Exhibit 4.4
GREENPOINT CREDIT, LLC,
CONTRACT SELLER AND SERVICER,
and
GREENPOINT ASSET LLC,
PURCHASER
CONTRACT SALE AND SERVICING AGREEMENT
Dated as of [______]
GreenPoint Manufactured Housing Contract Trust
Pass-Through Notes
Series [____]
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS................................................................................. 1
Section 1.01 Terms.................................................................................. 1
ARTICLE II CONVEYANCE OF CONTRACTS, REPRESENTATIONS AND WARRANTIES.................................... 23
Section 2.01 Conveyance of Contracts............................................................... 23
Section 2.02 Filing and Assignment, Name Change or Relocation...................................... 24
Section 2.03 Acceptance by Indenture Trustee....................................................... 25
Section 2.04 Indenture Trustee Receipt of Documents................................................ 25
Section 2.05 Representations and Warranties Regarding the Servicer................................. 26
Section 2.06 Covenants of the Contract Seller, Indenture Trustee and Servicer...................... 27
Section 2.07 Authentication and Delivery of Notes.................................................. 27
Section 2.08 Covenants of the Servicer............................................................. 27
Section 2.09 Covenants of the Contract Seller...................................................... 27
ARTICLE III REPRESENTATIONS AND WARRANTIES BY THE CONTRACT SELLER...................................... 28
Section 3.01 Representations and Warranties of the Contract Seller................................. 28
Section 3.02 Representations and Warranties Regarding Each Contract................................ 29
Section 3.03 Representations and Warranties Regarding the Contracts in the Aggregate............... 33
Section 3.04 Representations and Warranties Regarding the Contracts................................ 34
Section 3.05 Repurchases of Contracts or Substitution of Contracts for Breach of
Representations and Warranties........................................................ 34
Section 3.06 General............................................................................... 37
ARTICLE IV ADMINISTRATION AND SERVICING OF CONTRACTS.................................................. 37
Section 4.01 Responsibility for Contract Administration and Servicing.............................. 37
Section 4.02 Standard of Care...................................................................... 38
Section 4.03 Records............................................................................... 38
Section 4.04 Inspection............................................................................ 38
Section 4.05 Establishment of and Deposits in Note Account......................................... 39
Section 4.06 Payment of Taxes...................................................................... 40
Section 4.07 Enforcement........................................................................... 40
Section 4.08 Transfer of Note Account.............................................................. 41
Section 4.09 Maintenance of Hazard Insurance Policies.............................................. 42
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TABLE OF CONTENTS
(Continued)
Page
Section 4.10 Fidelity Bond and Errors and Omissions Insurance...................................... 43
Section 4.11 Collections under Hazard Insurance Policies, Consent to Transfers of Manufactured
Homes, Assumption Agreements.......................................................... 43
Section 4.12 Realization upon Defaulted Contracts.................................................. 44
Section 4.13 Costs and Expenses.................................................................... 45
Section 4.14 Indenture Trustee to Cooperate........................................................ 45
Section 4.15 Servicing and Other Compensation...................................................... 46
Section 4.16 Custody of Contracts.................................................................. 46
Section 4.17 REMIC Compliance...................................................................... 48
Section 4.18 Management of REO Property............................................................ 53
Section 4.19 Reports to the Securities and Exchange Commission..................................... 55
Section 4.20 Annual Statement as to Compliance..................................................... 55
Section 4.21 Annual Independent Public Accountants' Servicing Report............................... 55
Section 4.22 Retitling of Land Home Contracts...................................................... 55
Section 4.23 Notice of Rating Change............................................................... 56
ARTICLE V PAYMENTS, MONTHLY ADVANCES AND MONTHLY REPORTS............................................. 56
Section 5.01 Monthly Advances by the Servicer...................................................... 56
Section 5.02 Payments.............................................................................. 57
Section 5.03 Permitted Withdrawals from the Note Account........................................... 60
Section 5.04 Monthly Reports....................................................................... 61
Section 5.05 Certificate of Servicing Officer...................................................... 63
Section 5.06 Other Data............................................................................ 63
Section 5.07 Statements to Noteholders............................................................. 64
Section 5.08 Note Insurance Policy; Enhancement Payments........................................... 65
Section 5.09 Reserve Account,...................................................................... 65
Section 5.10 LOC; Draw Amounts; Spread Account..................................................... 65
ARTICLE VI THE NOTES.................................................................................. 67
Section 6.01 The Notes............................................................................. 67
Section 6.02 Note Register; Registration of Transfer and Exchange of Notes......................... 68
Section 6.03 Mutilated, Destroyed, Lost or Stolen Notes............................................ 71
Section 6.04 Persons Deemed Owners................................................................. 72
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TABLE OF CONTENTS
(Continued)
Page
Section 6.05 Access to List of Noteholders' Names and Addresses.................................... 72
Section 6.06 Global Notes.......................................................................... 72
Section 6.07 Notices to Depository................................................................. 73
Section 6.08 Definitive Notes...................................................................... 73
ARTICLE VII THE CONTRACT SELLER AND THE SERVICER....................................................... 74
Section 7.01 Liabilities to Obligors............................................................... 74
Section 7.02 Servicer's Indemnities................................................................ 74
Section 7.03 Operation of Indemnities.............................................................. 75
Section 7.04 Merger or Consolidation of the Contract Seller or the Servicer........................ 75
Section 7.05 Limitation on Liability of the Contract Seller, the Servicer and Others............... 75
Section 7.06 Assignment by Servicer................................................................ 76
Section 7.07 Successor to the Servicer............................................................. 76
ARTICLE VIII EVENTS OF DEFAULT.......................................................................... 78
Section 8.01 Events of Default..................................................................... 78
Section 8.02 Waiver of Defaults.................................................................... 79
Section 8.03 Indenture Trustee to Act, Appointment of Successor.................................... 79
Section 8.04 Notification to Noteholders........................................................... 80
Section 8.05 Effect of Transfer.................................................................... 80
Section 8.06 Transfer of the Account............................................................... 80
Section 8.07 Servicer Termination Events........................................................... 80
ARTICLE IX CONCERNING THE TRUSTEE..................................................................... 81
Section 9.01 Duties of Indenture Trustee........................................................... 81
Section 9.02 Certain Matters Affecting the Indenture Trustee....................................... 83
Section 9.03 Indenture Trustee not Liable for Notes or Contracts................................... 84
Section 9.04 Indenture Trustee May Own Notes....................................................... 84
Section 9.05 Servicer to Pay Fees and Expenses of Indenture Trustee and Certificate of
Administrator......................................................................... 84
Section 9.06 Eligibility Requirements for Indenture Trustee........................................ 85
Section 9.07 Resignation and Removal of the Indenture Trustee...................................... 85
Section 9.08 Successor Indenture Trustee........................................................... 86
Section 9.09 Merger or Consolidation of Indenture Trustee.......................................... 87
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TABLE OF CONTENTS
(Continued)
Page
Section 9.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee..................... 87
Section 9.11 Appointment of Office or Agency....................................................... 88
Section 9.14 Determination of LIBOR; Auction Procedures............................................ 89
ARTICLE X TERMINATION................................................................................ 89
Section 10.01 Termination.......................................................................... 89
ARTICLE XI MISCELLANEOUS PROVISIONS................................................................... 94
Section 11.01 Amendment............................................................................ 94
Section 11.02 Recordation of Agreement; Counterparts............................................... 96
Section 11.03 Governing Law........................................................................ 96
Section 11.04 Calculations......................................................................... 96
Section 11.05 Notices.............................................................................. 96
Section 11.06 Severability of Provisions........................................................... 97
Section 11.07 Assignment........................................................................... 98
Section 11.08 Limitations on Rights of Noteholders................................................. 98
Section 11.09 Inspection and Audit Rights.......................................................... 98
Section 11.10 Notes Nonassessable and Fully Paid................................................... 99
Section 11.11 Third Party Beneficiary.............................................................. 99
Section 11.12 Purchases Upon Conversion............................................................ 99
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This CONTRACT SALE AND SERVICING AGREEMENT (SERIES [_______]), dated
as of [__________] (the "Agreement"), is executed by and between GreenPoint
Credit, LLC, as the contract seller (in such capacity, the "Contract Seller")
and the servicer (in such capacity together with its permitted successors, the
"Servicer"), and GreenPoint Asset LLC (in such capacity, the "Purchaser").
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 Notes, Series
[_______] (the "Notes"). The Notes 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 Purchaser. The Contract
Seller is entering into this Agreement, and the Purchaser is accepting the
Contracts (defined below)) tendered herein 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.
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Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
Affiliate: As to any specified Person, any other Person controlling or
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controlled by or under common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" or "controlled" have meanings
correlative to the foregoing.
Aggregate Net Liquidation Losses: With respect to the time of reference
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thereto, 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
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amendments or supplements hereto.
Annual Servicing Rate: [__]% per annum (or, in the case of a successor
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Servicer engaged at any time after GreenPoint is no longer the Servicer, the
percentage agreed upon pursuant to Section 6.07).
Assignment: An individual assignment of a Mortgage, notice or transfer
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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.
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Auction Agent Agreement: The meaning assigned in the Auction Procedures.
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Auction Agent Fee: The meaning assigned in the Auction Agent Agreement.
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Auction Procedures: The procedures set forth in Schedule I hereof by which
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the Auction Rate is determined.
Auction Rate: The rate of interest per annum that results from
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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, the sum of
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(a) the amount on deposit or otherwise credited to the Note Account as of the
end of the Collection Period ending immediately prior to such Distribution Date,
less the portion of such amount (i) permitted to be withdrawn by the Servicer
pursuant to Section 5.02 or (ii) constituting Excess Contract Payments, (b) the
Monthly Advance for such Distribution Date actually made in respect of such
Distribution Date, and (c) the amount constituting the Holdover Amount as of the
immediately preceding Distribution Date.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
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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 Indenture Trustee is located are authorized or
obligated by law or executive order to be closed.
Closing Date: [__________].
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Code: The Internal Revenue Code of 1986, including any successor or
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amendatory provisions.
Collected Scheduled Payments: As to any Distribution Date, (a) the
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amount on deposit in the Note Account as of the end of the related Collection
Period, less (b) the sum of (i) the aggregate of all Partial Prepayments
collected during such Collection Period, (ii) the aggregate of all payments
collected during such Collection Period on Contracts that were prepaid in full
during such Collection Period (less the aggregate of the Scheduled Payments due
on such Contracts that were delinquent as of the beginning of such Collection
Period and recovered out of such collections), (iii) the aggregate of the Net
Liquidation Proceeds collected in respect of all Contracts that became
Liquidated Contracts during such Collection Period (less the aggregate of
Scheduled Payments due on such Contracts that were delinquent at the beginning
of such Collection Period and recovered out of such collections and less any
Repossession Profits collected during such Collection Period), (iv) the
aggregate of the Repurchase Prices of all Contracts that were repurchased by the
Contract Seller pursuant to Section 3.05 (less the
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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 Note Account
pursuant to clauses (i), (ii), (iii), (iv), (v) and (vii) of Section 5.02, and
(vi) amounts representing Excess Contract Payments.
Collection Period: With respect to any Manufactured Home and Distribution
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Date other than the first Distribution Date, the calendar month preceding any
such Distribution Date and with respect to the first Distribution Date, the
period from ________________ through ________________.
