer's responsibilities, duties and liabilities under this Agreement (except
that the duty to pay and indemnify the Trustee pursuant to Section 9.05 hereof
shall be subject to negotiation at the time of such appointment). If the Trustee
has become the successor to the Servicer in accordance with this Section 7.07,
the Trustee may, if it shall be unwilling to continue to so act, or shall, if it
is unable to so act, appoint, or petition a court of competent jurisdiction to
appoint, a successor satisfying the requirements set out in clause (ii) above.
In connection with any appointment of a successor Servicer, the Trustee may make
such arrangements for the compensation of such successor out of payments on
Contracts as it and such successor shall agree or such court shall determine;
provided, however, that the Monthly Servicing Fee shall not be in excess of a
monthly amount equal to 1/12th of the product of 1% and the Pool Principal
Balance for the Distribution Date in respect of which such compensation is being
paid without the consent of all of the Certificateholders and notice to each
Rating Agency. If the Servicer's duties, responsibilities and liabilities under
this Agreement should be terminated pursuant to Section 7.06 or 8.01, the
Servicer shall discharge such duties and responsibilities during the period from
the date it acquires knowledge of such termination until the effective date
thereof with the same degree of diligence and prudence which it is obligated to
exercise under this Agreement, shall cooperate with the Trustee and any
successor Servicer in effecting the termination of the Servicer's
responsibilities and rights hereunder, and shall take no action whatsoever that
might impair or prejudice the rights or financial condition of its successor.
The assignment by a Servicer pursuant to Section 7.06 or removal of Servicer
pursuant to Section 8.01 shall not become effective until a successor shall be
appointed pursuant to this Section 7.07 and shall in no event relieve the
Contract Seller of liability pursuant to Section 3.05 for breach of the
representations and warranties made pursuant to Section 3.02 or 3.03. The
Servicer being terminated pursuant to Section 8.01 or Section 7.06 shall bear
all costs of a transfer of servicing therefrom, including but not limited to
those of the Trustee reasonably allocable to specific employees and overhead,
legal fees and expenses, and costs of amending the Agreement, if necessary.
Any successor appointed as provided herein shall execute, acknowledge and
deliver to the Servicer and to the Trustee an instrument accepting such
appointment, whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and liabilities of the
Servicer, with like effect as if originally named as a party to this Agreement
and the Certificates. Any assignment by or termination of the Servicer pursuant
to 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.
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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 Controlling 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 Controlling 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 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
Controlling Insurer (which consent shall not be unreasonably withheld; provided
that if an Insurer Default has occurred and is continuing, no consent of the
Insurers needs to be obtained) and, the Trustee shall at the written direction
of the Controlling Insurer, or if an Insurer Default has occurred and is
continuing, at the written direction of the Holders of Certificates evidencing
Fractional Interests aggregating not less than 51% by notice in writing to the
Servicer, terminate all the rights and obligations of the Servicer under this
Agreement, including, without limitation, all rights with respect to the
Contracts and the proceeds thereof, except any responsibility for its acts or
omissions during its tenure as Servicer hereunder. The Trustee shall send a copy
of a notice of any Event of Default to each Rating Agency, the Insurers, 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
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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 either Insurer unless such Certificateholders
or such 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 Controlling Insurer, or if an Insurer Default has occurred and is
continuing, the Holders of Certificates evidencing Fractional Interests
aggregating not less than 25% may waive any default by the Servicer in the
performance of its obligations hereunder and its consequences, except that a
default in the making of any required remittance to the Trustee for distribution
on any of the Certificates may be waived only by the affected
Certificateholders. Upon any such waiver of a past default, such default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other default or impair any right consequent thereon
except to the extent expressly so waived.
Section 8.03 Trustee to Act, Appointment of Successor.
----------------------------------------
On and after the time the Servicer receives a notice of termination
pursuant to Section 8.01 or 8.07, the Trustee or its appointed agent shall be
the successor in all respects to the Servicer as provided in Section 7.07
hereof. Notwithstanding the above, or anything in Section 7.07 to the contrary,
the Trustee, if it becomes Servicer pursuant to this Section, shall have no
responsibility or obligation (i) to repurchase or substitute for any Contract,
(ii) for any representation or warranty of the Servicer hereunder, and (iii) for
any act or omission of either a predecessor or successor Servicer other than the
Trustee. The Trustee may conduct any activity required of it as Servicer
hereunder through an Affiliate or through an agent. Neither the Trustee nor any
other successor Servicer shall be deemed to be in default hereunder due to any
act or 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 and the Insurers.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Holders of Certificates and the Insurers
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.
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(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:
(a) the Cumulative Realized Losses as of such Distribution Date exceed (a)
if such Distribution Date is from and including October 2001 and up to
and September 2006, 9.0% of the Cut-Off Date Pool Principal Balance,
(b) if such Distribution Date is from and including October 2006 and
up to and including September 2007, 10.0% of the Cut-Off Date Pool
Principal Balance, (c) if such Distribution Date is from and including
October 2007 and up to and including September 2008, 11.0% of the
Cut-Off Date Pool Principal Balance and (d) if such Distribution Date
is on or after October 2008, 12.0% of the Cut-Off Date Pool Principal
Balance; or
(b) the Twelve-Month Realized Loss Ratio exceeds 3.5% and the Twelve-Month
Realized Loss Ratio continues to exceed 3.5% 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 six
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 six
months or more;
then, in each and every such case, and so long as no Insurer Default has
occurred and is continuing, the Controlling Insurer may send written notice to
the Trustee and the 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. Neither the Trustee nor the Certificateholders shall
have the right to initiate removal of, or remove, the Servicer if a Servicer
Termination Event has occurred.
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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 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 Controlling 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.
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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, Officer's 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 Controlling
Insurer pursuant to the provisions of this Agreement, unless such
Certificateholders or the Controlling 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 Controlling Insurer, or if
an Insurer Default has occurred and is continuing, at the written
direction of Holders of Certificates evidencing Fractional Interests
aggregating not less than 25%; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of
this Agreement, the Trustee may require reasonable indemnity against
such expense or liability as a condition to such proceeding. The
reasonable expense of every such examination shall be paid by the
Servicer, if an Event of Default shall have occurred and is
continuing, and otherwise by the Certificateholders requesting the
investigation;
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents
or attorneys; provided, however, that any Affiliate of the Contract
Seller may only perform ministerial or custodial duties hereunder as
agent for the Trustee; and
(g) The Trustee shall examine any directions, notices or other
communications received from the Servicer, the Contract Seller, the
Insurers 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.
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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, Co-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 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.
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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 Insurers, 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 Insurers; FURTHER PROVIDED that either (i) such entity
has long-term debt rated at least Aa2 by Xxxxx'x, 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 Insurers and each Rating Agency. Upon receiving such notice of resignation,
the Contract Seller and the Controlling Insurer (provided that if an Insurer
Default has occurred and is continuing, no such consent needs to be obtained
from the Insurers) shall promptly appoint a successor trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor trustee
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
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 Controlling Insurer, or if an Insurer Default has occurred and is
continuing, the Holders of Certificates evidencing Fractional Interests
aggregating not less than 50% may remove the Trustee at any time and appoint a
successor trustee reasonably satisfactory to the Controlling Insurer by written
instrument
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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.
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 Insurers 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
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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.
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 its office located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 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.
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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
information received from the Servicer without any duty to independently verify
or recalculate any such information.
The Trustee shall cause the Paying Agent to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee
that such Paying Agent is at all times acting as agent for the Trustee and such
Paying Agent will hold all sums held by it for the payment to Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders.
Section 9.14 Determination of LIBOR, Auction Procedures.
------------------------------------------
On each LIBOR Determination Date (or if such date is not a Business Day, on
the next succeeding Business Day), the Trustee shall determine LIBOR for the
following Interest Accrual Period in effect on such LIBOR Determination Date and
shall inform the Servicer of such rate. The Trustee agrees to comply with the
terms of the Auction Procedures as such terms relate to the Trustee.
Section 9.15 The Co-Trustee for the Radian 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
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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 Insurers, 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 Insurers, 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, Radian, 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 Radian, (ii) take all actions required by
this Agreement by and through a Pennsylvania office and (iii) execute,
acknowledge and deliver to the Trustee, Radian, the Contract Seller, the
Servicer 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 Ambac are:
Ambac Assurance Corporation
Citibank, NA
ABA# 000000000
DDA# 40609486
Re: AB0492BE GreenPoint 2001-2
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(e) The wiring instructions for the initial Co-Trustee are:
First Union National Bank
Charlotte, NC
ABA# 000000000
D/5000000016439
FFC: 1576021860/GreenPoint Credit 2001-2
Attention to: CT1870 Xxxxxx Xxxxxx
(f) It is understood and agreed that the Co-Trustee and the Trustee are
independent contractors and shall have no vicarious responsibility for the acts
or omissions of one another.
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; or (ii) at the option of the Servicer, on any Distribution Date after
the Optional Termination Date 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-1 Unpaid Interest Shortfall, Class I A-2 Unpaid Interest Shortfall,
Class II A-1 Unpaid Interest Shortfall and Class II A-2 Unpaid Interest
Shortfall, and the remittance of all funds due hereunder; PROVIDED, HOWEVER,
that if any Radian Enhancement Payment and/or Ambac Enhancement Payment has been
made and not yet reimbursed, the Servicer may only exercise this option with the
consent of Radian and/or Ambac, as applicable; 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. 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 Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof; and PROVIDED FURTHER that if
the Trust Fund is dissolved prior to the termination of the Radian Policy, the
Co-Trustee shall retain possession of Radian Policy as collateral agent for the
benefit of the Class I A and Class II A Certificateholders, and if any amount
previously distributed in accordance with Section 5.02(a) is thereafter required
to be paid under the Radian Policy, the Co-Trustee as collateral agent shall
make a claim under the Certificate Insurance Policy for such
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amount in accordance with Section 5.08 and distribute such amount as required
under the Radian Policy and if the Trust Fund is dissolved prior to the
termination of the Ambac Policy, the Trustee shall retain possession of Ambac
Policy as collateral agent for the benefit of the Class I A and Class II A
Certificateholders, and if any amount previously distributed in accordance with
Section 5.02(a) is thereafter required to be paid under the Ambac Policy, the
Trustee as collateral agent shall make a claim under the Ambac Policy for such
amount in accordance with Section 5.08 and distribute such amount as required
under the Ambac Policy .
