Exhibit 4.1
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GREEN TREE FLOORPLAN FUNDING CORP.
Transferor
GREEN TREE FINANCIAL CORPORATION
Servicer
and
Norwest Bank Minnesota, National Association
Trustee
Green Tree Floorplan Receivables Master Trust
________________________________________
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 1995
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions................................................ 1-1
Section 1.2 Other Definitional Provisions.............................. 1-23
Section 1.3 Provisions Relating to Rating Agencies..................... 1-24
ARTICLE II
CONVEYANCE OF RECEIVABLES;
ISSUANCE OF CERTIFICATES
Section 2.1 Conveyance of Receivables.................................. 2-1
Section 2.2 Acceptance by Trustee...................................... 2-3
Section 2.3 Representations and Warranties of the Transferor........... 2-3
Section 2.4 Representations and Warranties of the Transferor
Relating to the Agreement and the Receivables.............. 2-5
Section 2.5 Covenants of the Transferor................................ 2-10
Section 2.6 Addition of Accounts....................................... 2-12
Section 2.7 Removal of Eligible Accounts............................... 2-15
Section 2.8 Removal of Ineligible Accounts............................. 2-16
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 3.1 Acceptance of Appointment and Other Matters
Relating to the Servicer................................... 3-1
Section 3.2 Servicing Compensation..................................... 3-2
Section 3.3 Representations and Warranties of the Servicer............. 3-3
Section 3.4 Reports and Records for the Trustee........................ 3-5
Section 3.5 Annual Servicer's Certificate.............................. 3-7
Section 3.6 Annual Independent Accountants' Servicing Report........... 3-7
Section 3.7 Tax Treatment.............................................. 3-8
Section 3.8 Notices to Green Tree...................................... 3-9
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ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 4.1 Rights of Certificateholders............................... 4-1
Section 4.2 Establishment of Accounts.................................. 4-1
Section 4.3 Collections and Allocations................................ 4-4
ARTICLE V
[ARTICLE V IS RESERVED AND SHALL BE SPECIFIED
IN ANY SUPPLEMENT WITH RESPECT TO ANY SERIES]
ARTICLE VI
THE CERTIFICATES
Section 6.1 The Certificates........................................... 6-1
Section 6.2 Authentication of Certificates............................. 6-1
Section 6.3 Registration of Transfer and Exchange of Certificates...... 6-2
Section 6.4 Mutilated, Destroyed, Lost or Stolen Certificates.......... 6-5
Section 6.5 Persons Deemed Owners...................................... 6-6
Section 6.6 Appointment of Paying Agent................................ 6-6
Section 6.7 Access to List of Certificateholders' Names and Addresses.. 6-7
Section 6.8 Authenticating Agent....................................... 6-8
Section 6.9 Tender of Exchangeable Transferor Certificate.............. 6-9
Section 6.10 Book-Entry Certificates.................................... 6-12
Section 6.11 Notices to Clearing Agency................................. 6-13
Section 6.12 Definitive Certificates.................................... 6-13
Section 6.13 Global Certificate; Euro-Certificate Exchange Date......... 6-14
Section 6.14 Meetings of Certificateholders............................. 6-14
ARTICLE VII
OTHER MATTERS RELATING TO THE TRANSFEROR
Section 7.1 Liability of the Transferor................................ 7-1
Section 7.2 Merger or Consolidation of, or Assumption
of the Obligations of, the Transferor...................... 7-1
Section 7.3 Limitation on Liability.................................... 7-2
Section 7.4 Liabilities................................................ 7-2
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ARTICLE VIII
OTHER MATTERS RELATING TO THE SERVICER
Section 8.1 Liability of the Servicer.................................. 8-1
Section 8.2 Merger or Consolidation of, or Assumption
of the Obligations of, the Servicer........................ 8-1
Section 8.3 Limitation on Liability of the Servicer and Others......... 8-1
Section 8.4 Servicer Indemnification of the Transferor,
the Trust and the Trustee.................................. 8-2
Section 8.5 The Servicer Not to Resign................................. 8-3
Section 8.6 Access to Certain Documentation and
Information Regarding the Receivables...................... 8-3
Section 8.7 Delegation of Duties....................................... 8-4