Computer Tape: The computer tape generated by the Servicer on behalf of
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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
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installment loan agreements, including any Land Home Contracts, described in the
Contract Schedule, which Contracts are to be sold and assigned by the Contract
Seller to the Purchaser and which are the subject of this Agreement. The
Contracts include all related security interests and any and all rights to
receive payments which are due pursuant thereto from and after the Cut-Off Date,
but exclude any rights to receive payments which were due pursuant thereto prior
to the Cut-Off Date.
Contract File: As to each Contract other than a Land Home Contract, (a)
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the original copy of the Contract, (b) the original title document issued to the
Contract Seller or [______________] 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 [________________] 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 [_______________], if any, including any
intervening assignments, and (e) any extension, modification or waiver
agreement(s).
Contract Pool: The pool of Contracts held by the Purchaser.
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Contract Rate: With respect to each Contract, the per annum rate of
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interest borne by such Contract, as set forth or described in such Contract.
Contract Schedule: The list identifying each Contract, as amended from
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time to time, which list is attached hereto as Exhibit A and which (a)
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identifies each Contract by contract number and name and address of the Obligor,
and (b) sets forth as to each Contract (i) the Scheduled Principal Balance as of
the Cut-Off Date, (ii) the amount of each monthly payment
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due from the Obligor, (iii) the Contract Rate, (iv) the maturity date, (v) the
maximum cap and (vi) the minimum cap.
Contract Seller: GreenPoint.
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Corporate Trust Office: The principal corporate trust office of the
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Indenture 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 [_______________________], except that for purposes of Section
9.11, such term shall mean the office or agency of the Indenture Trustee in
[____________________].
Cumulative Realized Losses: As to any Distribution Date, the Aggregate
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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.
Current Realized Loss Ratio: As to any Distribution Date, the
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annualized percentage equivalent of the fraction, the numerator of which is the
sum of the Aggregate Net Liquidation Losses for the three preceding Collection
Periods related to such Distribution Date and the denominator of which is the
arithmetic average of the Pool Scheduled Principal Balances for such
Distribution Date and the preceding two Distribution Dates.
Cut-Off Date: The close of business on [______________].
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Cut-Off Date Pool Principal Balance: The aggregate of the Scheduled
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Principal Balances of the Contracts as of the Cut-Off Date.
Deficiency: With respect to any Contract that is a Liquidated Contract,
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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
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the Servicer collects directly from the Obligor with respect to any Deficiency.
Deficiency Percentage: [__]%.
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Definitive Notes: As defined in Section 9.10.
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Depository: The initial Depository shall be the Depository Trust
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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 Notes. 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
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Purchaser and the initial Depository, dated as of the Closing Date,
substantially in the form of Exhibit I.
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Depository Participant: A broker, dealer, bank or other financial
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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
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Business Day prior to such Distribution Date.
Disqualified Organization: Any organization defined as a "disqualified
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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, and (v) any
"electing large partnership" within the meaning of Section 775 of the Code. The
terms "United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
Distribution Amount: As to any Distribution Date, the total amount
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distributed to the Noteholders pursuant to Section 5.02.
Distribution Date: (A) With respect to payment distributions to be made
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to the Noteholders pursuant to the Indenture, the deposit of amounts to the
Special Account pursuant to the Indenture, the statement to be delivered to the
Noteholders pursuant to the Indenture and the determination of the Interest
Accrual Period for the Notes, the [__]th day of each calendar month after the
initial issuance of the Notes, or if such [__]th day is not a Business Day, the
next succeeding Business Day, and (B) for all other purposes hereunder, the
[__]th day of each calendar month commencing in [____], 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 Note Balance has been reduced to zero, and the [__] day
of each calendar month thereafter, or if such [__] day is not a Business Day,
the next succeeding Business Day.
Due Date: With respect to each Contract, the day of the month on which the
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related Scheduled Payment is due, exclusive of any days of grace.
Eligible Account: An account that is one of the following (i) an
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account maintained with a FDIC-insured depository institution which is subject
to examination by federal or state authorities and the commercial paper of which
has a rating of P-1 from Moody's (if rated by Moody's) and A-1 from S&P or the
long-term deposits or long-term unsecured senior debt obligations of which are
in one of the two highest rating categories of Moody's and S&P, or maintained
with a depository institution that is otherwise acceptable to each Rating Agency
(as evidenced by a letter from each Rating Agency to such effect), (ii) a trust
account maintained with the Indenture Trustee in which the funds are either held
uninvested or invested solely in
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Eligible Investments, or (iii) an account that is otherwise acceptable to the
Rating Agencies, as evidenced by a letter from each Rating Agency, without a
reduction or withdrawal of the rating of the Notes.
Eligible Investments: One or more of the following in the order of priority
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specified herein:
(a) any common trust fund, collective investment trust or money
market fund rated Aaa by Moody's and AAAg or AAAm by S&P; and
(b) other obligations or securities that are acceptable to each
Rating Agency as an Eligible Investment hereunder and will not result in a
reduction in or withdrawal of the then current rating or ratings of the Notes,
as evidenced by a letter to such effect from each Rating Agency;
provided, however, that no investments in "interest only" stripped obligations
shall qualify as an Eligible Investment pursuant to this definition.
Eligible Substitute Contract: As to any Replaced Contract for which such
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Eligible Substitute Contract is being substituted pursuant to Section 3.05(b), a
Contract that (a) as of the date of its substitution, satisfies all of the
representations and warranties (which, except when expressly stated to be as of
origination, shall be deemed to be determined as of the date of its substitution
rather than as of the Cut-Off Date or the Closing Date) in Section 3.02 and does
not cause any of the representations and warranties in Section 3.03, after
giving effect to such substitution, to be incorrect, (b) after giving effect to
the Scheduled Payment due in the month of such substitution, has a Scheduled
Principal Balance that is not greater than the Scheduled Principal Balance of
such Replaced Contract, (c) has a Contract Rate that is at least equal to the
Contract Rate of such Replaced Contract, (d) has a remaining term to scheduled
maturity that is not greater than the remaining term to scheduled maturity of
the Replaced Contract, and (e) has not been delinquent for more than 31 days as
to any Scheduled Payment due within twelve months of the date of its
substitution. In addition, a Substitute Contract which is a Land Home Contract
may only be used to replace a Replaced Contract which was a Land Home Contract.
Enhancement Payment: As to any Distribution Date and the immediately
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preceding Collection Period, the amount by which the aggregate amount
distributable to the Noteholders pursuant to the Indenture exceeds the sum of
(x) the aggregate Available Distribution Amount and (y) any Draw Amounts
received by the Indenture Trustee two Business Days prior to such Distribution
Date in respect of Section 5.01(a)(i) and (ii).
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
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Event of Default: Any one of the Events of Default described in Section
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7.01 hereof.
Excess Contract Payment: With respect to any Contract, any portion of a
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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.
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Extension Fee: Any extension fee paid by the Obligor on a Contract.
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FDIC: The Federal Deposit Insurance Corporation, or any successor thereto.
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FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
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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
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to Section 4.09.]
First Distribution Date: With respect to the Notes, [______________].
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FNMA: The Federal National Mortgage Association, a federally chartered
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and privately owned corporation organized and existing under the Federal
National Mortgage Association Charter Act, or any successor thereto.
Formula Principal Distribution Amount: As to any Distribution Date, an
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amount equal to the sum of (a) the Total Regular Principal Amount for such
Distribution Date, (b) any previously undistributed shortfalls in the
distribution of the Total Regular Principal Amount in respect of prior
Distribution Dates and the Holdover Amount as of the immediately preceding
Distribution Date.
Formula Rate: A per annum rate equal to the sum of (a) LIBOR and (b)
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[__]%. Fractional Interest: As to any Note, the product of (a) the Percentage
Interest evidenced by such Note multiplied by (b) the amount derived from
dividing the Note Balance represented by such Note.
Funding Event Demand: As defined in the Insurance Agreement
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Global Note: Any Note registered in the name of the Depository or its
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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 the Indenture). On the Closing Date, all Notes will be Global
Notes.
GreenPoint: GreenPoint Credit, LLC, a Delaware limited liability
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company, its successors or assigns.
GreenPoint Asset LLC. GreenPoint Asset LLC, a Delaware limited
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liability company, its successors or assigns.
GreenPoint Bank: GreenPoint Bank, a New York state chartered savings
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bank, and its successors and assigns.
Gross Margin: With respect to each Contract that has a variable Contract
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Rate, the percentage set forth as such on the Contract Schedule.
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Hazard Insurance Policy: With respect to each Contract, the policy of
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fire and extended coverage insurance (and federal flood insurance, if
applicable) required to be maintained for the related Manufactured Home, as
provided in Section 4.08 (which may be a blanket insurance policy maintained by
the Servicer in accordance with the terms and conditions of Section 4.08).
Holdover Amount: On (i) the first Distribution Date on which the
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Noteholders receive distributions of principal pursuant to the Indenture, zero,
(ii) on each subsequent Distribution Date on which the Noteholders receive
distributions of principal pursuant to the Indenture but prior to the Pro Rata
Date, an amount equal to the lesser of (i) $24,999.99 and (ii) the portion of
the Formula Principal Distribution Amount required to be applied as a principal
payment on the Notes that exceeds $25,000 or an integral multiple of $25,000 and
(iii) on each Distribution Date on and after the Pro Rata Date, zero.
Indenture. The Indenture, dated [____________] between the Purchaser, as
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issuer, and [_______], as Indenture Trustee.
Indenture Trustee. [_____________]
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[Independent Contractor: Either (i) any Person (other than the Servicer
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or the Indenture Trustee) that would be an "independent contractor" 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 the Notes, or such other interest in the Notes as is set
forth in an Opinion of Counsel, which shall be at no expense to the Indenture
Trustee or the Purchaser, delivered to the Indenture 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 Indenture Trustee 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 Indenture Trustee) upon
receipt by the Indenture Trustee of an Opinion of Counsel, which shall be at no
expense to the Indenture Trustee, 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 Contract that has not converted its Contract
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Rate from a variable rate to a fixed rate, the per annum rate equal to (i) the
monthly average yield on U.S. Treasury securities adjusted to a constant
maturity of one year (as compiled by the U.S. Treasury Department), in
accordance with the terms of the related Contract or (ii) Twelve-Month LIBOR in
effect with respect to such Contract.
Initial Note Balance: As set forth in the Indenture.
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Insurance Agreement: The Master Insurance and Reimbursement Agreement,
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dated as of the Closing Date, among GreenPoint, GreenPoint Bank, the Indenture
Trustee and the Insurer, as amended, modified and supplemented from time to time
in accordance with its terms.
Insurer: [_____________] and its successors and assigns.
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Insurer Default: The failure by the Insurer to make a payment under the
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Note Insurance Policy in accordance with its terms.
Interest Accrual Period: With respect to any Distribution Date, other
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than the First Distribution Date, the one month period beginning on the
Distribution Date occurring during the preceding Collection Period and ending on
the day preceding the Distribution Date occurring during the current Collection
Period, and with respect to the First Distribution Date, the period commencing
on the Closing Date and ending on the First Distribution Date.
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 Pass-Through Rate on the Note Balance as of such Distribution Date (before
giving effect to the principal distributions on such Distribution Date) and (b)
any Unpaid Interest Shortfall.