(b) (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 Insurers, 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-1 Certificates, the Class I A-1 Certificate Balance together with the
Class I A-1 Unpaid Interest Shortfall and one month's interest at the Class
I A-1 Pass-Through Rate on the Class I A-1 Certificate Balance, (b) as to
the Class I A-2 Certificates, the Class I A-2 Certificate Balance together
with the Class I A-2 Unpaid Interest Shortfall and one month's interest at
the Class I A-2 Pass-Through Rate on the Class I A-2 Certificate Balance,
(c) as to the Class II A-1 Certificates, the Class II A-1 Certificate
Balance together with the Class II A-1 Unpaid Interest Shortfall and one
month's interest at the Class II A-1 Pass-Through Rate on the Class II A-1
Certificate Balance, (d) as to the Class II A-2 Certificates, the Class II
A-2 Certificate Balance together with the Class II A-2 Unpaid Interest
Shortfall and one month's interest at the Class II A-2 Pass-Through Rate on
the Class II A-2 Certificate Balance, (e) any termination payments to the
Hedge Counterparty, (f) any unreimbursed Radian Enhancement Payments and
other amounts due to Radian pursuant to the Radian Insurance Agreement to
the Co-Trustee for distribution to Radian, and (g) any unreimbursed Ambac
Enhancement Payments and other amounts due to Ambac pursuant to the Ambac
Insurance Agreement to Ambac.
(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.
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(c) 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) or otherwise, the Trust Fund shall be
terminated in accordance with the following additional requirements, unless the
Trustee has received an Opinion of Counsel to the effect that the failure of the
Trust Fund to comply with the requirements of this Section 10.01 will not (i)
result in the imposition of taxes on "prohibited transactions" of the Trust Fund
as described in Section 860F of the Code, (ii) cause the Trust Fund to fail to
qualify as a REMIC at any time that any Certificates are outstanding, or (iii)
result in the imposition of taxes on contributions of additional assets to the
Trust Fund under Section 860G(d) of the Code:
(i) Within 90 days prior to the final Distribution Date set forth in
the notice given by the Servicer or the Trustee under this Section 10.01,
the Holders of the Class R Certificates shall adopt a plan of complete
liquidation of the Trust Fund;
(ii) At or after the time of adoption of such a plan of complete
liquidation and at or prior to the final Distribution Date, the Servicer as
agent of the Trustee shall sell all of the assets of the Trust Fund to the
purchaser thereof (which may be the Servicer) for cash (other than assets
that will be converted to cash prior to the final Distribution Date); and
(iii) At or after the time of adoption of such a plan of complete
liquidation and at or prior to the final Distribution Date, the Trustee
shall credit or distribute all proceeds of the liquidation (plus the cash),
less assets retained to meet claims, to the Certificateholders.
By its acceptance of a Class R Certificate, each Holder thereof hereby agrees to
adopt such a plan of complete liquidation upon the written request of the
Servicer and to take such other action in connection therewith as may be
reasonably requested by the Contract Seller.
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 Insurers, 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 Insurers) 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
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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 Fitch, 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 Insurers, 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 Insurers) 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 Insurers, 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
Insurers) 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
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
Insurers, the Hedge Counterparty and each Rating Agency.
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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 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;
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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, 00000 Xxxxxx Xxxxx
Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention: Manager, Investor Servicing (or
such other address as may be hereafter furnished to the Contract Seller, the
Insurers, the Trustee and the Co-Trustee by the Servicer in writing), with
copies to Xxxxxx Xxxxxx, Esq., GreenPoint Bank, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, (b) in the case of the Trustee, Bank One, National Association, 0
Xxxx Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Xxxxx
Xxxxxxx or such other address as the Trustee may hereafter furnish to the
Contract Seller, the Insurers and the Servicer; (c) in the case of the
Co-Trustee: First Union National Bank, 123 South Broad Street, Mail Code PA
1249, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Corporate Trust
Administration; (d) in the case of Radian, Radian Insurance Inc., 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: X. Xxxxxxxxx More Jr. or
such other address as Radian may hereafter furnish to the Contract Seller, the
Trustee, the Co-Trustee and the Servicer; (e) in the case of Ambac, Ambac
Assurance Corporation., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Consumer Asset-Backed Securities Group or such other address as Ambac
may hereafter furnish to the Contract Seller, the Trustee, the Co-Trustee and
the Servicer; (f) in the case of the Hedge Counterparty, Citibank, N.A., c/o
Capital Markets Legal Group, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Department Head or such other address as the Hedge Counterparty may
hereafter furnish to the Contract Seller, the Trustee, the Co-Trustee, the
Insurers and the Servicer; and (g) in the case of the Rating Agencies, (i)
Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, (ii) Xxxxx'x
Investors Service, Inc., Manufactured Housing Monitoring Department, 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and (iii) Standard & Poor's Credit Market
Services, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. 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
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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.
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
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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 Insurers and the Hedge Counterparty shall be a third party
beneficiary of this Agreement. The Insurers shall be entitled to bring a claim
against the Contract Seller for its failure to perform its obligations under
Section 3.05 or a claim against the Servicer for any failure by the Servicer to
make Monthly Advances as required under Section 5.01 or any deposit or other
payment required under this Agreement.
Section 11.12 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 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.
-98-
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: Xxxxx Xxxxxxx
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: Xxxxxxx X. Xxxx
Title: Senior Vice President
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On October 1, 2001 before me, Trace X. Xxxxxx-Xxxxxxxx, Notary Public, in
and for the state of California, personally appeared Xxxxxxx X. Xxxx, known to
me to be the person whose mane is subscribed to the foregoing instrument and
acknowledged that he executed the same in his authorized capacity as Senior Vice
President of GreenPoint Credit LLC, and that, by his signature on the instrument
the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------------
Notary Public
My Commission expires
---------------------
[Notarial Seal]
STATE OF ARIZONA )
) ss.
COUNTY OF [ ] )
On this th day of September, 2001, before me, ,
---- -------------------------
a notary public in and for said State, appeared Xxxxx Xxxxxxx, 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 September, 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]
SCHEDULE I
AUCTION PROCEDURES
ARTICLE 1
Except as otherwise specified herein, or as the context may require, capitalized
terms used but not otherwise defined herein have the meanings ascribed in the
Pooling and Servicing Agreement, dated as of September 1, 2001, relating to the
GreenPoint Manufactured Housing Contract Trust Pass-Through Certificates Series
2001-2 (the "Pooling and Servicing Agreement"), among Bank One, National
Association, as trustee (the "Trustee"), First Union National Bank, as
co-trustee and GreenPoint Credit, LLC, as contract seller and servicer (in such
capacities, the "Contract Seller" and the "Servicer").
SECTION 1.1 DEFINITIONS.
-----------
"ALL HOLD RATE" means ninety percent (90%) of LIBOR.
"AUCTION" means, with respect to each Class of Auction Rate Certificates, the
implementation of the Auction Procedures on an Auction Date for such Class.
"AUCTION AGENT" means Bankers Trust Company, a New York banking corporation, or
any successor appointed under the Auction Agent Agreement.
"AUCTION AGENT FEE" means the fee paid to the Auction Agent pursuant to the
Auction Agent Agreement.
"AUCTION CERTIFICATES" means the Class I A-2 Certificates and the Class II A-2
Certificates.
"AUCTION DATE" means, with respect to each Class of Auction Rate Certificates,
the Business Day immediately preceding the first day of each Interest Accrual
Period, commencing in November, 2001, other than:
(i) with respect to a Class of Auction Rate Certificates, each
Interest Accrual Period commencing after such Class is no longer maintained
by the Depository in Book-Entry Form;
(ii) each Interest Accrual Period commencing after and during the
continuance of an Ambac Default; or
(iii)each Interest Accrual Period commencing less than two
Business Days after the cure or waiver of an Ambac Default.
Notwithstanding the foregoing, the Auction Date for one or more Interest Accrual
Periods may be changed pursuant to the Auction Agent Agreement, as described
herein.
"AUCTION PROCEDURES" means the procedures set forth in Section 2.1.1 hereof by
which the Auction Rate is determined.
Schedule I-1
"AUCTION RATE" means with respect to a Class the rate of interest per annum that
results from implementation of the Auction Procedures and is determined as
described in Section 2.1.1(c)(ii) hereof.
"AUTHORIZED DENOMINATIONS" means, with respect to each Class of Auction
Certificates, $25,000 and integral multiples of $25,000 in excess thereof.
"AVAILABLE CERTIFICATES" has the meaning set forth in Section 2.1.1(c)(i)(A)
hereof.
"BID" has the meaning set forth in Section 2.1.1(a)(i) hereof.
"BID AUCTION RATE" has the meaning set forth in Section 2.1.1(c)(i) hereof.
"BIDDER" has the meaning set forth in Section 2.1.1(a)(i) hereof.
"BOOK-ENTRY FORM" or "BOOK-ENTRY SYSTEM" means a form or system under which (i)
the beneficial right to principal and interest may be transferred only through a
book entry, (ii) physical securities in registered form are issued only to a
Depository or its nominee as registered owner, with the securities "immobilized"
to the custody of the Depository, and (iii) the book entry is the record that
identifies the owners of beneficial interests in that principal and interest.
"BROKER-DEALER" means Xxxxxxx Xxxxx Barney Inc. or any other broker or dealer
(each as defined in the Securities Exchange Act of 1934, as amended), commercial
bank or other entity permitted by law to perform the functions required of a
Broker-Dealer set forth in the Auction Procedures that (a) is a Participant (or
an Affiliate of a Participant), has been appointed as such by the Servicer, with
the consent of the Market Agent and (c) has entered into a Broker-Dealer
Agreement that is in effect on the date of reference.
"BROKER-DEALER AGREEMENT" means each agreement among the Auction Agent, a
Broker-Dealer and the Holder of the Class R Certificates, pursuant to which the
Broker-Dealer agrees to participate in Auctions as set forth in the Auction
Procedures, as from time to time amended or supplemented. Each Broker-Dealer
Agreement shall be in substantially the form of the Broker-Dealer Agreement to
be entered into as of the Closing Date, among the Auction Agent, Xxxxxxx Xxxxx
Xxxxxx Inc., as Broker-Dealer and GreenPoint Bank, as Holder of the Class R
Certificates.
"BROKER-DEALER FEE" means the fee paid to the Broker-Dealer pursuant to any
Broker-Dealer Agreement.