Section 8.8 Waiver of Servicing Fee.................................... 8-4
ARTICLE IX
PAY OUT EVENTS
Section 9.1 Pay Out Events.............................................. 9-1
Section 9.2 Additional Rights Upon the Occurrence of Certain Events..... 9-3
ARTICLE X
SERVICER DEFAULTS
Section 10.1 Servicer Defaults.......................................... 10-1
Section 10.2 Trustee to Act; Appointment of Successor................... 10-3
Section 10.3 Notification to Certificateholders......................... 10-5
Section 10.4 Waiver of Past Defaults.................................... 10-5
ARTICLE XI
THE TRUSTEE
Section 11.1 Duties of Trustee.......................................... 11-1
Section 11.2 Certain Matters Affecting the Trustee...................... 11-3
Section 11.3 Trustee Not Liable for Recitals in Certificates............ 11-4
Section 11.4 Trustee May Own Certificates............................... 11-5
Section 11.5 The Servicer to Pay Trustee's Fees and Expenses............ 11-5
Section 11.6 Eligibility Requirements for Trustee....................... 11-5
Section 11.7 Resignation or Removal of Trustee.......................... 11-6
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Section 11.8 Successor Trustee.......................................... 11-6
Section 11.9 Merger or Consolidation of Trustee......................... 11-7
Section 11.10 Appointment of Co-Trustee or Separate Trustee.............. 11-7
Section 11.11 Tax Returns................................................ 11-8
Section 11.12 Trustee May Enforce Claims Without
Possession of Certificates................................. 11-9
Section 11.13 Suits for Enforcement...................................... 11-9
Section 11.14 Rights of Certificateholders to Direct Trustee............. 11-9
Section 11.15 Representations and Warranties of Trustee.................. 11-10
Section 11.16 Maintenance of Office or Agency............................ 11-10
ARTICLE XII
TERMINATION
Section 12.1 Termination of Trust....................................... 12-1
Section 12.2 Optional Termination....................................... 12-2
Section 12.3 Final Payment with Respect to any Series................... 12-3
Section 12.4 Termination Rights of Holder of
Exchangeable Transferor Certificate........................ 12-4
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Amendment.................................................. 13-1
Section 13.2 Protection of Right, Title and Interest to Trust........... 13-2
Section 13.3 Limitation on Rights of Certificateholders................. 13-3
Section 13.4 Governing Law.............................................. 13-4
Section 13.5 Notices.................................................... 13-4
Section 13.6 Severability of Provisions................................. 13-5
Section 13.7 Assignment................................................. 13-5
Section 13.8 Certificates Non-Assessable and Fully Paid................. 13-5
Section 13.9 Further Assurances......................................... 13-5
Section 13.10 No Waiver; Cumulative Remedies............................. 13-6
Section 13.11 Counterparts............................................... 13-6
Section 13.12 Third-Party Beneficiaries.................................. 13-6
Section 13.13 Actions by Certificateholders.............................. 13-6
Section 13.14 Rule 144A Information...................................... 13-7
Section 13.15 Merger and Integration..................................... 13-7
Section 13.16 Headings................................................... 13-7
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EXHIBITS
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Exhibit A Form of Exchangeable Transferor Certificate
Exhibit B Form of Daily Report
Exhibit C Form of Settlement Statement
Exhibit D Form of Annual Servicer's Certificate
Exhibit E Forms of Opinion of Counsel
Exhibit F Form of Assignment of Receivables in Additional Accounts
Exhibit G Form of Reassignment of Receivables in Removed Accounts
Exhibit H Form of Agreed-Upon Procedures
Exhibit I Form of Reconveyance of Receivables by Trustee
SCHEDULES
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Schedule 1 List of Accounts
Schedule 2 Designation of Collection Account
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POOLING AND SERVICING AGREEMENT, dated as of December 1, 1995 by and among
GREEN TREE FLOORPLAN FUNDING CORP., a corporation organized and existing under
the laws of the State of Delaware, as Transferor, GREEN TREE FINANCIAL
CORPORATION, a corporation organized and existing under the laws of the State of
Delaware, as Servicer, and Norwest Bank Minnesota, a national banking
association, as Trustee.