Interest Shortfall: As to any Distribution Date, any amount by which the
------------------
amount distributed to Holders Notes on such Distribution Date is less than the
amount computed pursuant to clause (a) of the definition of "Interest
Distribution Amount."
Land Home Contract: A Contract that is secured by a mortgage or deed of
------------------
trust on real estate on which the related Manufactured Home is situated (as well
as by such related Manufactured Home).
Land Home Contract File: As to each Land Home Contract, (a) the original
-----------------------
copy of the Land Home Contract, (b) the original related Mortgage with evidence
of recording thereon (or, if the original Mortgage has not yet been returned by
the applicable recording office, a copy thereof, certified by such recording
office, which will be replaced by the original Mortgage when it is so returned)
and any title document for the related Manufactured Home, (c) the assignment of
the Land Home Contract from the originator (if other than the Contract Seller)
to the Contract Seller, (d) if such Land Home Contract was originated by the
Contract Seller, an endorsement of such Land Home Contract by the Contract
Seller, and (e) any extension, modification or waiver agreement(s).
Late Payment Fees: Any late payment fees (including any not sufficient
-----------------
funds fees) paid by Obligors on Contracts after all sums received have been
allocated first to regular installments due or overdue and all such installments
are then paid in full.
Latest Due Date: The latest date on which any Contract matures.
---------------
LIBOR: As of any LIBOR Determination Date and the Notes, 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, 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) and as quoted to the Indenture Trustee by
such Reference Banks. 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
-9-
provided as requested, the rate for that day will be the arithmetic mean of the
rates quoted to major banks in New York City, selected by the Servicer, at
approximately 11:00 a.m., New York City time, on that day for loans in United
States dollars to leading European banks for a period equal to the relevant
Interest Accrual Period (commencing on the first day of such Interest Accrual
Period).
LIBOR Determination Date: With respect to any Interest Accrual Period,
------------------------
the second London business day preceding the commencement of such Interest
Accrual Period. For purposes of determining LIBOR, a "London business day" is
any day on which dealings in deposits of United States dollars are transacted in
the London interbank market.
Liquidated Contract: Any defaulted Contract as to which the Servicer
-------------------
has determined that all amounts (other than amounts in respect of any
Deficiency) which it expects to recover from or on account of such Contract have
been recovered; provided that any defaulted Contract in respect of which the
related Manufactured Home and, in the case of Land Home Contracts, Mortgaged
Property, has been realized upon and liquidated and the proceeds of such
disposition have been received shall be deemed to be a Liquidated Contract.
Liquidation Expenses: All reasonable out-of-pocket expenses (exclusive of
--------------------
overhead expenses) which are incurred by the Servicer in connection with the
liquidation of any defaulted Contract, on or prior to the date on which the
related Manufactured Home, and, in the case of Land Home Contracts, Mortgaged
Property, is liquidated, including legal fees and expenses, any unreimbursed
amount expended by the Servicer pursuant to Sections 4.06, 4.07, 4.08 or 4.12
(to the extent such amount is reimbursable under the terms of Sections 4.06,
4.07, 4.08 or 4.12, 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 the Notes, the Holders of Notes evidencing,
--------------------
in the aggregate, at least 51% of the Percentage Interests evidenced by the
Notes.
Manufactured Home: A unit of manufactured housing which meets the
-----------------
requirements of Section 25(e)(10) of the Code, securing the indebtedness of the
Obligor under the related Contract.
Market Agent: The meaning assigned in the Auction Procedures.
------------
-10-
Maximum Cap: With respect to each Contract, the amount set forth on the
-----------
Contract Schedule pursuant to clause (v) of the definition thereof.
Monthly Advance: As to any Distribution Date, the lesser of (1) (a) the
---------------
amount, if any, by which (i) the Scheduled Amount exceeds (ii) the Collected
Scheduled Payments, less (b) the amount of any Scheduled Payment on a Contract
due during the related Collection Period which the Servicer has determined would
be a Nonrecoverable Advance if an advance in respect of such Scheduled Payment
were made and (2) the amount by which the Available Distribution Amount
(exclusive of the Monthly Advance component thereof) for such Distribution Date
is less than the sum of (a) the Total Regular Principal Amount and (b) the
Interest Distribution Amount.
Monthly Advance Reimbursement Amount: Any amount received or deemed to
------------------------------------
be 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 5.03.
--------------
Monthly Servicing Fee: As of any Distribution Date, an amount equal to
---------------------
one-twelfth of 1.00% per annum (or, in the case of a successor Servicer engaged
at any time after GreenPoint is no longer the Servicer, the percentage agreed
upon pursuant to Section 6.07) of the Pool Scheduled Principal Balance for such
Distribution Date.
Monthly Servicing Fee Subordination Event: As to any Distribution Date
-----------------------------------------
and so long as GreenPoint is acting as the Servicer, a Monthly Servicing Fee
Subordination Event shall exist if the Three-Month Average Pass-Through Rate
exceeds Three-Month Average LIBOR by at least 0.50% per annum.
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 the first twelve Distribution Dates,
-----------------
the rate of interest per annum borne by a Contract on the first day of the
related Collection Period minus the Annual Servicing Rate. For each Distribution
Date thereafter, the rate of interest per annum borne by a Contract on the first
day of the related Collection Period minus the sum of (i) the Annual Servicing
Rate and (ii) 0.50%.
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 Pass-Through Rate is based upon the Net Weighted Average
Contract Rate, the excess of (i) the lesser of (a) the product of (x) the
Weighted Average Maximum Cap and (y) the Note Balance and (b) the amount of
interest the Notes would otherwise be entitled to receive on such Distribution
Date had such rate been calculated at the Formula Rate for such Distribution
Date over (ii) the amount
-11-
of interest payable on the Notes at the Net Weighted Average Contract Rate for
such Distribution Date and (B) the Net Funds Cap Carryover Amount, together with
accrued interest thereon at the Pass-Through Rate in effect on such Distribution
Date, for all previous Distribution Dates not previously distributed pursuant to
the Indenture.
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, the
----------------------------------
weighted average of the Net Contract Rates of all of the Contracts as of the
first day of the related Collection Period, weighted on the basis of the
Scheduled Principal Balances of the Contracts 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 4.08 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 Purchaser and stating the reasons for such determination.
Note: Any of the GreenPoint Manufactured Housing Contract Trust Pass-
----
Through Notes, Series [_____].
Note Account: The separate Eligible Account created and initially
------------
maintained by the Indenture Trustee pursuant to the Indenture in the name of the
Indenture Trustee for the benefit of the Holders of the Notes. Funds in the Note
Account shall be held in trust for the aforementioned Noteholders for the uses
and purposes set forth in the Indenture.
Note Administrator. The Person appointed by the Trustee in such capacity
------------------
pursuant to [the Indenture].
Note Balance: The Initial Note Balance minus the sum of all principal
------------
distributions previously made to the Noteholders.
Note Insurance Policy: An unconditional and irrevocable note insurance
---------------------
policy, in the form attached hereto as Exhibit H, to the Purchaser for the
---------
benefit of the Noteholders.
Note Owner: With respect to a Global Note, the person that is the
----------
beneficial owner of an interest in such Global Note.
-12-
Noteholder or Holder: The person in whose name a Note is registered in the
---------- ------
Note Register (initially, Cede & Co., as nominee for the Depository, in the case
of any Global Notes), except that solely for the purpose of giving any consent
pursuant to this Agreement, any Note 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 the Notes, such Notes
shall be deemed to be Outstanding for purposes of any provision hereof that
requires the consent of the Holders of Notes as a condition to the taking of any
action hereunder. The Purchaser 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 Notes are registered in the
name of an Affiliate of the Contract Seller or the Servicer.
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, 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 Purchaser, 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
Purchaser and the Contract Seller, as the case may be.
Optional Termination Date: The date upon which the Pool Scheduled Principal
-------------------------
Balance is less than 10% of the Cut-Off Date Pool Principal Balance.
Original Value: With respect to any Manufactured Home that was new at the
--------------
time the related Contract was originated, the retail stated cash sale price of
such Manufactured Home, plus taxes and, to the extent financed under such
Contract, closing fees paid to third parties, insurance and prepaid finance
charges. With respect to any Manufactured Home that was used at the time the
related Contract was originated, the total delivered sales price of such
Manufactured Home, plus taxes and, to the extent financed under such Contract,
closing fees paid to third parties, insurance and prepaid finance charges.
Outstanding: With respect to any Contract as to the time of reference
-----------
thereto, a Contract that has not been fully prepaid, has not become a Liquidated
Contract, and has not been repurchased pursuant to Section 3.05 prior to such
time of reference.
-13-
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 lessor of (a) the Formula Rate amd (b) the Net
-----------------
Weighted Average Contract Rate
Percentage Interest: As to any Note, the percentage interest evidenced
-------------------
thereby in distributions required to be made on the Notes, such percentage
interest being equal to the percentage obtained by dividing the original
denomination of such Note by the aggregate of the original denominations of all
of the Notes.
Permitted Transferee: Any Person other than (i) a Disqualified Organization
--------------------
or (ii) a Non-United States Person.
Person: Any individual, corporation, partnership, limited liability
------
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government, or any agency or political subdivision thereof.
Pool Scheduled Principal Balance: As to any Distribution Date, the sum of
--------------------------------
the Scheduled Principal Balances of all Contracts at the end of the related
Collection Period.
Principal 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."
-14-
Rating Agency: Either Moody's or S&P.
-------------
Record Date: With respect to any Distribution Date, the close of business
-----------
on the day preceding such Distribution Date.
Reference Banks: The leading banks selected by the Indenture Trustee and/or
---------------
the Auction Agent, which are engaged in transactions in Eurodollar deposits in
the London interbank market.
REO Account: As defined in Section 4.16.
-----------
REO Property: As defined in Section 4.16.
------------
Replaced Contract: A Contract as to which the Contract Seller has a
-----------------
Repurhase Obligation and which, at the Contract Seller's option, is replaced in
the Tzrust 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 Indenture Trustee or
-------------------
the Purchaser, 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 Ratings Services, a division of The XxXxxx-Xxxx
---
Companies, Inc., or any successor thereto.
-15-
Scheduled Amount: As to any Distribution Date, the amount equal to the
----------------
aggregate of the Scheduled Payments that were due during the related Collection
Period in respect of Contracts that were Outstanding immediately following such
Collection Period or whose last Scheduled Payment was due during such Collection
Period.
Scheduled Payment: As to any Distribution Date and each Contract, the
-----------------
amount equal to the scheduled payment that was due during the related Collection
Period in respect of each such Contract that was Outstanding immediately
following such Collection Period or whose last Scheduled Payment was due during
such Collection Period.
Scheduled Principal Balance: As to any Contract and any Distribution
---------------------------
Date or the Cut-Off Date as the case may be, the principal balance of such
Contract as of the Due Date in the related Collection Period (or, with respect
to the Cut-Off Date or the First Distribution Date, as of the Cut-Off Date) as
specified in the amortization schedule for such Contract at the time relating
thereto, after giving effect to all previous Partial Prepayments, all previous
scheduled principal payments (whether or not paid), to the scheduled payment of
principal due on such Due Date (or, with respect to the Cut-Off Date, the
previous Due Date) and to all non-cash reductions to the related Contract during
such Collection Period whether by bankruptcy or other similar proceeding or
other adjustment by the Servicer in the normal course of business of its
servicing activities.