"CLASS" means the Class I A-2 Certificates or the Class II A-2 Certificates, as
applicable.
"EXISTING CERTIFICATEHOLDER" means with respect to and for the purpose of
dealing with the Auction Agent in connection with an Auction, (i) a Person who
is a Broker-Dealer listed in the Existing Certificateholder Registry at the
close of business on the Business Day immediately preceding such Auction and
(ii) a Person who is a beneficial owner of the Auction Certificates.
"EXISTING CERTIFICATEHOLDER REGISTRY" means the registry of Persons who are
owners of the Auction Certificates, maintained by the Auction Agent as provided
in the Auction Agent Agreement.
Schedule I-2
"HOLDER OF THE CLASS R CERTIFICATES" means the Holders of at least a majority
Percentage Interest in the Class R Certificates.
"HOLD ORDER" has the meaning set forth in Section 2.1.1(a)(i) hereof.
"INITIAL AUCTION AGENT" means Bankers Trust Company, a New York banking
corporation, its successors and assigns.
"INITIAL AUCTION AGENT AGREEMENT" means the Auction Agent Agreement dated as of
the Closing Date, among the Trustee, the Initial Auction Agent and the Holder of
the Class R Certificates, including any amendment thereof or supplement thereto.
"MARKET AGENT" means Xxxxxxx Xxxxx Barney Inc., in such capacity hereunder, or
any successor to it in such capacity - hereunder.
"MAXIMUM AUCTION RATE" means, with respect to each Class of Auction Rate
Certificates, (A) LIBOR plus 1.00% (if the ratings assigned by the Rating
Agencies to such Class are "AAA" and "Aaa"), (B) LIBOR plus 1.25% (if the
ratings assigned by the Rating Agencies to such Class are "AA" and "Aa2" or
better, unless the requirements of (A) above are satisfied), (C) LIBOR plus
2.00% (if the ratings assigned by the Rating Agencies to such Class are "A" and
"A2" or better, unless the requirements of (A) or (B) above are satisfied) or
(D) LIBOR plus 3.50% (if any one of the ratings assigned by the Rating Agencies
to such Class is less than "A" or "A2"). For purposes of the Auction Agent and
the Auction Procedures, the ratings referred to in this definition shall be the
last rating of which the Auction Agent has been given notice pursuant to the
Pooling and Servicing Agreement and the Auction Agent Agreement.
"ORDER" has the meaning set forth in Section 2.1.1(a)(i) hereof.
"OUTSTANDING" means, as of the date of determination, all Certificates of a
Class theretofore authenticated and delivered under the Pooling and Servicing
Agreement except:
(i) Certificates of such Class theretofore cancelled by the
Certificate Registrar or delivered to the Certificate Registrar for
cancellation;
(ii) Certificates of such Class or portions thereof the payment for
which money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent in trust for the Certificateholders thereof;
and
(iii) Certificates of such Class in exchange for or in lieu of other
Certificates of such Class which have been authenticated and delivered
pursuant to the Pooling and Servicing Agreement unless proof satisfactory
to the Trustee is presented that any such Certificates are held by a bona
fide purchaser.
"PARTICIPANT" means a broker, dealer, bank, other financial institution or other
Person for whom from time to time the Depository effects Book-Entry transfers
and pledges of securities deposited with the Depository.
"PASS-THROUGH RATE" means, with respect to the Class I A-2 Certificates, the
Class I A-2 Pass-Through Rate and with respect to the Class II A-2 Certificates,
the Class II A-2 Pass-Through Rate.
Schedule I-3
"POTENTIAL CERTIFICATEHOLDER" means any Person (including an Existing
Certificateholder that is (i) a Broker-Dealer when dealing with the Auction
Agent and (ii) a potential beneficial owner when dealing with a Broker-Dealer)
who may be interested in acquiring Auction Certificates (or, in the case of an
Existing Certificateholder thereof, an additional principal amount of Auction
Certificates).
"RATE ADJUSTMENT DATE" means the date on which the applicable Pass-Through Rate
is effective and means, with respect to each Certificate in each Class, the date
of commencement of each Interest Accrual Period.
"RATE DETERMINATION DATE" means with respect a Class, the related Auction Date,
or if no Auction Date is applicable, the Business Day immediately preceding the
date of commencement of the related Interest Accrual Period.
"SELL ORDER" has the meaning set forth in Section 2.1.1(a)(i) hereof.
"SUBMISSION DEADLINE" means 1:00 p.m., Eastern time, on any Auction Date or such
other time on any Auction Date by which Broker-Dealers are required to submit
Orders to the Auction Agent as specified by the Auction Agent from time to time.
"SUBMITTED BID" has the meaning set forth in Section 2.1.1(c)(i) hereof.
"SUBMITTED HOLD ORDER" has the meaning set forth in Section 2.1.1(c)(i) hereof.
"SUBMITTED ORDER" has the meaning set forth in Section 2.1.1(c)(i) hereof.
"SUBMITTED SELL ORDER" has the meaning set forth in Section 2.1.1(c)(i) hereof.
"SUBSTITUTE AUCTION AGENT" means the Person with whom the Trustee enters into a
Substitute Auction Agent Agreement.
"SUBSTITUTE AUCTION AGENT AGREEMENT" means an auction agent agreement containing
terms substantially similar to the terms of the Initial Auction Agent Agreement,
whereby a Person having the qualifications required by Section 2.1.5 of these
Auction Procedures agrees with the Trustee to perform the duties of the Auction
Agent under this Agreement.
"SUFFICIENT BIDS" has the meaning set forth in Section 2.1.1(c)(i) hereof.
SECTION 1.2 GENERAL PROVISIONS.
------------------
Each Class shall bear interest at the applicable Pass-Through Rate. For each
Interest Accrual Period, interest at the applicable Pass-Through Rate shall
accrue daily and shall be computed for the actual number of days elapsed on the
basis of a year consisting of 360 days.
Notwithstanding the foregoing:
(a) if the ownership of a Class is no longer maintained in Book-Entry
Form, the applicable Pass-Through Rate for such Certificate for any Interest
Accrual Period commencing after the delivery of certificates representing such
Certificates shall equal with respect to the Class II A-2 Certificates, the
lesser of (i) the Maximum Auction Rate for the Class II A-2 Certificates and
(ii) the
Schedule I-4
Net Weighted Average Contract Rate on the Group II Contracts on the Business Day
immediately preceding the first day of such subsequent Interest Accrual Period
and with respect to the Class I A-2 Certificates, the Maximum Auction Rate,
unless an Ambac Default has occurred and is continuing and the Hedge
Counterparty fails to make a required payment under the Hedge Agreement, then
such rate shall equal the lesser of (i) the Maximum Auction Rate for the Class I
A-2 Certificates and (ii) the Net Weighted Average Contract Rate on the Group I
Contracts on the Business Day immediately preceding the first day of such
subsequent Interest Accrual Period; or
(b) for each Interest Accrual Period commencing after the occurrence
and during the continuance of an Ambac Default and for any Interest Accrual
Period less than two Business Days after the cure of any Ambac Default, the
Pass-Through Rate for each Class II A-2 Certificate for any such period shall
equal the lesser of (i) the Maximum Auction Rate for the Class II A-2
Certificates and (ii) the Net Weighted Average Contract Rate on the Group II
Contracts on the Business Day immediately preceding the first day of such
subsequent Interest Accrual Period and the Pass-Through Rate for the Class I A-2
Certificates shall equal the lesser of (i) the Maximum Auction Rate for the
Class I A-1 Certificates and (ii) the Net Weighted Average Contract Rate on the
Group I Contracts on the Business Day immediately preceding the first day of
such subsequent Interest Accrual Period plus the percentage obtained by dividing
amounts received under the Hedge Agreement for the applicable Interest Accrual
Period for the Class I A-2 Certificates over Class I A-2 Certificate Balance on
the first day of such Interest Accrual Period.
The Auction Agent shall promptly give written notice to the Trustee and the
Depository of the applicable Pass-Through Rate and either the applicable Auction
Rate or the Net Weighted Average Contract Rate of the Group I Contracts or the
Net Weighted Average Contract Rate of the Group II Contracts, as the case may
be, when such rate is not the Pass-Through Rate. The Trustee shall notify the
Certificateholders of the applicable Pass-Through Rate for the related Interest
Accrual Period on the second Business Day of such Interest Accrual Period.
Notwithstanding any other provision of the Class II A-2 Certificates or the
Pooling and Servicing Agreement, interest payable on the Class II A-2
Certificates for an related Interest Accrual Period shall never exceed for such
Interest Accrual Period the amount of interest payable at the Net Weighted
Average Contract Rate on the Group II Contracts in effect for such Interest
Accrual Period. Notwithstanding any other provision of the Class I A-2
Certificates or the Pooling and Servicing Agreement, interest payable on the
Class I A-2 Certificates for an related Interest Accrual Period, if the Hedge
Counterparty fails to make a payment under the Hedge Agreement and an Ambac
Default has occurred and is continuing, interest payable on the Class I A-2
Certificates for an related Interest Accrual Period shall never exceed for such
Interest Accrual Period the amount of interest payable at the Net Weighted
Average Contract Rate on the Group I Contracts in effect for such Interest
Accrual Period..
If the Auction Rate for the Class II A-2 Certificates is greater than the Net
Weighted Average Contract Rate on the Group II Contracts, then the Class I A-2
Pass-Through Rate for that Interest Accrual Period will be the Net Weighted
Average Contract Rate on the Group II Contracts. If the Class II A-2
Pass-Through Rate for any Interest Accrual Period is the Net Weighted Average
Contract Rate on the Group II Contracts, the Trustee shall determine the Class
II A-2 Net Funds Cap Carryover Amount, if any. The Class II A-2 Net Funds Cap
Carryover Amount shall bear interest calculated at a rate equal to the then
applicable Class II A-2 Pass-Through Rate, without giving effect to the Net
Weighted Average Contract Rate on the Group II Contracts from the
Schedule I-5
Distribution Date for the related Interest Accrual Period with respect to which
the Net Funds Cap Carryover Amount was calculated, until paid. For purposes of
the Pooling and Servicing Agreement, any reference to "principal" or "interest"
herein shall not include within the meaning of such words Certificateholders'
interest carryover or any interest accrued on any such Class II A-2 Net Funds
Cap Carryover Amount. If the Auction Rate for the Class I A-2 Certificates is
greater than the Net Weighted Average Contract Rate on the Group I Contracts and
the Hedge Counterparty has failed to make a payment under the hedge Agreement
and an Ambac Default has occurred and is continuing, then the Class I A-2
Pass-Through Rate for that Interest Accrual Period will be the Net Weighted
Average Contract Rate on the Group I Contracts. The Class I A-2 Certificates
shall not be entitled to any "net funds cap carryover amount."