In consideration of the mutual agreements herein contained, each party
agrees as follows for the benefit of the other parties and the
Certificateholders:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in this Agreement, the following
words and phrases shall have the following meanings:
"Account" shall mean each Initial Account and, from and after the related
Addition Date, each Additional Account. The term "Account" shall not apply to
any Removed Accounts reassigned or assigned to the Transferor or the Servicer in
accordance with the terms of this Agreement.
"Addition Date" shall have the meaning specified in Section 2.6(c).
"Addition Notice" shall have the meaning specified in Section 2.6(c).
"Additional Accounts" shall mean each individual revolving credit agreement
entered into with Green Tree or one of its subsidiaries by a Dealer to finance
such Dealer's inventory of consumer and commercial products, which account is
designated pursuant to Section 2.6(a) or (b) to be included as an Account and is
identified in the computer file or microfiche or written list delivered to the
Trustee by the Transferor pursuant to Sections 2.1 and 2.6(d).
"Additional Cut-off Date" shall mean, with respect to Additional Accounts,
the date specified in the Addition Notice delivered with respect to such
Additional Accounts pursuant to Section 2.6(c).
"Affiliate" means, with respect to a particular Person, any Person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person.
"Agent" shall mean, with respect to any Series, the Person so designated in
the related Supplement.
"Aggregate Invested Amount" shall mean, as of any date of determination,
the sum of the Invested Amounts of all Series of Certificates issued and
outstanding on such date of determination.
"Aggregate Investor Percentage" with respect to Principal Collections,
Interest Collections and Defaulted Receivables, as the case may be, shall mean,
as of any date of determination, the sum of such Investor Percentages of all
Series of Certificates issued and outstanding on such date of determination,
provided, however, that the Aggregate Investor Percentage shall not exceed 100%.
"Aggregate Principal Receivables" shall mean, for any day, the aggregate
amount of Principal Receivables at the end of such day.
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"Agreement" shall mean this Pooling and Servicing Agreement and all
amendments hereof and supplements hereto, including any Supplement.
"Applicants" shall have the meaning specified in Section 6.7.
"Appointment Day" shall have the meaning specified in subsection 9.2(a).
"Asset-Based Financing Agreement" shall mean an asset based lending
agreement entered into by Green Tree and a Dealer in connection with the Asset-
Based Business with such Dealer, as amended or modified from time to time.
"Asset-Based Lending Business" shall mean the asset-based revolving credit
facilities made by Green Tree generally to Dealers in order to finance their
production and inventory, and are secured by finished goods inventory, accounts
receivable, certain works in process, raw materials and component parts, as well
as other assets of the borrower.
"Asset-Based Receivable Overconcentration" on any Distribution Date shall
mean the excess of (a) the aggregate of all amounts of Principal Receivables in
Accounts for Asset-Based Receivables on the last day of the Monthly Period
immediately preceding such Distribution Date over (b) the Asset-Based Percentage
of the Principal Receivables on the last day of such immediately preceding
Monthly Period. Subject to adjustment as described below, the "Asset-Based
Percentage" will be 10% until the date six months after the Closing Date;
thereafter, once certain performance tests are met, 15% until the date one year
after the Closing Date; and thereafter, once certain performance tests are met,
20%. Notwithstanding the above, in the case of such Overconcentration, the
percentage in clause (b) may be increased by the Transferor, without the consent
of any Certificateholder, to a level acceptable to each Rating Agency without
any reduction or withdrawal of its rating of the Class A, Class B or Class C
Certificates (but which may involve an adjustment, upward or downward, of the
Class D Invested Amount).
"Asset-Based Receivables" shall mean extensions of credit generally to
manufacturers and distributors to finance their production and inventory, and
are secured by finished goods inventory, accounts receivable, certain work-in-
process, raw materials and component parts, as well as other assets of the
borrower.