Securities Act: The Securities Act of 1933, as amended.
--------------
Senior Monthly Servicing Fee: As to any Distribution Date, that portion of
----------------------------
the Monthly Servicing Fee in excess of the Subordinated Monthly Servicing Fee.
Servicer: GreenPoint, or its successors in interest or any successor
--------
Servicer under this Agreement as provided by Section 6.06 or 6.07.
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 Indenture Trustee and the Purchaser
by the Servicer, as such list may from time to time be amended.
Special Account: The account established and maintained pursuant to the
---------------
Insurance Agreement.
-16-
Special Account Deposit Amount: As defined in the Insurance Agreement.
------------------------------
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.
Total Regular Principal Amount: As to any Distribution Date, an amount
------------------------------
equal to the sum (without duplication) of (a) all scheduled payments of
principal due on each outstanding Contract during the immediately preceding
Collection Period, (b) all Partial Prepayments on the Contracts received during
the immediately preceding Collection Period, (c) the Scheduled Principal Balance
of each Contract for which a Principal Prepayment in Full was received during
the immediately preceding Collection Period, (d) the Scheduled Principal Balance
of each Contract that became a Liquidated Contract during the immediately
preceding Collection Period, (e) the Scheduled Principal Balance of each
Contract that was repurchased during the immediately preceding Collection Period
pursuant to Section 3.05, and (f) all non-cash reductions to the Scheduled
Principal Balance of each Contract during the immediately preceding Collection
Period whether by bankruptcy or other similar proceeding or other adjustment by
the Servicer in the normal course of business of its servicing activities.
Trust Fund. The corpus of the trust created by the Indenture, to the extent
----------
described herein.
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.
UCC: The Uniform Commercial Code, as in effect in the relevant
---
jurisdiction. United States Person: A citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States, any state thereof or the District of Columbia (other
than a partnership not treated as a United States person under any applicable
Treasury Regulations), or an estate or trust whose income is subject to United
States federal income tax regardless of the source of income.
Unpaid Interest Shortfall: As to any Distribution Date, the amount, if
-------------------------
any, by which the aggregate of the Interest Shortfalls for prior Distribution
Dates exceeds all prior distributions made pursuant to the Indenture in respect
of prior Interest Shortfalls, plus accrued interest thereon (to the extent
payment thereof is legally permissible) at the Pass-Through Rate on such amount
with respect to such prior Distribution Dates.
Voting Rights: The portion of the voting rights of all of the Notes
-------------
that is allocated to any Note. As of any date of determination, 100% of the
Voting Rights shall be allocated among Holders of the Notes in proportion to the
Note Balances of their respective Notes on such date.
-17-
Weighted Average Maximum Cap: With respect to any Distribution Date, an
----------------------------
amount equal to the weighted average of the Maximum Caps on such Distribution
Date (or with respect to any 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 Notes pursuant to Section 2.06 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 Purchaser without recourse (i) all of its right, title
and interest in and to the Contracts listed on the Contract Schedule, as amended
from time to time, (including the security interests created thereby), including
all principal of and interest due on or with respect to such Contracts on or
after the Cut-Off Date (other than payments of principal and interest due on
such Contracts before the Cut-Off Date), (ii) all of the rights under all Hazard
Insurance Policies relating to the Manufactured Homes securing such Contracts
for the benefit of the creditors under such Contracts, (iii) all documents
contained in the Contract Files and in the Land Home Contract Files with respect
to the related Contracts, and (iv) all proceeds of any of the foregoing.
The ownership of each Contract and the contents of the related Contract
File or Land Home Contract File, as applicable, and Servicing File are vested in
the Purchaser. 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 4.15(e), 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
Purchaser as the owner thereof (it being understood that the Servicer's
possession of the contents of each Contract File
-18-
or Land Home Contract File, as applicable, and Servicing File so retained is for
the sole purpose of servicing the related Contract, and such retention and
possession by the Servicer is in a custodial capacity only). Neither the
Contract Seller nor the Servicer shall take any action inconsistent with the
Purchaser'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 Purchaser 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. In that event, the parties also intend and agree that
GreenPoint shall be deemed to have granted to the Purchaser, and GreenPoint does
hereby grant to the Purchaser, a perfected first-priority security interest in
(i) all of its right, title and interest, whether now owned or hereafter
acquired, in and to the Contracts listed on the Contract Schedule, as amended
from time to time (including the security interests created thereby), including
all principal of and interest due on or with respect to such Contracts on or
after the Cut-Off Date (other than payments of principal and interest due on
such Contracts before the Cut-Off Date), (ii) all of the rights under all Hazard
Insurance Policies relating to the Manufactured Homes securing such Contracts
for the benefit of the creditors under such Contracts, (iii) all documents
contained in the Contract Files and in the Land Home Contract Files with respect
to the related Contracts, and (iv) all proceeds of any of the foregoing. The
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
Notes, the security interests created hereby shall continue in full force and
effect and the Indenture Trustee shall be deemed to be the collateral agent for
the benefit of such Person.
Section 2.02 Filing and Assignment, Name Change or Relocation.
------------------------------------------------
(a) On or prior to the Closing Date, the Servicer shall cause to
be filed in the office of the Secretary of State of California a UCC-1 financing
statement signed by GreenPoint describing the related Contracts as collateral
and naming GreenPoint as debtor and the Purchaser as secured party with an
assignment by the Purchaser to the Indenture Trustee.
From time to time, the Servicer shall take and cause to be taken such
actions and execute such documents as are necessary to perfect and protect the
Noteholders' 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 4.20,
to file documents in real property records with respect to a Manufactured Home
or related Contract, absent notice from the Indenture Trustee or the Purchaser
or actual knowledge that such
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Manufactured Home that does not secure a Land Home Contract has become real
property under applicable state law; and further provided, that the Servicer
------- --------
shall have no obligation pursuant to this sentence with respect to any failure
to maintain a first-priority perfected security interest which results from a
breach of any representation or warranty in Section 3.02(j) or (u) as to the
Indenture Trustee's security interest in a Manufactured Home, except to enforce
the Contract Seller's obligations in respect thereof in Section 3.05.
(b) The Servicer agrees to pay all reasonable costs and
disbursements in connection with its duties specified in this Section 2.02.
Section 2.03 Acceptance by Purchaser.
-----------------------
(a) The Purchaser hereby acknowledges conveyance of the
Contracts to the Purchaser and declares that the Purchaser, directly or through
a custodian (which shall be the Servicer pursuant to Section 4.15), holds and
will pledge such Contract Files as collateral for the Notes. The Purchaser
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
Purchaser's interest, or (iv) any defense against or claim against any Contract
by the Obligor or by any other party. The Purchaser 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
Purchaser of any liability or obligation of the Contract Seller, whether on any
Contract, to any Obligor, or otherwise.
Section 2.04 Representations and Warranties Regarding the Servicer.
-----------------------------------------------------
The Servicer makes the following representations and warranties to the
Purchaser and to the Indenture Trustee:
(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 respective 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.
-20-
(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
interests of the Purchaser 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 charter or bylaws of the Servicer, or constitute a material breach of any
mortgage, indenture, contract or other agreement to which the Servicer is a
party or by which the Servicer is bound except where such violation or breach
does not materially adversely affect the interests of the Purchaser, the Trust
Fund or the Noteholders 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 which, if adversely determined,
would in the opinion of the Servicer have a material adverse effect on the
transactions contemplated by this Agreement.
Section 2.05 Covenants of the Contract Seller, Purchaser and Servicer.
--------------------------------------------------------
Upon discovery by any of the Contract Seller, the Servicer, the Indenture
Trustee or the Purchaser 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 which materially and adversely affects
the value of or the interest 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 2.06 Covenants of the Servicer.
-------------------------
The Servicer hereby covenants to the Indenture Trustee, the Contract
Seller and the Purchaser that no written information, certificate of an officer,
statement furnished in writing or written report delivered to the Indenture
Trustee, the Contract Seller, any Affiliate of the Contract Seller or the
Purchaser and prepared by the Servicer pursuant to this Agreement will contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the information, certificate, statement or report not
misleading.
Section 2.07 Covenants of the Contract Seller.
--------------------------------
During the term of this Agreement, the Contract Seller will not change
its name, identity or structure or relocate its chief executive office without
first giving written notice to the Indenture Trustee, the Purchaser and the
Insurer. If any change in the Contract Seller's name, identity or structure or
the relocation of its chief executive office would make any financing or
-21-
continuation statement or notice of lien filed under this Agreement seriously
misleading within the meaning of applicable provisions of the UCC or any title
statute, the Contract Seller, no later than five days after the effective date
of such change, shall file such amendments as may be required to preserve and
protect the Purchaser and the Noteholders' interests in the Contracts and
proceeds thereof and in the Manufactured Homes and the Mortgaged Properties.
ARTICLE III
REPRESENTATIONS AND WARRANTIES BY THE CONTRACT SELLER
Section 3.01 Representations and Warranties of the Contract Seller.
-----------------------------------------------------
The Contract Seller makes the following representations and warranties
to the Purchaser and the Indenture 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 Purchaser 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
interests of the Purchaser, the Trust Fund or the Noteholders 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
-22-
or any order or decree of any court applicable to the Contract Seller or the
charter or bylaws 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 interests of the Purchaser, the
Trust Fund or the Noteholders 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 which, if adversely determined, would in the opinion of the
Contract Seller have a material adverse effect on the transactions contemplated
by this Agreement.
(f) Chief Executive Office. Its chief executive office is in
----------------------
California.
Section 3.02 Representations and Warranties Regarding Each Contract.
------------------------------------------------------
The Contracts listed on the Contract Schedule have been sold by GreenPoint
in its capacity as Contract Seller to the Purchaser on the date of execution and
delivery hereof. As a condition of the purchase by the Purchaser, the Contract
Seller represents and warrants to the Purchaser 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 4.08. 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,
-23-
(ii) originated by the Contract Seller in the ordinary course of business, or
(iii) purchased from [_________], 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 Purchaser under this Agreement
unlawful.
(h) Compliance with Law. All requirements of any federal, state
-------------------
or local law, including usury, truth-in-lending and equal credit opportunity
laws and lender licensing laws, applicable to the Contract have been complied
with.
(i) Contract in Force. The Contract has not been satisfied or
-----------------
subordinated in whole or in part or rescinded, the Manufactured Home securing
the Contract has not been released from the lien of the Contract in whole or in
part and, in the case of a Land Home Contract, the related Mortgaged Property
has not been released from the related Mortgage.
(j) Valid Security Interest. The Contract, other than any Land
-----------------------
Home Contract, creates a valid, subsisting and enforceable (except as may be
limited by laws affecting creditors' rights generally) first-priority security
interest in favor of GreenPoint as secured lender, or agent thereof, in the
Manufactured Home covered thereby; such security interest has been assigned by
the Contract Seller as secured lender to the Purchaser in accordance with the
terms hereof and; the Purchaser has a valid and perfected first-priority
security interest in such Manufactured Home. Each Mortgage is a valid first lien
in favor GreenPoint on 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 Purchaser. The
Purchaser has and will have 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. It purchased the 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 Purchaser, and prior to the transfer of the Contract by
the Contract Seller to the Purchaser, 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 Purchaser.