ARTICLE 2
AUCTION PROCEDURES
SECTION 2.1 PASS-THROUGH RATE.
-----------------
SECTION 2.1.1 DETERMINING THE PASS-THROUGH RATE FOR THE AUCTION
CERTIFICATES.
By purchasing Auction Certificates, whether in an Auction or otherwise, each
purchaser of the Auction Certificates, or its Broker-Dealer, must agree and
shall be deemed by such purchase to have agreed (i) to participate in Auctions
on the terms described herein, (ii) to have its beneficial ownership of the
Auction Certificates maintained at all times in Book-Entry Form for the account
of its Participant, which in turn will maintain records of such beneficial
ownership and (iii) to authorize such Participant to disclose to the Auction
Agent such information with respect to such beneficial ownership as the Auction
Agent may request.
So long as the ownership of a Class is maintained in Book-Entry Form, an
Existing Certificateholder may sell, transfer or otherwise dispose of such
Certificates only pursuant to a Bid or Sell Order placed in an Auction or
otherwise sell, transfer or dispose of such Certificates through a
Broker-Dealer, provided that, in the case of all transfers other than pursuant
to Auctions, such Existing Certificateholder, its Broker-Dealer or its
Participant advises the Auction Agent of such transfer. Auctions shall be
conducted on each applicable Auction Date, if there is an Auction Agent on such
Auction Date, in the following manner:
(a) (i) Prior to the Submission Deadline on each related Auction
Date:
(A) each Existing Certificateholder may submit to a
Broker-Dealer by telephone or otherwise any information as to:
(1) the principal amount of the Outstanding Class
owned by such Existing Certificateholder which such Existing
Certificateholder desires to continue to own without regard to the
Pass-Through Rate for such Class for the next succeeding Interest
Accrual Period;
(2) the principal amount of the Outstanding Class
owned by such Existing Certificateholder which such Existing
Certificateholder offers to sell if the Pass-Through Rate for such
Class for the next succeeding related Interest
Schedule I-6
Accrual Period shall be less than the rate per annum specified by such
Existing Certificateholder; and/or
(3) the principal amount of the Outstanding Class
owned by such Existing Certificateholder which such Existing
Certificateholder offers to sell without regard to the Pass-Through
Rate for such Class for the next succeeding related Interest Accrual
Period; and
(B) one or more Broker-Dealers may contact Potential
Certificateholders to determine the principal amount of Certificates of the
related Class which each Potential Certificateholder offers to purchase, if
the Pass-Through Rate for such Class for the next succeeding related
Interest Accrual Period shall not be less than the rate per annum specified
by such Potential Certificateholder.
The statement of an Existing Certificateholder or a Potential Certificateholder
referred to in (A) or (B) of this paragraph (i) is herein referred to as an
"Order," and each Existing Certificateholder and each Potential
Certificateholder placing an Order is herein referred to as a "Bidder"; an Order
described in clause (A)(1) is herein referred to as a "Hold Order"; an Order
described in clauses (A)(2) and (B) is herein referred to as a "Bid"; and an
Order described in clause (A)(3) is herein referred to as a "Sell Order."
(ii) (A) Subject to the provisions of Section 2.1.1(b) hereof, a
Bid by an Existing Certificateholder shall constitute an irrevocable offer
to sell:
(1) the principal amount of the Outstanding Class
specified in such Bid if the Pass-Through Rate for such Class
determined as provided in this Section 2.1.1 shall be less than the
rate specified therein; or
(2) such principal amount, or a lesser principal
amount of the Outstanding Class to be determined as set forth in
Section 2.1.1 (d)(i)(D) hereof, if the a Pass-Through Rate for such
Class determined as provided in this Section 2.1.1 shall be equal to
the rate specified therein; or
(3) such principal amount, or a lesser principal
amount of the Outstanding Class to be determined as set forth in
Section 2.1.1(d)(ii)(C) hereof, if the rate specified therein shall be
higher than the Pass-Through Rate for such Class and Sufficient Bids
have not been made.
(B) Subject to the provisions of Section 2.1.1 (b) hereof,
a Sell Order by an Existing Certificateholder shall constitute an
irrevocable offer to sell:
(1) the principal amount the Outstanding Class
specified in such Sell Order; or
(2) such principal amount, or a lesser principal
amount of the Outstanding Class set forth in Section 2.1.1(d)(ii)(C)
hereof, if Sufficient Bids have not been made.
Schedule I-7
(C) Subject to the provisions of Section 2.1.1(b) hereof, a
Bid by a Potential Certificateholder shall constitute an irrevocable offer
to purchase:
(1) the principal amount of the Outstanding Class
specified in such Bid if the Pass-Through Rate for such Class
determined as provided in this Section 2.1.1 shall be higher than the
rate specified in such Bid; or
(2) such principal amount, or a lesser principal
amount the Outstanding Class set forth in Section 2.1.1(d)(i)(E)
hereof, if the Pass-Through Rate for such Class determined as provided
in this Section 2.1.1 shall be equal to the rate specified in such
Bid.
(b) (i) Each Broker-Dealer shall submit in writing to the Auction
Agent prior to the Submission Deadline on each Auction Date all Orders obtained
by such Broker-Dealer and shall specify with respect to each such Order:
(A) the name of the Bidder placing such Order;
(B) the aggregate principal amount of the Outstanding Class
that are the subject of such Order;
(C) to the extent that such Bidder is an Existing
Certificateholder:
(1) the principal amount of the Outstanding Class, if
any, subject to any Hold Order placed by such Existing
Certificateholder;
(2) the principal amount of the Outstanding Class, if
any, subject to any Bid placed by such Existing Certificateholder and
the rate specified in such Bid; and
(3) the principal amount of the Outstanding Class, if
any, subject to any Sell Order placed by such Existing
Certificateholder;
and
(D) to the extent such Bidder is a Potential
Certificateholder, the rate specified in such Potential Certificateholder's
Bid.
(ii) If any rate specified in any Bid contains more than three
figures to the right of the decimal point, the Auction Agent shall round
such rate up to the next higher one thousandth (.001) of one percent.
(iii) If an Order or Orders covering all of the Outstanding Class
owned by an Existing Certificateholder is not submitted to the Auction
Agent prior to the Submission Deadline, the Auction Agent shall deem a Hold
Order to have been submitted on behalf of such Existing Certificateholder
covering the principal amount of such Outstanding owned by such Existing
Certificateholder and not subject to an Order submitted to the Auction
Agent.
Schedule I-8
(iv) Neither the Servicer, the Trustee nor the Auction Agent
shall be responsible for any failure of a Broker-Dealer to submit an Order
to the Auction Agent on behalf of any Existing Certificateholder or
Potential Certificateholder.
(v) If any Existing Certificateholder submits through a
Broker-Dealer to the Auction Agent one or more Orders covering in the
aggregate more than the principal amount of the Outstanding Class owned by
such Existing Certificateholder, such Orders shall be considered valid as
follows and in the following order of priority:
(A) All Hold Orders shall be considered valid, but only up
to the aggregate principal amount of the Outstanding Class owned by such
Existing Certificateholder, and if the aggregate principal amount of such
Class subject to such Hold Orders exceeds the aggregate principal amount of
such Class owned by such Existing Certificateholder, the aggregate
principal amount of such Class subject to each such Hold Order shall be
reduced pro rata so that the aggregate principal amount of such Class
subject to such Hold Order equals the aggregate principal amount of the
Outstanding Class owned by such Existing Certificateholder.
(B) (1) any Bid shall be considered valid up to an amount
equal to the excess of the principal amount of the Outstanding Class owned
by such Existing Certificateholder over the aggregate principal amount of
such Class subject to any Hold Order referred to in clause (A) of this
paragraph (v);
(2) subject to subclause (1) of this clause (B), if
more than one Bid with the same rate is submitted on behalf of such
Existing Certificateholder and the aggregate principal amount of the
Outstanding Class subject to such Bids is greater than such excess,
such Bids shall be considered valid up to an amount equal to such
excess;
(3) subject to subclauses (1) and (2) of this clause
(B), if more than one Bid with different rates are submitted on behalf
of such Existing Certificateholder, such Bids shall be considered
valid first in the ascending order of their respective rates until the
highest rate is reached at which such excess exists and then at such
rate up to the amount of such excess; and
(4) in any such event, the amount of the Outstanding
Class, if any, subject to Bids not valid under this clause (B) shall
be treated as the subject of a Bid by a Potential Certificateholder at
the rate therein specified; and
(C) All Sell Orders shall be considered valid up to an
amount equal to the excess of the principal amount of the Outstanding Class
owned by such Existing Certificateholder over the aggregate principal
amount of such Certificates subject to Hold Orders referred to in clause
(A) of this paragraph (v) and valid Bids referred to in clause (B) of this
paragraph (v).
(vi) If more than one Bid for a Class is submitted on behalf of
any Potential Certificateholder, each Bid submitted shall be a separate Bid
with the rate and principal amount therein specified.
Schedule I-9
(vii) An Existing Certificateholder that offers to purchase
additional Certificates of any Class is, for purposes of such offer,
treated as a Potential Certificateholder.
(viii) Any Bid or Sell Order submitted by an Existing
Certificateholder covering an aggregate principal amount of Certificates
not equal to an Authorized Denomination shall be rejected and shall be
deemed a Hold Order. Any Bid submitted by a Potential Certificateholder
covering an aggregate principal amount of a Class not equal to an
Authorized Denomination shall be rejected.
(ix) Any Bid specifying a rate higher than the Maximum Auction
Rate will (a) be treated as a Sell Order if submitted by an Existing
Certificateholder and (b) not be accepted if submitted by a Potential
Certificateholder.
(x) Any Order submitted in an Auction by a Broker-Dealer to the
Auction Agent at the Submission Deadline on any Auction Date shall be
irrevocable.