"Assignment" shall have the meaning specified in Section 2.6(d).
"Authentication Agent" shall have the meaning specified in Section 6.8.
"Authorized Newspaper" shall mean a newspaper of general circulation in the
Borough of Manhattan, The City of New York printed in the English language and
customarily published on each Business Day, whether or not published on
Saturdays, Sundays and holidays.
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"Automatic Addition Condition" shall mean, with respect to the addition of
Accounts pursuant to Section 2.6(c), that, (i) during the calendar quarter in
which such addition occurs, the number of new Accounts for Dealers that are
financing products of the type already being financed by Green Tree does not
exceed 5% of the number of all Accounts at the end of the preceding calendar
quarter, (ii) during the twelve months ending at the beginning of such calendar
quarter, the number of such new Accounts does not exceed 20% of the number of
all Accounts at the beginning of such twelve month period, (iii) the average for
the three months preceding the month of such addition of the aggregate balance
of Receivables that have been delinquent for more than 30 days does not exceed
1.25% of the Pool Balance at the end of the month preceding the month of such
addition, and (iv) the annualized average for such three month period of the net
losses incurred in respect of the Receivables does not exceed 1.75% of the Pool
Balance at the end of the month preceding the month of such addition.
"Bearer Certificates" shall have the meaning specified in Section 6.1.
"Bearer Rules" shall mean the provisions of the Internal Revenue Code, in
effect from time to time, governing the treatment of bearer obligations,
including sections 163(f), 871, 881, 1441, 1442 and 4701, and any regulations
thereunder including, to the extent applicable to any Series, proposed or
temporary regulations of the Internal Revenue Service.
"Beneficiary" shall mean any of the Holders of the Investor Certificates
and any Enhancement Provider.
"Book-Entry Certificates" shall mean certificates evidencing a beneficial
interest in the Investor Certificates, ownership and transfers of which shall be
made through book entries by a Clearing Agency as described in Section 6.10;
provided, that after the occurrence of a condition whereupon book-entry
registration and transfer are no longer authorized and Definitive Certificates
are to be issued to the Certificate Owners, such certificates shall no longer be
"Book-Entry Certificates."
"Business Day" shall mean any day other than a Saturday, a Sunday or a day
on which banking institutions in New York, New York or Delaware (or, with
respect to any Series, any additional city specified in the related Supplement)
are authorized or obligated by law or executive order to be closed, and such
other days in each year designated by the Servicer in writing to the Trustee by
the first day of December in the preceding year.
"Cash Equivalents" shall mean, unless otherwise provided in the Supplement
with respect to any Series, (a) negotiable instruments or securities represented
by instruments in bearer or registered form which evidence (i) obligations of or
fully guaranteed by the United States of America; (ii) time deposits, promissory
notes, or certificates of deposit of any depositary institution or
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trust company; provided, however, that at the time of the Trust's investment or
contractual commitment to invest therein, the certificates of deposit or short-
term deposits of such depositary institution or trust company shall have a
credit rating from Standard & Poor's of A-1+ and from Moody's of P-1; (iii)
commercial paper having, at the time of the Trust's investment or contractual
commitment to invest therein, a rating from Standard & Poor's of A-1+ and from
Moody's of P-1; (iv) banker's acceptances issued by any depositary institution
or trust company described in clause (a)(ii) above; and (v) investments in money
market funds rated AAA-m or AAA-mg by Standard & Poor's and Aaa by Moody's or
otherwise approved in writing by Moody's and Standard & Poor's; (b) time
deposits and demand deposits in the name of the Trust or the Trustee in any
depositary institution or trust company referred to in clause (a)(ii) above; (c)
securities not represented by an instrument that are registered in the name of
the Trustee or its nominee (which may not be Green Tree or an Affiliate) upon
books maintained for that purpose by or on behalf of the issuer thereof and
identified on books maintained for that purpose by the Trustee as held for the
benefit of the Trust or the Certificateholders, and consisting of (x) shares of
an open end diversified investment company which is registered under the
Investment Company Act which (i) invests its assets exclusively in obligations
of or guaranteed by the United States of America or any instrumentality or
agency thereof having in each instance a final maturity date of less than one
year from their date of purchase or other Cash Equivalents, (ii) seeks to
maintain a constant net asset value per share, (iii) has aggregate net assets of
not less than $100,000,000 on the date of purchase of such shares and (iv) which
each Rating Agency designates in writing will not result in a withdrawal or
downgrading of its then current rating of any Series rated by it or (y)
Eurodollar time deposits of a depository institution or trust company that are
rated A-1+ by Standard & Poor's and P-1 by Moody's; provided, however, that at
the time of the Trust's investment or contractual commitment to invest therein,
the Eurodollar deposits of such depositary institution or trust company shall
have a credit rating from Standard & Poor's of A-1+ and P-1 by Moody's; and (d)
any other investment if each Rating Agency confirms in writing that such
investment will not adversely affect its then current rating of the Investor
Certificates.