-24-
(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
Contract that has converted to a fixed rate of interest has a fixed Contract
Rate and each Contract that has not converted to a fixed rate of interest has a
Contract Rate that after an initial period is calculated based upon the Index
plus the Gross Margin. The scheduled monthly payment allocable to interest on
each Contract is calculated on the basis that each scheduled monthly payment is
applied on its Due Date, regardless of when it is actually made.
(p) Enforceability. The Contract contains customary and enforceable
--------------
(except as may be limited by laws affecting creditors' rights generally and by
general principles of equity) provisions such as to render the rights and
remedies of the holder thereof adequate for the realization against the
collateral of the benefits of the security.
(q) Contract Schedule. The information set forth in the Contract
-----------------
Schedule is true and correct.
(r) One Original. There is only one original executed Contract. Such
------------
original Contract is in the custody of the Servicer on the Closing Date.
(s) Loan-to-Value Ratio. At the time of its origination, such
-------------------
Contract had a Loan-to-Value Ratio (rounded to the nearest 1%) not greater than
100%.
(t) Not Real Estate. With respect to each Contract other than a Land
---------------
Home Contract, the related Manufactured Home is personal property and is not
considered or classified as part of the real estate on which it is located under
the laws of the jurisdiction in which it is located and was personal property
and was not considered or classified as part of the real estate on which it was
located under the laws of the jurisdiction in which it was located at the time
the related Contract was executed by the parties thereto, and with respect to
each Contract including Land Home Contracts the related Manufactured Home is, to
the Contract Seller's knowledge, free of damage (including earthquake or
hurricane damage) and in good repair.
(u) Notation of Security Interest. With respect to each Contract
-----------------------------
other than a Land Home Contract, if the related Manufactured Home is located in
a state in which notation of a security interest on the title document is
required or permitted to perfect such security interest, the title document
shows, or, if a new or replacement title document with respect to such
Manufactured Home is being applied for, such title document will be issued
within 180 days and
-25-
will show, GreenPoint, the Purchaser or the Indenture Trustee 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 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 Purchaser 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) claiming an interest in such Manufactured Home. Assuming
consummation of the transactions contemplated herein the Purchaser 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
[___________], [__________] 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) 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 [___________], as Indenture Trustee under the
Indenture dated as of [________] (between such Purchaser and GreenPoint Credit,
LLC) or to any successor thereunder."
(x) Actuarial/Simple Interest Contracts. Except for $[________] by
-----------------------------------
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.
(y) 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 or an estate in fee simple in
the real property.
(z) Financing of Real Property. No Contract other than a Land Home
--------------------------
Contract has financed any amount in respect of real property.
(aa) Minimum and Maximum Contract Rate. As of the Cut-Off Date, the
---------------------------------
Contract with the lowest Contract Rate has a Contract Rate of [___]% and the
Contract with the highest Contract Rate has a Contract Rate of [___]%.
-26-
Section 3.03 Representations and Warranties Regarding the Contracts in the
-------------------------------------------------------------
Aggregate.
---------
The Contract Seller represents and warrants that as of the Closing Date:
(a) Amounts. The aggregate principal amounts payable by Obligors
-------
under the Contracts as of the Cut-Off Date (including scheduled principal
payments due on or after the Cut-Off Date but paid prior to the Cut-Off Date)
equal or exceed the Cut-Off Date Pool Principal Balance.
(b) Characteristics. The Contracts have the following characteristics
---------------
as of the Cut-Off Date: (i) Contracts representing approximately [___]% the
Contracts by remaining principal balance are attributable to loans for purchases
of new Manufactured Homes, and approximately [___]% of the Contracts by
remaining principal balance are attributable to loans for purchases of used
Manufactured Homes; (ii) not more than approximately [___]% of the Contracts by
remaining principal balance as of the Cut-Off Date are secured by Manufactured
Homes located in any one state, not more than 1.00% of the Contracts by
remaining principal balance are secured by Manufactured Homes located in an area
with the same zip code, not more than 1.00% of the Contracts by remaining
principal balance are secured by Manufactured Homes located in the same
manufactured housing park; (iii) no Contract has a remaining maturity of more
than 360 months; (iv) no Contract was originated before [______]; (v) the final
scheduled payment date on the Contract with the latest maturity is in [_______];
and (vi) approximately [___]% by aggregate of the principal balances of the
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 Servicer
-------------
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.
(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 Insurer in selecting the Contracts.
Section 3.04 Representations and Warranties Regarding the Contracts.
------------------------------------------------------
The Contract Seller represents and warrants that:
(a) Possession. Immediately prior to the Closing Date, the Servicer
----------
will have possession of each Contract and the related Contract File or Land Home
Contract File, as applicable (except for any certificate of title or Mortgage
that has not yet been returned from the appropriate public recording office).
There are and there will be no custodial agreements in
-27-
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 Purchaser as contemplated by this Agreement are not
subject to the bulk transfer or any similar statutory provisions in effect in
any applicable jurisdiction.
Section 3.05 Repurchases of Contracts or Substitution of Contracts for
---------------------------------------------------------
Breach of Representations and Warranties.
----------------------------------------
(a) The Contract Seller shall either (i) repurchase a Contract sold
by it to the Purchaser at such Contract's Repurchase Price, or (ii) if the
Contract Seller is able to satisfy the conditions of Section 3.05(b), remove
such Contract from the Trust Fund and substitute therefor an Eligible Substitute
Contract in accordance with and subject to the limitations of Section 3.05(b),
in each case within 90 days after the Contract Seller becomes aware, or receives
written notice from the Purchaser or the Indenture 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 Purchaser's or
Trust Fund's interest in such Contract, unless such breach has been cured;
provided, however, that with respect to any Contract incorrectly described on
-------- -------
the Contract Schedule with respect to remaining principal balance, which the
Contract Seller would otherwise be required to repurchase pursuant to this
Section 3.05, the Contract Seller may, in lieu of repurchasing such Contract,
deposit in the Note Account not later than one Business Day after such
Determination Date cash in an amount sufficient to cure such deficiency or
discrepancy; and further provided, that with respect to a breach of a
------- --------
representation or warranty relating to the Contracts in the aggregate and not to
any particular Contract, the Contract Seller may select Contracts to repurchase
or substitute for such that, had such Contracts not been included as part of the
Contract Pool and after giving effect to such substitution, if any, there would
have been no breach of such representation or warranty; provided, however, that
-------- -------
the Contract Seller shall defend and indemnify the Purchaser, the Trust Fund and
the Noteholders 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) or (h) 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 Note Account.
Notwithstanding the foregoing, the Contract Seller shall not deposit cash
into the Note 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 86OF(a) (1) of the Code or Section 86OG(d) of the Code. Any such deposit
shall not be invested.
-28-
The Purchaser 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. The
Purchaser 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 Purchaser shall delete such Contract from the Contract Schedule.
For reasons of administrative convenience in servicing of the Contracts,
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 Purchaser or the Indenture Trustee does not have a
perfected first-priority security interest in such related Manufactured Home, or
(ii) (A) the Servicer has received written advice of counsel to the effect that
a court of competent jurisdiction has held that, solely because of a
substantially similar failure on the part of a pledgor or assignor of
manufactured housing contracts (who has perfected the assignment or pledge of
such contracts), a perfected first-priority security interest was not created in
favor of the pledgee or assignee (as the case may be) in a related manufactured
home which is located in such jurisdiction and which is subject to the same laws
regarding the perfection of security interests therein as apply to Manufactured
Homes located in such jurisdiction, and (B) the Servicer 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 Servicer on a nondiscriminatory basis from among
the counsel used by the Servicer in its general business in the jurisdiction in
question. The Servicer shall have no obligation on an ongoing basis to seek any
advice with respect to the matters described in clause (ii) above. However, the
Servicer 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 Servicer informs the Servicer 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 Purchaser and the
---------
Indenture 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
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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 Purchaser
and the Indenture Trustee evidence of filing with the appropriate office in
California of a UCC-1 financing statement executed by the Contract Seller as
debtor and naming the Purchaser as secured party and listing such Contract as
collateral; and
(iii) 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 Note Account the amount of such
excess (which amount shall be deemed a Principal Prepayment on such Contract)
and shall have included in the Officer's Certificate required by clause (i)
above a certification that such deposit has been made.
Upon satisfaction of such conditions, the Indenture 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 Indenture 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 Indenture 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.
Section 3.06 Survival of Representations and Warranties.
------------------------------------------
(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 Purchaser and by the Purchaser to the Indenture Trustee
and shall inure to the benefit of the Purchaser and the Indenture 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 Indenture Trustee, the
Purchaser 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
Purchaser or the Indenture 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
Noteholders by their acceptance of the Notes 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
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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 Noteholders and the
Purchaser or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge and all other
comparable instruments, with respect to the Contracts, with respect to the
Manufactured Homes and with respect to the Mortgaged Property. The Purchaser and
the Indenture 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 Purchaser and the
Indenture 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 Purchaser or the Indenture 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
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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 Purchaser or the Trust Fund, 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 Purchaser and the
Indenture Trustee (if the Indenture 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 Purchaser and the Indenture Trustee (if
the Indenture 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 Note Account.
Section 4.04 Inspection.
----------
(a) At all times during the term hereof, the Servicer shall afford
the Purchaser or the Indenture 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 Purchaser or the Indenture Trustee or any of its authorized
agents. The examination referred to in this Section 4.04 will be conducted in a
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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 Purchaser or the Indenture Trustee may make,
the Purchaser or the Indenture 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 Note Owners.
Section 4.05 Establishment of and Deposits in Note Account.
---------------------------------------------
The Servicer shall deposit in the Note Account as promptly as practicable
(but not later than the close of business of the second Business Day) following
receipt thereof:
(a) All amounts received from Obligors with respect to principal of
and interest on the Contracts (including Excess Contract Payments);
(b) All Net Liquidation Proceeds;
(c) All amounts required to be deposited by the Contract Seller
pursuant to Sections 3.05(a) and (b);
(d) All Monthly Advances pursuant to Section 5.01;
(e) Any proceeds of Hazard Insurance Policies pursuant to Section
4.10 and any amounts in respect of indemnification pursuant to Section 7.03;
(f) All amounts required to be withdrawn from an REO Account and
deposited in the Note Account in accordance with Section 4.17; and
(g) All Deficiency Amounts.
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 Noteholders, the Purchaser and the Indenture
Trustee, the Servicer shall advance, but only to the extent that the Servicer,
in its sole judgment, deems such advance
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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, if possible, or as agent for the
Indenture Trustee or the Purchaser. 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
Indenture Trustee on behalf of the Noteholders 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 Noteholders. If there
has been a recovery of attorneys' fees in favor of the Servicer, the Indenture
Trustee or the Purchaser 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 Purchaser's and
the Indenture 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 Note 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
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any Contract or any material modification of a Contract other than in connection
with a default or an imminent default on such Contract.
Section 4.08 Maintenance of Hazard Insurance Policies.