(c) (i) Not earlier than the Submission Deadline on each Auction
Date, the Auction Agent shall assemble all valid Orders submitted or deemed
submitted to it by the Broker-Dealers (each such Order as submitted or deemed
submitted by a Broker-Dealer being herein referred to individually as a
"Submitted Hold Order," a "Submitted Bid" or a "Submitted Sell Order," as the
case may be, or as a "Submitted Order," and collectively as "Submitted Hold
Orders," "Submitted Bids" or "Submitted Sell Orders," as the case may be, or as
"Submitted Orders") and shall determine:
(A) the excess of the total principal amount of the
Outstanding Class over the sum of the aggregate principal amount of such
Outstanding Class subject to Submitted Hold Orders (such excess being
herein referred to as the "Available Certificates"), and
(B) from the Submitted Orders whether:
(1) the aggregate principal amount of the Outstanding
Class subject to Submitted Bids by Potential Certificateholders
specifying one or more rates equal to or lower than the Maximum
Auction Rate for such Class;
exceeds or is equal to the sum of:
(2) the aggregate principal amount of the Outstanding
Class subject to Submitted Bids by Existing Certificateholders
specifying one or more rates higher than the Maximum Auction Rate for
such Class; and
(3) the aggregate principal amount of the Outstanding
Class subject to Submitted Sell Orders;
(in the event such excess or such equality exists, other than because all of the
Outstanding Class is subject to Submitted Hold Orders, such Submitted Bids
described in subclause (1) above shall be referred to collectively as
"Sufficient Bids"); and
Schedule I-10
(C) if Sufficient Bids exist, the "Bid Auction Rate", shall
be the lowest rate specified in such Submitted Bids such that if:
(1) (x) each Submitted Bid from Existing
Certificateholders specifying such lowest rate and (y) all other
Submitted Bids from Existing Certificateholders specifying lower rates
were rejected, thus entitling such Existing Certificateholders to
continue to own the principal amount of such Certificates subject to
such Submitted Bids; and
(2) (x) each such Submitted Bid from Potential
Certificateholders specifying such lowest rate and (y) all other
Submitted Bids from Potential Certificateholders specifying lower
rates were accepted;
the result would be that such Existing Certificateholders described in subclause
(1) above would continue to own an aggregate principal amount of the Outstanding
Class which, when added to the aggregate principal amount of such Outstanding
Class to be purchased by such Potential Certificateholders described in
subclause (2) above, would equal not less than the Available Certificates.
(ii) Promptly after the Auction Agent has made the determinations
pursuant to Section 2.1.1(c)(i) hereof, the Auction Agent shall advise the
Trustee of the Net Weighted Average Contract Rate of the Group II Contracts
(as provided by the Trustee pursuant to Section 2.1.3 hereof) and, for each
Class, the Maximum Auction Rate and the All Hold Rate and the components
thereof on the Auction Date and, based on such determinations, the Auction
Rate for the next succeeding Interest Accrual Period as follows:
(A) if Sufficient Bids for a Class exist, that the Auction
Rate for such Class for the next succeeding Interest Accrual Period shall
be equal to the Bid Auction Rate for such Class;
(B) if Sufficient Bids for a Class do not exist (other than
because all of the Outstanding Certificates in such Class is subject to
Submitted Hold Orders), that the Auction Rate for such Class for the next
succeeding Interest Accrual Period shall be equal to the Maximum Auction
Rate for such Class;
(C) if all the Outstanding Class are subject to Submitted
Hold Orders, that the Auction Rate for such Class for the next succeeding
Interest Accrual Period shall be equal to the All Hold Rate for such Class;
or
(D) if a scheduled Auction is not being held for any reason
with respect to a Class, the Auction Rate for such Class for the next
succeeding Interest Accrual Period shall be equal to the Maximum Auction
Rate for such Class.
(iii) Promptly after the Auction Agent has determined the Auction
Rate for a Class, the Auction Agent shall determine and advise the Trustee
of the Pass-Through Rate, which rate, with respect to the Class II A-2
Certificates, shall be the lesser of (a) the Auction Rate established for
the Class II A-2 Certificates and (b) the Net Weighted Average Contract
Rate of the Group II Contracts and which rate, with respect to the Class I
A-2 Certificates, shall be the Auction Rate established for the Class I A-2
Certificates.
Schedule I-11
(d) Existing Certificateholders shall continue to own the principal
amount of a Auction Certificates that are subject to Submitted Hold Orders. If
the Net Weighted Average Contract Rate on the Group II Contracts is equal to or
greater than the Bid Auction Rate with respect to the Class II A-2 Certificates
and if Sufficient Bids have been received by the Auction Agent, the Bid Auction
Rate on the Class II A-2 Certificates will be the Class II A-2 Pass-Through
Rate, and Submitted Bids and Submitted Sell Orders will be accepted or rejected
and the Auction Agent will take such other action as described below in
subparagraph (i). If Sufficient Bids have been received by the Auction Agent,
the Bid Auction Rate with respect to the Class I A-2 Certificates will be the
Class I A-2 Pass-Through Rate, and Submitted Bids and Submitted Sell Orders will
be accepted or rejected and the Auction Agent will take such other action as
described below in subparagraph (i).
If the Net Weighted Average Contract Rate on the Group II Contracts is
less than the Auction Rate for the Class II A-2 Certificates, the Net Weighted
Average Contract Rate on the Class II A-2 Certificates will be the Class II A-2
Pass-Through Rate. If the Auction Agent has not received Sufficient Bids (other
than because all of the Outstanding Class II A-2 Certificates are subject to
Submitted Hold Orders), the Class II A-2 Pass-Through Rate will be the lesser of
the Maximum Auction Rate for the Class II A-2 Certificates and the Net Weighted
Average Contract Rate on the Group II Contracts. In any of the cases described
above, Submitted Orders will be accepted or rejected and the Auction Agent will
take such other action as described below in subparagraph (ii).
(i) (x) with respect to the Class II A-2 Certificates, if
Sufficient Bids have been made and the Net Weighted Average Contract Rate
on the Group II Contracts is equal to or greater than the Bid Auction Rate
on the Class II A-2 Certificates (in which case the Class II A-2
Pass-Through Rate shall be the Bid Auction Rate on the Class II A-2
Certificates) and (y) with respect to the Class I A-2 Certificates, if
Sufficient Bids have been made and the Net Weighted Average Contract Rate
on the Group II Contracts is equal to or greater than the Bid Auction Rate
on the Class I A-2 Certificates (in which case the Class II A-2
Pass-Through Rate shall be the Bid Auction Rate on the Class I A-1
Certificates), all Submitted Sell Orders shall be accepted and, subject to
the provisions of paragraphs (iv) and (v) of this Section 2.1.1(d),
Submitted Bids shall be accepted or rejected as follows in the following
order of priority, and all other Submitted Bids shall be rejected:
(A) Existing Certificateholders' Submitted Bids for a Class
specifying any rate that is higher than the Pass-Through Rate for such
Class shall be accepted, thus requiring each such Existing
Certificateholder to sell the aggregate principal amount of the Class
subject to such Submitted Bids;
(B) Existing Certificateholders' Submitted Bids for a Class
specifying any rate that is lower than the Pass-Through Rate for such Class
shall be rejected, thus entitling each such Existing Certificateholder to
continue to own the aggregate principal amount of such Class subject to
such Submitted Bids;
(C) Potential Certificateholders' Submitted Bids for a
Class specifying any rate that is lower than the Pass-Through Rate for such
Class shall be accepted;
Schedule I-12
(D) Each Existing Certificateholders' Submitted Bid for a
Class specifying a rate that is equal to the Pass-Through Rate for such
Class shall be rejected, thus entitling such Existing Certificateholder to
continue to own the aggregate principal amount of related Certificates
subject to such Submitted Bid, unless the aggregate principal amount of the
Outstanding Certificates of such Class subject to all such Submitted Bids
for such Class shall be greater than the principal amount of such
Certificates (the "remaining principal amount") equal to the excess of the
Available Certificates for such Class over the aggregate principal amount
of such Class subject to Submitted Bids described in clauses (B) and (C) of
this Section 2.1.1(d)(i), in which event such Submitted Bid for such Class
of such Existing Certificateholder shall be rejected in part, and such
Existing Certificateholder shall be entitled to continue to own the
principal amount of such Class subject to such Submitted Bid, but only in
an amount equal to the aggregate principal amount of such Class obtained by
multiplying the remaining principal amount by a fraction, the numerator of
which shall be the principal amount the Outstanding Certificates of such
Class owned by such Existing Certificateholder subject to such Submitted
Bid and the denominator of which shall be the sum of the principal amount
of such Outstanding Class subject to such Submitted Bids made by all such
Existing Certificateholders of such Class that specified a rate equal to
the Pass-Through Rate for such Class; and
(E) Each Potential Certificateholder's Submitted Bid
specifying a rate that is equal to the Pass-Through Rate for a Class shall
be accepted, but only in an amount equal to the principal amount of such
Certificates obtained by multiplying the excess of the aggregate principal
amount of Available Certificates for such Class over the aggregate
principal amount of such Class subject to Submitted Bids described in
clauses (B), (C) and (D) of this Section 2.1.1 (d)(i) by a fraction the
numerator of which shall be the aggregate principal amount of such
Outstanding Class subject to such Submitted Bid and the denominator of
which shall be the sum of the principal amount of such Outstanding Class
subject to Submitted Bids made by all such Potential Certificateholders
that specified a rate equal to the Pass-Through Rate for such Class.