"CEDEL" shall mean Cedel Bank, societe anonyme, the professional
depository, incorporated under the laws of Luxembourg, which holds securities
for its participating organizations and facilitates the clearance and settlement
of securities transactions between Cedel Participants through electronic book-
entry changes in the accounts of such Cedel Participants.
"Certificate" shall mean any one of the Investor Certificates of any Series
or the Exchangeable Transferor Certificate.
"Certificate Interest" shall mean interest payable in respect of the
Investor Certificates of any Series pursuant to Article IV of the Agreement as
supplemented by the Supplement for such Series.
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"Certificate Owner" shall mean, with respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry Certificate, as may be
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"Certificate Principal" shall mean principal payable in respect of the
Investor Certificates of any Series pursuant to Article IV of this Agreement.
"Certificate Rate" shall mean, with respect to any Series of Certificates
(or, for any Series with more than one Class, for each Class of such Series),
the percentage (or formula on the basis of which such rate shall be determined)
stated in the related Supplement.
"Certificate Register" shall mean the register maintained pursuant to
Section 6.3, providing for the registration of the Certificates and transfers
and exchanges thereof.
"Certificateholder" or "Holder" shall mean the Person in whose name a
Certificate is registered in the Certificate Register and, if applicable, the
holder of any Bearer Certificate or Coupon, as the case may be.
"Class" shall mean, with respect to any Series, any one of the classes of
Certificates of that Series as specified in the related Supplement.
"Clearing Agency" shall mean an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
"Clearing Agency Participant" shall mean a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency or Foreign Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency or Foreign Clearing Agency.
"Closing Date" shall mean, with respect to any Series, the date of issuance
of such Series of Certificates, as specified in the related Supplement.
"Collateral Security" shall mean, with respect to any Receivable, (i) the
security interest, if any, granted by or on behalf of the related Dealer with
respect thereto, including, a first priority perfected security interest in the
related Products or assets, (ii) all other security interests or liens and
property subject thereto from time to time purporting to secure payment of such
Receivable, whether pursuant to the agreement giving rise to such Receivable or
otherwise, together with all financing statements signed by a Dealer describing
any collateral securing such Receivable, (iii) all guarantees, insurance and
other agreements (including Floorplan Agreements and subordination agreements
with other lenders) or arrangements of whatever character from time to time
supporting or securing
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payment of such Receivable whether pursuant to the agreement giving rise to such
Receivable or otherwise, and (iv) all Records in respect of such Receivable.
"Collection Account" shall have the meaning specified in subsection 4.2(a).
"Collections" shall mean, without duplication, all payments by or on behalf
of Dealers received by the Servicer in respect of the Receivables (including
proceeds from the realization upon any Collateral Security), in the form of
cash, checks, wire transfers or any other form of payment. Collections shall
include both the Principal Collections and Interest Collections.
"Corporate Trust Office" shall mean the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office at the date of the execution of this Agreement is located at
Norwest Center, Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479-
0069, Attention: Corporate Trust Department.