----------------------------------------
(a) Except as otherwise provided in subsection (b) of this Section
4.08, the Servicer shall cause to be maintained with respect to each Contract
one or more Hazard Insurance Policies which provide, at a minimum, the same
coverage as a standard form fire and extended coverage insurance policy that is
customary for manufactured housing, issued by a company authorized to issue such
policies in the state in which the Manufactured Home is located, and in an
amount which is not less than the maximum insurable value of such Manufactured
Home or the principal balance of the related Contract, whichever is less;
provided that such Hazard Insurance Policies may provide for customary
--------
deductible amounts, and further provided that the amount of coverage provided by
------- --------
each Hazard Insurance Policy shall be sufficient to avoid the application of any
co-insurance clause contained therein. If a Manufactured Home is located within
a federally designated special flood hazard area, the Servicer shall, to the
extent required by applicable law or regulation, also cause flood insurance to
be maintained, which coverage shall be at least equal to the minimum amount
specified in the preceding sentence or such lesser amount as may be available
under the federal flood insurance program. Each Hazard Insurance Policy caused
to be maintained by the Servicer shall contain a standard loss payee clause in
favor of the Servicer and its successors and assigns. If any Obligor is in
default in the payment of premiums on its Hazard Insurance Policy or Policies,
the Servicer shall advance such premiums out of its own funds (but only to the
extent that it deems, in its sole judgment, that such advances are recoverable),
and may add separately such premium to the Obligor's obligation as provided by
the Contract, but may not add such premium to the remaining principal balance of
the Contract for purposes of this Agreement. If the Obligor does not reimburse
the Servicer for payment of such premiums and the related Contract is liquidated
after a default, the Servicer shall be reimbursed for its payment of such
premiums out of the related Liquidation Proceeds.
(b) The Servicer may, in lieu of causing individual Hazard Insurance
Policies to be maintained with respect to each Manufactured Home pursuant to
subsection (a) of this Section 4.08, 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 4.08
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 Note 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 4.08.
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(c) If the Servicer shall have repossessed a Manufactured Home on
behalf of the Purchaser or the Indenture 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, except that the Servicer shall be responsible for
depositing any deductible amount with respect to all claims under individual
Hazard Insurance Policies, 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 Purchaser or 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
Noteholders, 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 Indenture Trustee, the Purchaser or
the Noteholders 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 4.09 Fidelity Bond and Errors and Omissions Insurance.
------------------------------------------------
The Servicer shall maintain, at its own expense, a blanket fidelity bond
and an errors and omissions insurance policy, with broad coverage with
responsible companies acceptable to FNMA and FHLMC, on all officers, employees
or other persons acting in any capacity with regard to the Contracts to handle
funds, money, documents and papers relating to the Contracts. Any such fidelity
bond and errors and omissions insurance shall protect and insure the Servicer
against losses, including forgery, theft, embezzlement, fraud, errors and
omissions and negligent acts of such persons. No provision of this Section 4.09
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
Purchaser and the Indenture 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 Purchaser and the
Indenture Trustee.
Section 4.10 Collections under Hazard Insurance Policies, Consent to
-------------------------------------------------------
Transfers of Manufactured Homes, Assumption Agreements.
------------------------------------------------------
(a) In connection with its activities as administrator and Servicer
of the Contracts, the Servicer agrees to present, on behalf of itself, the
Indenture Trustee and the Purchaser, 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
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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 Note 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 4.10(b) or Section 4.07(d), upon the closing of such
conveyance, the Servicer shall cause the originals of the assumption agreement,
the release (if any), or the modification or supplement to the Contract to be
deposited with the Contract File or the Land Home Contract File, as applicable,
for such Contract. Any fee collected by the Servicer for entering into an
assumption or substitution of liability agreement with respect to such Contract
will be retained by the Servicer as additional servicing compensation.
Section 4.11 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. 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 Purchaser and the
Noteholders. If the Servicer has actual knowledge that a Mortgaged Property is
affected by hazardous waste, then the Servicer shall not cause the Purchaser or
the Trust Fund 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
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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 4.12 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.
Section 4.13 Purchaser to Cooperate.
----------------------
(a) Upon payment in full of any Contract, the Servicer will notify
the Purchaser and the Indenture 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 Note
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
Note Account.
(b) From time to time as appropriate for servicing and foreclosure in
connection with any Land Home Contract, the Indenture Trustee shall, upon
written request of a Servicing Officer and delivery to the Indenture 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 Indenture 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 Indenture Trustee.
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(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 Indenture Trustee, or
any person acting on behalf of the Indenture Trustee, when its need by the
Servicer has ceased unless the Contract shall be liquidated, repurchased or
replaced as described in Section 3.05.
(d) Upon request of a Servicing Officer, the Purchaser 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 4.14 Servicing and Other Compensation.
--------------------------------
The Servicer, as compensation for its activities hereunder including the
payment of fees and expenses of the Indenture Trustee pursuant to the Indenture,
shall be entitled to receive on each Distribution Date the Monthly Servicing Fee
and Repossession Profits pursuant to Section 5.02.
Additional servicing compensation in the form of Servicer Deficiency
Amounts, Late Payment Fees or Extension Fees and any transfer of equity or
assumption fees shall be retained by the Servicer. The Servicer shall not be
reimbursed for its costs and expenses in servicing the Contracts except as
otherwise expressly provided herein.
No transfer, sale, pledge or other disposition of the Servicer's right to
receive all or any portion of the Monthly Servicing Fee shall be made, and any
such attempted transfer, sale, pledge or other disposition shall be void, unless
such transfer is made to a successor Servicer in connection with the assumption
by such successor Servicer of the duties hereunder pursuant to Section 6.07 and
all (and not a portion) of the Monthly Servicing Fee is transferred to such
successor Servicer.
Section 4.15 Custody of Contracts.
--------------------
(a) Subject to the terms and conditions of this Section 4.15, the
Servicer agrees to act as custodian of the Contract Files (other than the Land
Home Contract Files) for the benefit of the Purchaser and the Indenture Trustee.
The Noteholders by their acceptance of the Notes, 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 Indenture Trustee by ten days'
prior written notice. The Servicer may temporarily move individual Contract
Files, Land Home Contract Files or, in each case, any portion thereof without
notice as necessary to conduct collection and other servicing activities in
accordance with its customary practices and procedures.
(c) As custodian, the Servicer shall have and perform the following
powers and duties:
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(i) hold the Contract Files (other than the Land Home Contract
Files) on behalf of the Purchaser, the Indenture Trustee and the Noteholders,
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 Purchaser, the Indenture Trustee
and the Noteholders.
(d) In performing its duties under this Section 4.15, 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 Indenture Trustee and the Purchaser
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
beneficial ownership interests in the Contracts, or the Contract Files. The
Servicer agrees to indemnify Noteholders, the Indenture Trustee and the
Purchaser 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 Noteholders, the Indenture Trustee and the Purchaser as the
result of any act or omission by the Servicer relating to the maintenance and
custody of the Contract Files; provided, however, that the Servicer will not be
-------- -------
liable for any portion of any such amount resulting from the negligence or
willful misconduct of any other Person.
(e) Not later than 60 days from the Closing Date, the Contract Seller
shall deliver, or cause to be delivered, to the Indenture Trustee the following:
(i) the Land Home Contract Files;
(ii) the original Land Home Contracts endorsed as provided in
Section 3.02(x) (which endorsement may be manual or facsimile signature) on
behalf of the Contract Seller; and
(iii) Assignments from the Contract Seller to the Purchaser and
from the Purchaser to the Indenture Trustee, which Assignments shall be in form
and substance for recording, but shall not be recorded except as required by
Section 4.20 below;
Notwithstanding anything to the contrary contained in this Section 4.15(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 Purchaser 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.
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Within 90 days following the Closing Date, the Indenture 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 4.15(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
Indenture Trustee may rely on the purported due execution and genuineness of any
signature thereon. If within such 90 day period the Indenture 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 4.15(e), a "defect"), the Indenture
Trustee shall promptly upon the conclusion of its review notify the Servicer.
The Servicer shall have a period of 90 days from receipt of such notice within
which to correct or cure any such defect after the Servicer has been notified of
such. If the Servicer 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 Indenture 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
Indenture Trustee of the recorded Assignment, such recorded Assignment shall
become part of the Land Home Contract File.
(f) Custodial Arrangements. The Trustee may appoint a custodian who
----------------------
is acceptable to the Servicer and the Contract Seller and who, upon execution of
a custodial agreement, shall maintain possession of the Land Home Contract
Files, together with assignments in recordable form, or such part of them as the
Trustee shall direct, as agent of the Trustee pursuant to the terms of such
custodial agreement. The appointment of such custodian shall not relieve the
Trustee of its obligations hereunder. The Trustee will notify the Rating
Agencies upon the appointment of any custodian.
The Trustee shall keep the Servicer apprised at all times after the
Closing Date of the location of the Land Home Contract Files. The Trustee shall
take all steps that are reasonably necessary or appropriate in order to
facilitate the Servicer's access to the Land Home Contract Files during normal
business hours of the Trustee or any custodian and shall cooperate fully with
the Servicer in securing such access.
Section 4.16 Management of REO Property.
--------------------------
(a) If the Indenture Trustee acquires any REO Property pursuant to
[Section 4.16], 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 Noteholders, and the Purchaser 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:
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(i) all insurance premiums due and payable in respect to such
REO Property;
(ii) all real estate taxes and assessments in respect to such
REO Property that may result in the imposition of a lien thereon; and
(iii) all costs and expenses necessary to maintain such REO
Property.
To the extent that amounts on deposit in the REO Account in respect of any
REO Property are insufficient for the purposes set forth in (i)-(iii) above with
respect to such REO Property, the Servicer shall advance from its own funds such
amount as is necessary for such purposes if, but only if, the Servicer would
make such advances if the Servicer owned such REO Property and if in the
Servicer's judgment, the payment of such amounts will be recoverable from the
operation or sale of such REO Property.
(b) Notwithstanding the foregoing, the Servicer shall not:
(i) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon, and then
only if more than ten percent of the construction of such building or other
improvement was completed before default on the related Contract became
imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(ii) directly operate, or allow any other Person to directly
operate, any REO Property on any date more than 90 days after its date of
acquisition.
(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 4.16(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 Purchaser and to the Indenture Trustee on behalf of the Noteholders 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.
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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 4.16.
(d) Subject to Section 4.16(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 4.16;
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.
Section 4.17 Reports to the Securities and Exchange Commission.
-------------------------------------------------
The Servicer shall use reasonable efforts to assist the Contract Seller and
the Purchaser 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, and the Purchaser 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 4.18 Annual Statement as to Compliance.
---------------------------------
The Servicer will deliver to the Contract Seller, the Purchaser and each
Rating Agency on or before [_____]of each year, commencing in 2001, 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 4.19 Annual Independent Public Accountants' Servicing Report.
-------------------------------------------------------
On or before [_____] of each year, commencing in 2001, 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 Purchaser the Indenture Trustee 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
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such pooling and servicing agreements, as the case may be, except for such
exceptions as such firm believes to be immaterial and such other exceptions or
errors in records that may be set forth in such statement. For purposes of such
statement, such firm may assume conclusively that all indentures among the
Contract Seller, the Servicer, the Purchaser and an indenture trustee relating
to notes or pooling agreements among the Contract Seller, the Servicer and a
trustee relating to certificates evidencing an interest in actuarial and/or
simple interest manufactured housing contracts are substantially similar to one
another, except for any such pooling and servicing agreement which by its terms
specifically states otherwise.