(ii) If Sufficient Bids for the Class I A-2 Certificates have not
been made (other than because all of the Outstanding Class I A-2
Certificates are subject to Submitted Hold Orders), Submitted Orders for
the Class I A-2 Certificates shall be accepted or rejected as follows in
the following order of priority and all other Submitted Bids for the Class
I A-2 Certificates shall be rejected or if Sufficient Bids for the Class II
A-2 Certificates have not been made (other than because all of the
Outstanding Class II A-2 Certificates are subject to submitted Hold
Orders), or if the Net Weighted Average Contract Rate of the Class II A-2
Certificates is less than the Bid Auction Rate for the Class II A-2
Certificates (in which case the Class II A-2 Pass-Through Rate shall be the
Net Weighted Average Contract Rate on the Group II Contracts), Submitted
Orders for the Class II A-2 Certificates shall be accepted or rejected as
follows in the following order of priority and all other Submitted Bids for
the Class II A-2 Certificates shall be rejected:
(A) Existing Certificateholders' Submitted Bids for a Class
specifying any rate that is equal to or lower than the Pass-Through Rate
for such Class shall be rejected, thus entitling such Existing
Certificateholders to continue to own the aggregate principal amount of
such Class subject to such Submitted Bids;
Schedule I-13
(B) Potential Certificateholders' Submitted Bids specifying
(1) any rate that is equal to or lower than the Pass-Through Rate for a
Class shall be accepted and (2) any rate that is higher than the
Pass-Through Rate for such Class shall be rejected; and
(C) Each Existing Certificateholder's Submitted Bid
specifying any rate that is higher than the Pass-Through Rate for a Class
and the Submitted Sell Order of each Existing Certificateholder shall be
accepted, thus entitling each Existing Certificateholder that submitted any
such Submitted Bid or Submitted Sell Order to sell Certificates of such
Class subject to such Submitted Bid or Submitted Sell Order, but in both
cases only in an amount equal to the aggregate principal amount of such
Class obtained by multiplying the aggregate principal amount of such Class
subject to Submitted Bids described in clause (B) of this Section 2.1.1
(d)(ii) by a fraction the numerator of which shall be the aggregate
principal amount of such Outstanding Class owned by such Existing
Certificateholder subject to such Submitted Bid or Submitted Sell Order and
the denominator of which shall be the aggregate principal amount of such
Outstanding Class subject to all such Submitted Bids and Submitted Sell
Orders.
(iii) If all of the Outstanding Class are subject to Submitted
Hold Orders, all Submitted Bids shall be rejected.
(iv) If, as a result of the procedures described in paragraph (i)
or (ii) of this Section 2.1.1(d), any Existing Certificateholder would be
entitled or required to sell, or any Potential Certificateholder would be
entitled or required to purchase, a principal amount of a Class that is not
equal to an Authorized Denomination, the Auction Agent shall, in such
manner as in its sole discretion it shall determine, round up or down the
principal amount of such Class to be purchased or sold by any Existing
Certificateholder or Potential Certificateholder so that the principal
amount of such Class purchased or sold by each Existing Certificateholder
or Potential Certificateholder shall be equal to an Authorized Denomination
or an integral multiple of $25,000 in excess thereof.
(v) If, as a result of the procedures described in paragraph
(ii) of this Section 2.1.1(d), any Potential Certificateholder would be
entitled or required to purchase less than an Authorized Denomination of
any Class, the Auction Agent shall, in such manner as in its sole
discretion it shall determine, allocate such Certificates for purchase
among Potential Certificateholders so that only Certificates in Authorized
Denominations or integral multiples of $25,000 in excess thereof are
purchased by any Potential Certificateholder, even if such allocation
results in one or more of such Potential Certificateholders not purchasing
any such Certificates.
(e) Based on the result of each Auction, the Auction Agent shall
determine the aggregate principal amount of a Class to be purchased and the
aggregate principal amount of such Class to be sold by Potential
Certificateholders and Existing Certificateholders on whose behalf each
Broker-Dealer submitted Bids or Sell Orders and, with respect to each
Broker-Dealer, to the extent that such aggregate principal amount of such Class
to be sold differs from such aggregate principal amount of such Class to be
purchased, determine to which other Broker-Dealer or Broker-Dealers acting for
one or more purchasers such Broker-Dealer shall deliver, or from which other
Broker-Dealer or Broker-Dealers acting for one or more sellers such
Broker-Dealer shall receive, as the case may be, such Certificates.
Schedule I-14
(f) Any calculation by the Auction Agent, the Servicer or the
Trustee, as applicable, of a Pass-Through Rate, the applicable LIBOR, the
applicable Maximum Auction Rate, the applicable All Hold Rate and the Net
Weighted Average Contract Rate of the Group II Contracts shall, in the absence
of manifest error, be binding on all other parties.
SECTION 2.1.2 AUCTION AGENT FEES AND EXPENSES.
The Auction Agent Fee will be paid by the Holder of the Class R
Certificates pursuant to the Auction Agent Agreement.
SECTION 2.1.3 CALCULATION OF MAXIMUM AUCTION RATE, ALL HOLD RATE, NET
WEIGHTED AVERAGE CONTRACT RATE AND LIBOR.
The Trustee shall inform the Auction Agent of the Net Weighted Average Contract
Rate on the Group II Contracts and the Net Weighted Average Contract Rate on the
Group I Contracts in writing no later than the Business Day preceding each
Auction Date as calculated by Servicer pursuant to Section 5.04(r)(ii) of the
Pooling and Servicing Agreement. The Auction Agent shall, for each Class,
calculate the Maximum Auction Rate, the All Hold Rate and LIBOR, on each Auction
Date and shall notify the Trustee, the Servicer and the Broker-Dealers of the
Net Weighted Average Contract Rate on the Group II Contracts and the Net
Weighted Average Contract Rate on the Group I Contracts and, for each Class, the
Maximum Auction Rate, the All Hold Rate and LIBOR, as provided in the Auction
Agent Agreement. If the ownership of a Class is no longer maintained in
Book-Entry Form by the Depository, the Trustee shall calculate the applicable
Maximum Auction Rate, the Net Weighted Average Contract Rate on the Group I
Contracts and the Net Weighted Average Contract Rate on the Group II Contracts
on the Business Day immediately preceding the first day of each related Interest
Accrual Period commencing after the delivery of certificates representing such
Class. The Auction Agent shall determine LIBOR for each related Interest Accrual
Period other than the Initial Period; provided, that if the ownership of a Class
is no longer maintained in Book-Entry Form, then the Trustee shall determine
LIBOR for each such Interest Accrual Period. The determination by the Trustee or
the Auction Agent, as the case may be, of LIBOR shall (in the absence of
manifest error) be final and binding upon all parties.
SECTION 2.1.4 NOTIFICATION OF RATES, AMOUNTS AND REMITTANCE DATES.
Promptly after the Closing Date and after the beginning of each subsequent
Interest Accrual Period and in any event at least 10 days prior to any
Distribution Date, the Trustee shall confirm with the Auction Agent with respect
to each Class, so long as the ownership of such Class is maintained in
Book-Entry Form by the Depository, the date of such next Distribution Date.
If any day scheduled to be a Distribution Date shall be changed after the
Trustee shall have given the notice or confirmation referred to in the preceding
sentence, the Trustee shall, not later than 9:15 a.m., Eastern time, on the
Business Day next preceding the earlier of the new Distribution Date or the old
Distribution Date, by such means as the Trustee deems practicable, give notice
of such change to the Auction Agent and the Depository, so long as the ownership
of any Certificate is maintained in Book-Entry Form by the Depository.
Schedule I-15
SECTION 2.1.5 AUCTION AGENT.
(a) Bankers Trust Company is hereby appointed as Initial Auction
Agent to serve as agent for the Trustee in connection with Auctions. The Trustee
will enter into the Initial Auction Agent Agreement with Bankers Trust Company,
as the Initial Auction Agent. Any Substitute Auction Agent shall be (i) a bank,
national banking association or trust company duly organized under the laws of
the United States of America or any state or territory thereof having its
principal place of business in the Borough of Manhattan, New York, or such other
location as approved by the Trustee and the Market Agent in writing and having a
combined capital stock or surplus of at least $50,000,000, or (ii) a member of
the National Association of Securities Dealers, Inc., having a capitalization of
at least $50,000,000, and, in either case, authorized by law to perform all the
duties imposed upon it hereunder and under the Auction Agent Agreement. The
Auction Agent may at any time resign and be discharged of the duties and
obligations created by these Auction Procedures by giving at least 90 days'
notice to the Trustee, the Class R Certificateholders, the Servicer and the
Market Agent. The Auction Agent may be removed at any time by the Trustee or the
Certificateholders of 66-2/3% of the aggregate principal amount of the Auction
Certificates then Outstanding, and if by such Certificateholders, by an
instrument signed by such Certificateholders or their attorneys and filed with
the Auction Agent, the Servicer, the Class R Certificateholders, the Market
Agent and the Trustee upon at least 90 days' notice. Neither resignation nor
removal of the Auction Agent pursuant to the preceding two sentences shall be
effective until and unless a Substitute Auction Agent has been appointed and has
accepted such appointment. If required by the Certificateholders of 66-2/3% of
the aggregate principal amount of the Auction Certificates then outstanding or
by the Market Agent, a Substitute Auction Agent Agreement shall be entered into
with a Substitute Auction Agent. Notwithstanding the foregoing, the Auction
Agent may terminate the Auction Agent Agreement if, within 25 days after
notifying the Trustee, the Servicer, the Holder of the Class R Certificates and
the Market Agent in writing that it has not received payment of any Auction
Agent Fee due it in accordance with the terms of the Auction Agent Agreement,
the Auction Agent does not receive such payment.
(b) If the Auction Agent shall resign or be removed or be dissolved,
or if the property or affairs of the Auction Agent shall be taken under the
control of any state or federal court or administrative body because of
bankruptcy or insolvency, or for any other reason, the Trustee (after receipt of
a certificate from the Market Agent confirming that any proposed Substitute
Auction Agent meets the requirements described in the immediately preceding
paragraph) shall use its best efforts to appoint a Substitute Auction Agent.
(c) The Auction Agent is acting as agent for the Trustee in
connection with Auctions. In the absence of bad faith or negligence on its part,
the Auction Agent shall not be liable for any action taken, suffered or omitted
in good faith or for any error of judgment made by it in the performance of its
duties under the Auction Agent Agreement. The Auction Agent shall not be liable
for any error of judgment made in good faith unless the Auction Agent shall have
been negligent in ascertaining the pertinent facts.
SECTION 2.1.6 BROKER-DEALERS.
(a) The Auction Agent will enter into a Broker-Dealer Agreement with
Xxxxxxx Xxxxx Xxxxxx Inc. ("SSB") as the initial Broker-Dealer. The Servicer
may, from time to time, approve one or more additional persons to serve as
Broker-Dealers under Broker-Dealer
Schedule I-16
Agreements and shall be responsible for providing such Broker-Dealer Agreements
to the Trustee and the Auction Agent, provided, however that while SSB is
serving as the Market Agent, SSB shall have the right to consent to the approval
of any additional Broker-Dealers, which consent will not be unreasonably
withheld. The Auction Agent shall have entered into a Broker-Dealer Agreement
with each Broker-Dealer prior to the participation of any such Broker-Dealer in
any Auction.
(b) Any Broker-Dealer may be removed at any time, at the request of
the Servicer, but there shall, at all times, be at least one Broker-Dealer
appointed and acting as such.
SECTION 2.1.7 CHANGES IN THE AUCTION DATE.