Section 4.20 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 shall promptly provide notice to the Purchaser
and the Indenture Trustee that GreenPoint Bank no longer has such rating. If at
any time during the term of this Agreement the Indenture 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 Indenture Trustee otherwise becomes aware
that the Contract Seller is no longer assigned such rating, the Indenture
Trustee, at the Contract Seller's expense, shall file promptly in the
appropriate recording offices the assignments to the Indenture Trustee of each
Mortgage securing a Land Home Contract sold by the Contract Seller to the
Purchaser and pledged 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 Purchaser and the Indenture Trustee that
GreenPoint Bank no longer has such ownership interest. If at any time during the
term of this Agreement the Indenture 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 Indenture Trustee
otherwise becomes aware that GreenPoint Bank no longer has such ownership
interest, the Indenture Trustee, at the Contract Seller's expense, shall file
promptly in the appropriate recording offices the assignments to the Indenture
Trustee on behalf of the Trust Fund of each Mortgage securing a Land Home
Contract.
Section 4.21 Notice of Rating Change.
-----------------------
In the event that Notes are not rated in the highest rating category by the
Rating Agencies on the Closing Date, the Servicer shall give written notice to
the Auction Agent of the initial ratings on the Notes 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 Notes at any time, the Servicer shall give written notice
to the Auction Agent or if the Notes are no longer maintained in Book-Entry Form
by the Depository, to the Indenture 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 Indenture Trustee, as
applicable, shall
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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
Indenture Trustee no later than the close of business on such Business Day.
ARTICLE V
MONTHLY ADVANCES AND MONTHLY REPORTS
Section 5.01 Monthly Advances by the Servicer.
--------------------------------
(a) By the close of business on the day prior to each Distribution
Date, the Servicer shall (i) cause to be deposited, out of its own funds, in the
Note Account the Monthly Advance for the related Distribution Date, (ii) direct
the Indenture Trustee to apply all or a portion of the Excess Contract Payments
in the Note Account to make such Monthly Advance, or (iii) do any combination of
clauses (i) and (ii) to make such Monthly Advance. To the extent that an Excess
Contract Payment (or any portion thereof) that has been applied pursuant to
clause (ii) or (iii) is required for application 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 Note Account on the
immediately succeeding Due Date, and the amount so deposited will become part of
the Outstanding Amount Advanced.
(b) The Servicer shall reimburse itself for the Outstanding Amount
Advanced out of (i) collections of delinquent payments of principal and interest
on Contracts as to which the Servicer previously made a Monthly Advance, (ii)
available funds in the Note 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 Note Account for the amount of such
Nonrecoverable Advance for the next succeeding Distribution Date by withdrawing
such amount pursuant to Section 5.02(v), but not in excess of such Outstanding
Amount Advanced. If a Contract becomes a Liquidated Contract and at such time
there exists an Outstanding Amount Advanced, then the Servicer shall reimburse
itself out of funds in the Note 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 a Monthly Advance that the Servicer determines if made would
be a Nonrecoverable Advance.
Section 5.02 Permitted Withdrawals from the Note Account.
-------------------------------------------
The Servicer may, from time to time as provided herein, make withdrawals
from the Note Account of amounts deposited therein pursuant to Section 4.05 and
the Indenture that are attributable to the Contracts for the following purposes:
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(i) to pay to the Contract Seller with respect to each Contract
sold by it or property acquired in respect thereof that has been repurchased or
replaced pursuant to Section 3.05, all amounts received thereon that are
specified in such Section to be property of the Contract Seller;
(ii) to reimburse itself for the payment of taxes or charges out
of Liquidation Proceeds (to the extent not previously retained from such
Liquidation Proceeds prior to their deposit) or out of payments expressly made
by the related Obligor to reimburse the Servicer for such taxes or charges, as
permitted by Section 4.06;
(iii) to pay to itself the Senior 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 Note 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, in each case, in accordance
with Section 5.01(c);
(vi) after the Note Balance has been reduced to zero, all
amounts owing to the Special Account have been deposited to reimburse the
Servicer for expenses incurred and reimbursable to the Servicer pursuant to
Section 6.05; and
(vii) to withdraw any amount deposited in the Note 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).
Since, in connection with withdrawals pursuant to clauses (i), (ii) and
(iv) of this Section 5.02, 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 Note Account pursuant to such
clauses.
Section 5.03 Monthly Reports.
---------------
At least two Business Days prior to each Distribution Date, the Servicer
shall cause the Indenture Trustee, the Insurer, the Rating Agencies and the
Purchaser to receive a Monthly Report, which report shall include the following
information with respect to the immediately following Distribution Date:
(a) the Distribution Amount for such Distribution Date;
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(b) the amount of principal to be distributed to the Noteholders,
separately stating the contribution thereto from each of the amounts specified
in clauses (a) through (f), inclusive, of the definition of Total Regular
Principal Amount and from the amount of clause (b) of the definition of Formula
Principal Distribution Amount;
(c) the amount of interest to be distributed the Noteholders on such
Distribution Date;
(d) the remaining Note 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 Pass-Through Rate and the Holdover Amount;
(f) the existence of any Servicer Termination Event;
(g) the number of and aggregate remaining principal balance of
Contracts with payments delinquent 31 to 59, 60 to 89, and 90 or more days,
respectively;
(h) 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;
(i) the aggregate principal balances of all Contracts that are not
Liquidated Contracts and in respect of which the related Manufactured Homes have
been repossessed or foreclosed upon;
(j) the Enhancement Payment, if any, on such Distribution Date;
(k) the amount of any Monthly Advance and the Outstanding Amount
Advanced with respect to such Distribution Date;
(l) the amounts, if any, deposited into the Special Account for such
Distribution Date;
(m) (i) the Net Weighted Average Contract Rate for the Collection
Period immediately preceding the month of such Distribution Date and (ii) the
Net Weighted Average Contract Rate for the Collection Period occurring in the
month in which such Distribution Date occurs;
(n) the number of Manufactured Homes currently held by the Servicer
due to repossessions and the aggregate principal balance of the related
defaulted Contracts;
(o) the Pool Principal Balance, expressed as a percentage of the Cut-
Off Date Pool Principal Balance;
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(p) the aggregate of the Deficiency Amounts and Servicer Deficiency
Amounts received for the preceding Collection Period;
(q) any additional items required to be set forth in the Monthly
Report pursuant to the Insurance Agreement;
(r) amounts paid to the Noteholders on such Distribution Date in
respect of the Net Funds Cap Carryover Amount;
(s) the Cumulative Realized Losses and the Current Realized Loss
Ratio, each as of such Distribution Date; and
Copies of all Monthly Reports shall be provided by the Servicer to each
Rating Agency. The Indenture Trustee 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 Indenture Trustee not later than three Business
Days next preceding a Distribution Date if it cannot provide the Indenture
Trustee with a Monthly Report for such Distribution Date.
Section 5.04 Certificate of Servicing Officer.
--------------------------------
Each Monthly Report pursuant to Section 5.03 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 5.05 Other Data.
----------
In addition, the Servicer, at the request of the Purchaser, the Indenture
Trustee or the Note Administrator, shall furnish the to the Purchaser and/or the
Indenture Trustee such underlying data as may reasonably be requested.
ARTICLE VI
THE CONTRACT SELLER AND THE SERVICER
Section 6.01 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 Purchaser,
the Indenture Trustee, the Note Administrator or the Noteholders under or as a
result of this Agreement and the transactions contemplated hereby and, to the
maximum extent permitted and valid under mandatory provisions of law, the
Contract Seller, the Purchaser, the Indenture Trustee, the Note Administrator
and the Noteholders expressly disclaim such assumption.
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Section 6.02 Servicer's Indemnities.
----------------------
The Servicer shall defend and indemnify the Trust Fund, the Indenture
Trustee, the Note Administrator, the Purchaser, the Contract Seller and the
Noteholders 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 6.02 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 6.03 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
Indenture Trustee or the Purchaser from the Servicer pursuant to this Article
VII shall be deposited in the Note Account pursuant to Section 4.05. If the
Servicer has made any indemnity payments to the Indenture Trustee or the
Purchaser pursuant to this Article VII and the Indenture Trustee or the
Purchaser thereafter collects any of such amounts from others, the Indenture
Trustee or the Purchaser will repay such amounts collected to the Servicer,
together with any interest collected thereon.
Section 6.04 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
Notes 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 6.07 with respect to the
qualifications of a successor to the Servicer. The Contract Seller and the
Servicer shall promptly notify each Rating Agency and the Insurer of any such
merger to which it is a party.
The conversion of GreenPoint's organizational structure from a Delaware
limited liability company to a corporation, partnership or other such 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.
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Section 6.05 Limitation on Liability of the Contract Seller, the Servicer
------------------------------------------------------------
and Others.
----------
Neither the Contract Seller, the Servicer nor any of their members,
managers, officers, employees or agents shall be under any liability to the
Purchaser or the Noteholders 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,
managers, 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 Note Account, and the Servicer shall be
entitled to be reimbursed therefor out of the Note Account as provided by
Section 5.02.
Section 6.06 Assignment by Servicer.
----------------------
Notwithstanding any provision to the contrary in this Agreement without the
consent of the Purchaser, the Servicer may, with the consent of the Insurer
(provided that if an Insurer Default has occurred and is continuing, no consent
of the Insurer needs to be obtained), which consent shall not be unreasonably
withheld, assign its rights and delegate its duties and obligations under this
Agreement; provided that the Person shall execute and deliver to the Indenture
--------
Trustee and the Purchaser an agreement, in form and substance reasonably
satisfactory to the Indenture Trustee and the Purchaser, 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 the
------- --------
Notes 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 6.07 Successor to the Servicer.
-------------------------
In connection with the termination of the Servicer's responsibilities and
duties under this Agreement pursuant to Section 8.01 and the Indenture, the
Indenture 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 Indenture Trustee pursuant to Section 6.08
hereof), or (ii) with the consent of the Contract Seller, the Purchaser and the
Insurer (provided
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that if an Insurer Default has occurred and is continuing, no consent of the
Insurer needs to be obtained), which consent shall not be unreasonably withheld,
appoint a successor. In connection with any appointment of a successor Servicer,
the Indenture 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 Noteholders
and notice to each Rating Agency. If the Servicer's duties, responsibilities and
liabilities under this Agreement should be terminated pursuant to Section 6.06
or 7.01, 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
Indenture 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 6.06 or removal
of Servicer pursuant to Section 7.01 shall not become effective until a
successor shall be appointed pursuant to this Section 6.07 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 7.01 or Section 6.06 shall bear
all costs of a transfer of servicing therefrom, including but not limited to
those of the Indenture 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 Indenture 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 Notes. Any assignment by or termination of the Servicer pursuant to
Section 6.06 or 7.01 or the termination of this Agreement pursuant to Section
8.01 and the Indenture shall not affect any claims that the Purchaser 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 Note
Account and REO Account and all Contract Files, Land Home Contract Files and
related documents and statements held by it hereunder and the Servicer shall
account for all funds and shall execute and deliver such instruments and do such
other things as reasonably may be required to more fully and definitely vest and
confirm in the successor all such rights, powers, duties, responsibilities,
obligations and liabilities of the Servicer. Without limitation, the Indenture
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 Notes 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 Indenture Trustee
shall notify in writing the Noteholders and each Rating Agency of such
appointment.
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Section 6.08 Servicer to Pay Fees and Expenses of Purchaser.