The Market Agent may specify an earlier or later Auction Date for a Class of
Auction Certificates (but in no event more than five Business Days earlier or
later) than the Auction Date that would otherwise be determined in accordance
with the definition of "Auction Date" in Article 1 of these Auction Procedures
with respect to one or more specified Interest Accrual Periods in order to
conform with then current market practice with respect to similar securities or
to accommodate economic and financial factors that may affect or be relevant to
the day of the week constituting an Auction Date and the Pass-Through Rate. The
Market Agent shall provide notice of its determination to specify an earlier or
later Auction Date for one or more Interest Accrual Periods by means of a
written notice delivered at least 10 days prior to the proposed changed Auction
Date to the Trustee, the Auction Agent, the Servicer and the Depository.
In connection with any change described in this Section 2.1.7, the Auction Agent
shall provide such further notice to such parties as is specified in Section 2.5
of the Auction Agent Agreement.
SECTION 2.2 ADDITIONAL PROVISIONS REGARDING THE PASS-THROUGH RATES ON
THE AUCTION CERTIFICATES.
The determination of the Pass-Through Rate for each Class by the Auction Agent,
the Trustee or any other Person pursuant to the provisions of the applicable
Section of this Article 2 shall be conclusive and binding on the
Certificateholders to which the Pass-Through Rate applies, and the Trustee may
rely thereon for all purposes.
In no event shall the cumulative amount of interest paid or payable on the
Auction Certificates (including interest calculated as provided herein, plus any
other amounts that constitute interest on the Auction Certificates under
applicable law, which are contracted for, charged, reserved, taken or received
pursuant to such Certificates or related documents) calculated from the date of
issuance of such Certificates through any subsequent day during the term of the
applicable Auction Rate or otherwise prior to payment in full of such
Certificates exceed the amount permitted by applicable law. If the applicable
law is ever judicially interpreted so as to render usurious any amount called
for under the Auction Certificates or related documents or otherwise contracted
for, charged, reserved, taken or received in connection with such Certificates,
or if the acceleration of the maturity of the Auction Certificates results in
payment to or receipt by the Certificateholder or any former Certificateholder
of such Certificates of any interest in excess of that permitted by applicable
law, then, notwithstanding any provision of such Certificates or related
documents to the contrary, all excess amounts theretofore paid or received with
respect to such Certificates shall be credited on the principal balance of such
Certificates (or, if such Certificates have been paid or would thereby be paid
in full, refunded by the recipient thereof), and the provisions of the such
Certificates and
Schedule I-17
related documents shall automatically and immediately be deemed reformed and the
amounts thereafter collectible hereunder and thereunder reduced, without the
necessity of the execution of any new document, so as to comply with the
applicable law, but so as to permit the recovery of the fullest amount otherwise
called for under such Certificates and under the related documents.
SECTION 2.3 QUALIFICATIONS OF MARKET AGENT.
The Market Agent shall be a member of the National Association of Securities
Dealers, Inc., have a capitalization of at least $50,000,000 and be authorized
by law to perform all the duties imposed upon it by these Auction Procedures.
The Market Agent may resign and be discharged of the duties and obligations
created by these Auction Procedures by giving at least 30 days' notice to the
Trustee, the Auction Agent and the Servicer, provided that such resignation
shall not be effective until the appointment of a successor market agent by the
Servicer and the acceptance of such appointment by such successor market agent.
The Market Agent may be replaced at the direction of the Servicer, by an
instrument signed by an officer of the Servicer, filed with the Market Agent and
the Trustee at least 30 days before the effective date of such replacement,
provided that such replacement shall not be effective until the appointment of a
successor market agent by the Servicer and the acceptance of such appointment by
such successor market agent.
In the event that the Market Agent shall be removed or be dissolved, or if the
property or affairs of the Market Agent shall be taken under the control of any
state or federal court or administrative body because of bankruptcy or
insolvency, or for any other reason, and there is no Market Agent and the
Servicer shall not have appointed a successor Market Agent, the Trustee,
notwithstanding the provisions of the first paragraph of this Section, shall be
deemed to be the Market Agent for all purposes of these Auction Procedures until
the appointment by the Servicer of the successor Market Agent. Nothing in this
Section shall be construed as conferring on the Trustee additional duties other
than as set forth herein.
Schedule I-18
EXHIBIT A
CONTRACT SCHEDULE
(a copy can be obtained from the Trustee)
Exhibit A-1
EXHIBIT B
FORM OF CLASS 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. : [I][II]A-[1][2]-__
Date of Pooling and Servicing Agreement : September 1, 2001
Cut-Off Date : August 31, 2001
First Distribution Date : [ ], 2001
Initial Certificate Balance of $[] [100,000,000]
this Certificate ("Denomination") :
Initial Certificate Balance of all $[] [100,000,000]
Class [I][II] A-[1] [2] Certificates :
Pass-Through Rate : [LIBOR + 0.[ ] [Auction Rate]
Month of Last Scheduled [ ]
Distribution Date : []
CUSIP : [ ]
[ ]
Exhibit B-1
GreenPoint Credit Manufactured Housing Contract Trust
Pass-Through Certificates, Series 2001-2
evidencing a percentage interest in any distributions allocable to the
Class [I][II] A-[1][2] Certificates with respect to a Trust Fund consisting
primarily of a pool of conventional manufactured housing contracts (the
"Contracts") formed and sold by
GreenPoint Credit, LLC (the "Contract Seller")
which manufactured housing contracts were originated or acquired by Contract
Seller, and are initially serviced by GreenPoint Credit, LLC (the "Servicer").
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by the Contract Seller, the Servicer or the
Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class [I][II]
A-[1][2] Certificates) in certain monthly distributions with respect to a Trust
Fund consisting of the Contracts sold to the Trustee by the Contract Seller. The
Trust Fund was created pursuant to a Pooling and Servicing Agreement, dated as
of September 1, 2001 (the "Agreement"), among GreenPoint Credit, LLC, as
Contract Seller and Servicer, Bank One, National Association, as trustee (the
"Trustee") and First Union National Bank, as co-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
[ ]th day of each month or, if such [ ]th 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][II] A-[1][2] Distribution Amount on such
Distribution Date pursuant to Section 5.02 of the Agreement. The Record Date
applicable to each Distribution Date is the close of business on the day
preceding such Distribution Date (or, with respect to the first Distribution
Date, the Closing Date). Distributions to the Holder of this Class [I][II]
A-[1][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][II]
A-[1][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-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.
* * *
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][II]A-[1][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-3
EXHIBIT C
FORM OF REVERSE OF CERTIFICATES
GreenPoint Credit Manufactured Housing Contract Trust
Pass-Through Certificates, Series 2001-2
This Certificate is one of a duly authorized issue of Certificates
designated as GreenPoint Credit Manufactured Housing Contract Trust Pass-Through
Certificates, Series 2001-2 issued in five Classes (Class I A-1, Class I A-2,
Class II A-1, Class II A-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
Certificate Account and such assets as are deposited therein from time to time
and any investments thereof, together, in each case, with any and all income,
proceeds and payments with respect thereto.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Contract Seller, the Servicer 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 purchase, upon giving notice mailed no later
than the 10th day of the month next preceding the month of the exercise of such
option, all Outstanding Contracts at a price equal to the greater of (a) the sum
of (x) 100% of the Scheduled Principal Balance of each Contract (other than any
Contract as to which the related Manufactured Home has been acquired and not yet
disposed of and whose fair market value is included pursuant to clause (y)
below) as of the final Distribution Date, and (y) the fair market value of such
acquired property (as determined by the Servicer as of the close of business on
the third Business Day next preceding the date upon which notice of any such
termination is furnished to Certificateholders pursuant to Section 10.01(c)(i)
of the Agreement), and (b) the aggregate fair market value (as determined by the
Servicer as of the close of business on such third Business Day) of all the
assets in the Trust Fund, plus, in the case of both clause (a) and clause (b),
an amount sufficient to pay any Class I A-1 Unpaid Interest Shortfall, Class I
A-2 Unpaid Interest Shortfall, Class II A-1 Unpaid Interest Shortfall, Class II
A-2 Unpaid Interest Shortfall and the remittance of all funds due under the
Agreement; 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 Insurers, 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. 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.
Any purchase 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.
Exhibit C-2
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
SERVICER, THE CONTRACT SELLER AND THE TRUSTEE THAT THE PURCHASE OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION
UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE
SERVICER, THE CONTRACT SELLER OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN
ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT") OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS IN A TRANSACTION WHICH IS EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 6.02 OF THE AGREEMENT. NEITHER THIS
CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED TO A "DISQUALIFIED
ORGANIZATION" AS DEFINED IN SECTION 860(e)(5) OF THE CODE.
THE HOLDERS OF THE CLASS R CERTIFICATES, BY PURCHASING SUCH CLASS R
CERTIFICATES, SHALL BE DEEMED TO CONSENT (1) TO THE APPOINTMENT OF THE SERVICER
AS THE TAX MATTERS PERSON FOR THE TRUST FUND OR, IF THE SERVICER DETERMINES, IN
ITS SOLE DISCRETION, THAT IT CANNOT ACT IN SUCH CAPACITY, TO THE APPOINTMENT OF
THE HOLDER HOLDING THE LARGEST PERCENTAGE INTEREST IN THE OUTSTANDING CLASS R
CERTIFICATES AS THE TAX MATTERS PERSON FOR THE TRUST FUND. IF THE HOLDER OF THE
LARGEST PERCENTAGE INTEREST IN THE OUTSTANDING CLASS R CERTIFICATES IS APPOINTED
AS THE TAX MATTERS PERSON, SUCH HOLDER SHALL BE DEEMED TO CONSENT, WITH RESPECT
TO ITS CAPACITY AS TAX MATTERS PERSON, TO THE APPOINTMENT OF THE SERVICER AS ITS
ATTORNEY-IN-FACT AND AGENT. 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 REGULAR
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
Certificate No. : R
Date of Pooling and
Servicing Agreement : September 1, 2001
Cut-Off Date : August 31, 2001
First Distribution Date : [ ], 2001
Percentage Interest
Evidenced by this
Class R Certificate %
-----
Exhibit D-2
GreenPoint Credit Manufactured Housing Contract Trust
Pass-Through Certificates, Series 2001-2
evidencing a percentage interest in any distributions allocable to the
Class R Certificates with respect to a Trust Fund consisting primarily of a
pool of conventional manufactured housing contracts (the "Contracts")
formed and sold by
GreenPoint Credit, LLC (the "Contract Seller")
which manufactured housing contracts were originated or acquired by Contract
Seller, and are initially serviced by GreenPoint Credit, LLC (the "Servicer").