----------------------------------------------
The Servicer covenants and agrees to pay, from its own funds, to the
Indenture Trustee from time to time, and the Indenture Trustee shall 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 created under the Indenture and in
the exercise and performance of any of the powers and duties hereunder of the
Indenture Trustee, and the Servicer will pay (out of its own funds) or reimburse
the Indenture Trustee, to the extent requested by the Indenture Trustee, for all
reasonable expenses, disbursements and advances incurred or made by the
Indenture Trustee in accordance with any of the provisions of this Agreement and
the Indenture, 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 Indenture Trustee in connection with the
appointment of an office or agency pursuant to the Indenture, 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
Indenture Trustee for, and to hold the Indenture Trustee harmless against, any
loss, liability or expense incurred without negligence or bad faith on the part
of the Indenture Trustee arising out of or in connection with the acceptance or
administration of this trust and its duties hereunder or under the Indenture,
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 6.08 shall be for the benefit of
the Indenture Trustee in such capacity hereunder and under the Indenture, and
shall survive the termination of this Agreement and/or the Indenture.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.01 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 Indenture 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 Indenture Trustee or to
the Servicer and the Indenture Trustee by the Holders of Notes 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 Indenture Trustee or to the Servicer, the
Indenture Trustee and the Contract Seller by the Holders of Notes evidencing
Fractional Interests aggregating not less than 25%; or
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(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 Indenture Trustee may with the consent of the
Insurer (which consent shall not be unreasonably withheld; provided that if an
Insurer Default has occurred and is continuing, no consent of the Insurer needs
to be obtained), and the Purchaser shall at the written direction of the Insurer
so long as no Insurer Default has occurred and is continuing, terminate all the
rights and obligations of the Servicer under this Agreement and with respect to
the Contracts and the proceeds thereof, except any responsibility for its acts
or omissions during its tenure as Servicer hereunder. The Indenture Trustee
shall send a copy of a notice of any Event of Default to each Rating Agency, the
Insurer 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 6.07. Upon the occurrence of an
Event of Default which shall not have been remedied, the Indenture Trustee may
also pursue whatever rights it may have at law or in equity to damages,
including injunctive relief and specific performance. The Indenture 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
Noteholders or the Insurer unless such Noteholders or the Insurer have offered
to the Indenture Trustee reasonable security or indemnity against the costs,
expenses and liabilities which the Indenture Trustee may incur.
Section 7.02 Waiver of Defaults.
------------------
The Insurer so long as no Insurer Default has occurred and is continuing or
if an Insurer Default has occurred and is continuing, Holders of Notes
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 Purchaser for distribution on any of the Notes may be waived only by the
affected Noteholders. 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
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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 7.03 Notification to Noteholders.
---------------------------
(a) Upon any such termination pursuant to Section 7.01 or the
Indenture, the Indenture Trustee shall give prompt written notice thereof to the
Purchaser and the Contract Seller.
(b) Within 60 days after the occurrence of any Event of Default, the
Indenture Trustee shall transmit by mail to the Purchaser and the Contract
Seller notice of each such Event of Default hereunder known to the Indenture
Trustee, unless such Event of Default shall have been cured or waived.
Section 7.04 Effect of Transfer.
------------------
(a) After a transfer of servicing duties to a successor Servicer
pursuant to Section 6.04, 6.06, 6.07, 7.01 or the Indenture, the Indenture
Trustee or the successor Servicer may notify Obligors to make payments that are
due under the Contracts after the effective date of the transfer of servicing
duties directly to the successor Servicer.
(b) After the transfer of servicing duties to a successor Servicer
pursuant to Section 6.04, 6.06, 6.07, 7.01 or the Indenture, 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 6.07, 7.01 or the Indenture 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), other than those
relating to the management, administration, servicing or collection of the
Contracts.
Section 7.05 Transfer of the Account.
-----------------------
Notwithstanding the provisions of Section 7.01 or the Indenture, if the
Note 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 Indenture 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, with a depository institution other than the
Servicer or an Affiliate of the Servicer, and shall promptly transfer all funds
in the Note Account to such new Note Account, which shall thereafter be deemed
the Note Account for the purposes hereof.
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ARTICLE VIII
TERMINATION
Section 8.01 Termination.
-----------
(a) The respective obligations and responsibilities of the Contract
Seller, the Servicer (except as to Section 6.08) and the Purchaser shall
terminate upon the termination of the Indenture and the final payment or other
liquidation (or any advance with respect thereto) of the last Contract or the
disposition of all property acquired under repossession of any Contract and the
remittance of all funds due hereunder.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01 Amendment.
---------
This Agreement may be amended from time to time by the Contract Seller, the
Servicer and the Purchaser, with the consent of the Indenture Trustee and the
Insurer, which consent shall not be unreasonably withheld (provided that if an
Insurer Default has occurred and is continuing, no such consent needs to be
obtained) without the consent of any of the Noteholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions herein, (iii) to add to
the duties or obligations of the Servicer, (iv) to obtain a rating from a
nationally recognized rating agency or to maintain or improve the ratings the
Notes by each Rating Agency (it being understood that after obtaining ratings
for the Notes from Moody's and S&P, none of the Purchaser, the Contract Seller
or the Servicer is obligated to obtain, maintain or improve any rating assigned
to the Notes) 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 Noteholder.
This Agreement may also be amended from time to time by the Contract
Seller, the Servicer and the Purchaser with the consent of the Indenture Trustee
and the Insurer, which consent shall not be unreasonably withheld (provided that
if an Insurer Default has occurred and is continuing, no such consent needs to
be obtained), and with the consent of the Holders of a Majority In Interest of
the Notes 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 Notes; 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 Note without the
consent of the Holder of such Note, (ii) adversely affect in any material
respect the interests of the Holders of any Notes in a manner other than as
described in (i), without the consent of the Holders of Notes evidencing
Percentage Interests aggregating 66% or (iii) reduce the aforesaid percentages
of Notes the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all such Notes then outstanding.
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Promptly after the execution of any amendment to this Agreement requiring
the consent of Noteholders, the Indenture Trustee shall furnish written
notification of the substance of such amendment to each Noteholder, the Insurer
and each Rating Agency.
It shall not be necessary for the consent of Noteholders under this Section
9.01 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 Noteholders shall be subject to such reasonable regulations as the
Indenture Trustee may prescribe.
Nothing in this Agreement shall require the Purchaser to enter into an
amendment without receiving an Opinion of Counsel, satisfactory to the
[Purchaser] 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 Noteholder or (B) the conclusion set
forth in the immediately preceding clause (A) is not required to be reached
pursuant to this Section 9.01.
Section 9.02 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 9.03 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 NOTEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 9.04 Calculations.
------------
Except as otherwise provided in this Agreement, all Pass-Through Rate,
interest rate and basis point calculations under this Agreement will be made
with respect to variable rate Notes on the basis of the actual number of days
elapsed during the related Interest Accrual Period and a 360-day year and with
respect to fixed rate Notes on the basis of a 360 day year and 12 thirty day
months, and will be carried out to at least three decimal places. Interest on
the Regular Notes with respect to a Distribution Date will accrue during the
related Interest Accrual Period.
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Section 9.05 Notices.
-------
(a) The Indenture Trustee shall use its best efforts to promptly
provide notice to each Rating Agency with respect to each of the following of
which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Servicer or the Indenture
Trustee and the appointment of any successor or any assignment of this Agreement
pursuant to Section 6.06;
4. The repurchase or substitution of Contracts pursuant to Section
3.05; and
5. 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 Noteholders described in [the Indenture];
2. Each annual statement as to compliance described in Section 4.18;
and
3. Each annual independent public accountants' servicing report
described in Section 4.19.
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
Insurer, the Indenture Trustee and the Purchaser 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 Purchaser, c/o GreenPoint Credit, LLC,
00000 Xxxxxx Xxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention: Manager,
Investor Servicing or such other address as the Purchaser may hereafter furnish
to the Contract Seller, the Insurer, the Indenture Trustee and the Servicer; (c)
in the case of the Insurer, [___] Insurance Corporation,
[__________________________] or such other address as the Insurer may hereafter
furnish to the Contract Seller, the Indenture Trustee, the Purchaser and the
Servicer, (d) in the case of the Rating Agencies, (i) Xxxxx'x Investors Service,
Inc., Manufactured Housing Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 and (ii) S&P, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (e) in
the case of the Auction Agent, [__________________], [ and (f) in the case of
the Market Agent, Xxxxxxx Xxxxx Barney Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: General Counsel], and Notices to Noteholders shall be
deemed given when mailed, first class postage prepaid, to their respective
addresses appearing in the Note Register.
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Section 9.06 Severability of Provisions.
--------------------------
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Notes or the rights of the Holders thereof.
Section 9.07 Assignment.
----------
Notwithstanding anything to the contrary contained herein, except as
provided pursuant to Sections 6.04 and 6.06, this Agreement may not be assigned
by the Servicer without the prior written consent of the Purchaser, the
Indenture Trustee and the Contract Seller.
Section 9.08 Inspection and Audit Rights.
---------------------------
The Servicer agrees that, on reasonable prior notice, it will permit any
representative of the Contract Seller or the Indenture 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 Indenture
Trustee and to discuss its affairs, finances and accounts relating to the
Contracts with its officers, employees and independent public accountants (and
by this provision the Servicer hereby authorizes such accountants to discuss
with such representative such affairs, finances and accounts), all at such
reasonable times and as often as may be reasonably requested. Any out-of-pocket
expense incident to the exercise by the Contract Seller or the Indenture Trustee
of any right under this Section 9.08 shall be borne by the party requesting such
inspection; all other such expenses shall be borne by the Servicer.
Section 9.09 Third Party Beneficiary
-----------------------
Each of the Insurer and the Indenture Trustee shall be a third party beneficiary
of this Agreement. The Insurer and the Indenture Trustee shall be entitled to
(i) bring a claim against the Contract Seller for its failure to perform its
obligations under this Agreement, (ii) proceed against the Servicer in
accordance with the provisions of Section 4.11, (iii) bring a claim against the
Servicer for any failure by the Servicer to make Monthly Advances as required
under Section 5.01, (iv) make any request in accordance with Section 5.05, (v)
act upon any rights granted in Section 9.08 or (vi) make any deposit or other
payment required under this Agreement.
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IN WITNESS WHEREOF, GreenPoint and the Purchaser have caused their names to
be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
GREENPOINT ASSET LLC,
as the Purchaser
By:_____________________________
Name:
Title:
GREENPOINT CREDIT, LLC,
as Contract Seller and Servicer
By:_____________________________
Name: Xxxxxxx X. Xxxx
Title: Vice President
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On March [ ], 2000 before me, _________________, Notary Public, personally
appeared Xxxxxxx X. Xxxx, proved to me on the basis of satisfactory evidence to
be the person whose name is subscribed to the within instrument and acknowledged
to me that he executed the same in his authorized capacity and that by his
signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
___________________
Notary Public
My Commission expires_________________
[Notarial Seal]
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On March [ ], 2000 before me, _________________, Notary Public, personally
appeared Xxxxxxx X. Xxxx, proved to me on the basis of satisfactory evidence to
be the person whose name is subscribed to the within instrument and acknowledged
to me that he executed the same in his authorized capacity and that by his
signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
______________________
Notary Public
My Commission expires________________
[Notarial Seal]