Neither this Certificate nor the Contracts are insured or guaranteed by the
Contract Seller, the Servicer or the Trustee referred to below or any of their
respective Affiliates or by any governmental agency or instrumentality.
This certifies that is the registered owner of the Percentage
-------------
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust Fund consisting of the Contracts sold to the Trustee by the
Contract Seller. The Trust Fund was created pursuant to a Pooling and Servicing
Agreement, dated as of September 1, 2001 (the "Agreement"), among GreenPoint
Credit, LLC, as Contract Seller and Servicer, Bank One, National Association, as
trustee (the "Trustee"), and First Union National Bank, as co trustee. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound including, but not limited to, Section 11.12 thereof.
The Trustee will cause to be distributed to the Class R Certificateholder
the amounts to which such Holder is entitled pursuant to the terms of the
Agreement. Such distributions will be made by check mailed to the address of the
Person entitled thereto, as such address shall appear on the Certificate
Register or by wire or other transfer of immediately available funds if such
Person has given the Trustee written instructions at least ten days prior to the
related Distribution Date. Notwithstanding the above, the final distribution on
this Class R Certificate will be made only upon presentation and surrender of
this Class R Certificate at the Corporate Trust Office or the office or agency
maintained by the Trustee for such purpose.
No transfer of this Class R Certificate will be made unless the Trustee has
received either (i) an Opinion of Counsel acceptable to and in form and
substance satisfactory to the Trustee, the Contract Seller and the Servicer with
respect to the permissibility of such transfer under the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), and Section 4975 of the
Internal Revenue Code (the "Code") and stating, among other things, that the
transferee's acquisition of Class R Certificate will not constitute or result in
a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of the Code and will not subject the Servicer, the Contract Seller or the
Trustee to any obligation or liability in addition to those undertaken in the
Agreement or (ii) a representation letter, in the form as described by the
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 September 1, 2001 among GreenPoint Credit, LLC, as
Contract Seller and Servicer, Bank One, National Association, as Trustee, and
First Union National Bank, as Co-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 filing offices required by Section 3.05(b)(ii) of the
Agreement.
4. There has been deposited in the Certificate Account each amount listed
on the schedule attached hereto as the amount by which the remaining principal
balance of each Replaced Contract exceeds the remaining principal balance as of
the beginning of the month of substitution of each Contract being substituted
therefor.
IN WITNESS WHEREOF, I have affixed hereunto my signature this day of,
------
------.
GREENPOINT CREDIT, LLC
By
---------------------------------------------
[Name]
---------------------------------------------
[Title]
--------------------------------------------
By
---------------------------------------------
[Name]
---------------------------------------------
[Title]
--------------------------------------------
Exhibit E-1
EXHIBIT F
FORM OF CERTIFICATE OF SERVICING OFFICER
The undersigned certifies that he is a [title] of [Servicer], a [
corporation] [limited liability company] (the "Servicer"), and that as such he
is duly authorized to execute and deliver this certificate on behalf of the
Servicer pursuant to Section 5.05 of the Pooling and Servicing Agreement (the
"Agreement") dated as of September 1, 2001 among GreenPoint Credit, LLC, as
Contract Seller and Servicer, Bank One, National Association, as Trustee, and
First Union National Bank, as Co-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
-----
-----------, ------ .
[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] (owner of
the GreenPoint Credit Manufactured Housing Contract Trust Pass-Through
Certificates, Series 2001-2, 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 that is an "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;
provided, however, that such delegation will not relieve the Owner of its
obligations as REMIC Administrator. The Owner expressly agrees to be bound by
and to comply with such provisions.
9. That the Owner has reviewed the provisions of that certain
Auction Agent Agreement (the "Auction Agent Agreement"), dated as of October 2,
2001, among Bankers Trust Company (the "Auction Agent"), Bank One, National
Association, in its capacity as Trustee under the Agreement (the "Trustee") and
GreenPoint Bank ("GreenPoint"), in its capacity as Holder of the Class R
Certificates (as defined in the Auction Agent Agreement) and that certain
Broker-Dealer Agreement (the "Broker-Dealer Agreement"), dated as of October 2,
2001, among the Auction Agent, Xxxxxxx Xxxxx Xxxxxx Inc. (the "Broker-Dealer")
and GreenPoint, defining the obligation of the Holder of the Class R
Certificates to pay the Auction Agent Fee (as defined in the Auction Agent
Agreement) and the Broker-Dealer Fee (as defined in the Broker-Dealer Agreement)
and hereby assumes such obligations of the Holder of the Class R Certificates.
The Owner expressly agrees to be bound by and to comply with such provisions.
Exhibit G-1-2
10. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class R Certificates will only be
owned, directly or indirectly, by an Owner that is not a disqualified
organization.
11. The Owner's Taxpayer Identification Number is .
------------
12. This affidavit and agreement relates only to the Class R
Certificates held by the Owner and not to any other holder of the Class R
Certificates. The Owner understands that the liabilities described herein relate
only to the Class R Certificates.
13. That no purpose of the Owner relating to the transfer of any of
the Class R Certificates by the Owner is or will be to impede the assessment or
collections of any tax.
14. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding. In this regard, the Owner hereby represents to
and for the benefit of the person from whom it acquired the Class R Certificate
that the Owner intends to pay taxes associated with holding such Class R
Certificate as they become due, fully understanding that it may incur tax
liabilities in excess of any cash flows generated by the Class R Certificate.
15. That the Owner has no present knowledge or expectation that it
will become insolvent or subject to a bankruptcy proceeding for so long as any
of the Class R Certificates remain outstanding.
16. The Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any 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 ,20 .
----- ------
[NAME OF TRANSFEREE]
By:
------------------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
----------------------------
[Assistant] Secretary
Exhibit G-1-3
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 , 20 .
-------- --------- ---
-----------------------------------------
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:
00000 Xxxxxx Xxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Bank One, National Association,
as Trustee
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: GreenPoint Credit Manufactured Housing Contract
Pass-Through Certificates, Series 2001-2
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Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
(the "Transferor") to (the "Buyer") of $ Initial
-------- --------- -----------
Principal Balance of GreenPoint Credit Manufactured Housing Contract Trust
Pass-Through Certificates, Series 2001-2, Class R (the "Certificates"), issued
pursuant to Section 6.02(c) of the Pooling and Servicing Agreement (the
"Agreement"), dated as of September 1, 2001 among GreenPoint Credit, LLC, as
Contract Seller and Servicer, Bank One, National Association, as 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 Agreement. The
Transferor hereby certifies, represents and warrants to, and covenants with, the
Contract Seller and the Trustee that:
1. No purpose of the Transferor relating to the transfer of the
Certificate by the Transferor to the Buyer is or will be to impede the
assessment or collection of any tax.
2. The Transferor understands that the Buyer has delivered to the Trustee
and the Servicer a transfer affidavit and agreement in the form attached to the
Agreement as Exhibit G-1. The Transferor does not know or believe that any
representation contained therein is false.
3. The Transferor has at the time of the transfer conducted a reasonable
investigation of the financial condition of the Buyer as contemplated by
Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Transferor has determined that the Buyer has historically
paid its debts as they become due and has found no significant evidence to
indicate that the Buyer will not continue to pay its debts as they become due in
the future. The Transferor understands that the transfer of a Class R
Certificate may not be respected for United States income tax purposes (and the
Transferor may continue to be liable for United States income taxes associated
therewith) unless the Transferor has conducted such an investigation.
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) it understands that such
Certificates have not been registered under the Securities Act of 1933, as
amended (the "Act"), and are being disposed of by it 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, it has 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,
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Name of Transferor
By:
----------------------------------------
Name:
Title:
Exhibit G-2-2
EXHIBIT H-1
FORM OF AMBAC CERTIFICATE INSURANCE POLICY
(a copy can be obtained from the Trustee)
Exhibit X-0-0
XXXXXXX X-0
FORM OF RADIAN CERTIFICATE INSURANCE POLICY
(a copy can be obtained from the Trustee)
Exhibit H-2-1
EXHIBIT I
FORM OF DEPOSITORY AGREEMENT
(a copy can be obtained from the Trustee)
Exhibit I-1
EXHIBIT J
ERISA REPRESENTATION LETTER
[date]
GreenPoint Credit, LLC
00000 Xxxxxx Xxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Bank One, National Association
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Re: GreenPoint Credit Manufactured Housing Contract Trust
Pass-Through Certificates, Series 2001-2 - 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 September 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
XXXX 00-00, 00 XX 00000, 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
FORM OF NOTICE OF RATINGS
GREENPOINT CREDIT, LLC
MANUFACTURED HOUSING CONTRACT TRUST
PASS-THROUGH CERTIFICATES, SERIES 2001-2
The undersigned certifies that he is a [title] of [Servicer], a
[ corporation] [limited liability company] (the "Servicer"), and
------------
that as such he is duly authorized to execute and deliver this certificate on
behalf of the Servicer pursuant to Section 4.23 of the Pooling and Servicing
Agreement (the "Agreement") dated as of September 1, 2001 among GreenPoint
Credit, LLC, as Contract Seller and Servicer, Bank One, National Association, as
Trustee, and First Union National Bank, as Co-Trustee (all capitalized terms
used herein without definition having the respective meanings specified in the
Agreement), and further certifies that:
NOTICE IS HEREBY GIVEN to the [Auction Agent [if the Class I A-2 or Class II A-2
Certificates are held in Book-Entry Form]] [Trustee [if the Class I A-2 or Class
II A-2 Certificates are no longer maintained in Book-Entry Form] by the Servicer
pursuant to Section 2.3(a) of the Auction Agent Agreement that:
1. as of the date of this notice the rating by Xxxxx'x on the
Class [I][II]}A Certificates is ; and
-----
2. as of the date of this notice the rating by S&P on the Class
[I][II]A Certificates is ;
-----
The Auction Agent may rely on such ratings for all purposes of the Pooling and
Servicing Agreement, including determination of the Maximum Auction Rate
thereunder, from the date hereof until further notice from the undersigned.
[ ], not in its individual capacity but
---------
solely as Servicer
By:
----------------------------------
Name:
Title:
Exhibit K-1