"Coupon" shall have the meaning specified in Section 6.1.
"Daily Report" shall mean a report in the form specified in subsection
1.2(e) as may be supplemented pursuant to any Supplement.
"Date of Processing" shall mean, with respect to any transaction, the date
on which such transaction is first recorded on the Servicer's computer file of
accounts (without regard to the effective date of such recordation).
"Dealer" shall mean each of the dealers, manufacturers and distributors who
are obligated under the Receivables.
"Dealer Overconcentration" on any Distribution Date shall mean, with
respect to any Account with a Dealer, the excess of (a) the aggregate of
Principal Receivables in such Account on the last day of the Monthly Period
immediately preceding such Distribution Date over (b) 2% of the Principal
Receivables on the last day of such immediately preceding Monthly Period.
Certain Dealers may be subject to a higher percentage limit with Rating Agency
approval, but in no case higher than 3%. Notwithstanding the above, in the case
of such Overconcentration, the percentage in clause (b) may be increased by the
Transferor, without the consent of any Certificateholder, to a level acceptable
to each Rating Agency without any reduction or withdrawal of its rating of the
Class A, Class B or Class C Certificates (but which may involve an adjustment,
upward or downward, of the Class D Invested Amount).
"Defaulted Receivable" shall mean each Eligible Receivable which, in
accordance with the Servicer's customary and usual servicing procedures, the
Servicer has charged off as uncollectible; a Receivable shall become a Defaulted
Receivable on the day on which such Receivable is recorded as charged off as
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uncollectible on the Servicer's computer file. Notwithstanding any other
provision hereof, any Defaulted Receivables that are Ineligible Receivables
shall be treated as Ineligible Receivables rather than Defaulted Receivables.
"Defeasance Account" shall have the meaning specified in the applicable
Supplement.
"Definitive Certificate" shall have the meaning specified in Section 6.10.
"Demand Note" shall mean the Demand Note, dated December ___, 1995, issued
by Green Tree to the Transferor, and any Demand Notes issued in replacement
thereof.
"Depositary" shall have the meaning specified in Section 6.10.
"Depositary Agreement" shall mean, with respect to each Series, the
agreement among the Transferor, the Trustee and the Clearing Agency, or as
otherwise provided in the related Supplement.
"Designated Account" shall have the meaning specified in Section 2.8(b).
"Designated Balance" shall have the meaning specified in Section 2.8(b).
"Determination Date" with respect to any Distribution Date shall mean the
second Business Day prior to each Distribution Date.
"Discount Factor" shall initially be 0%; provided, however, that such
percentage may be changed from time to time by the Transferor if such change
will not cause a Pay Out Event to occur and the Rating Agency has confirmed that
the change will not result in the Rating Agency reducing or withdrawing its
original rating on any then outstanding Series rated by it.
"Disposition" shall have the meaning specified in Section 9.2(a).
"Distribution Account" shall have the meaning specified in subsection
4.2(c).
"Distribution Date" shall mean, unless otherwise specified in any
Supplement for the related Series, the thirteenth day of each month or, if such
day is not a Business Day, the next succeeding Business Day.
"Dollars," "$" or "U.S. $" shall mean United States dollars.
"Eligible Account" shall mean as of the relevant Cut-off Date (or, with
respect to Additional Accounts, as of their date of designation for inclusion in
the Trust), an arrangement to provide a revolving extension of credit by Green
Tree or one of its subsidiaries to a Dealer (i) in order to finance the purchase
by a Dealer of consumer
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and commercial product inventory or (ii) as a line of credit secured by
unencumbered assets of such Dealer, which extension of credit, as of the date of
determination thereof, (a) is in existence and maintained with Green Tree or
such subsidiary, (b) is payable in United States dollars, (c) is with a Dealer
whose most recent billing address is in the United States or its territories or
possessions, (d) has been originated by Green Tree or such subsidiary in the
ordinary course of its business or acquired by Green Tree through the
acquisition of an Eligible Account from another lender upon satisfying Green
Tree's customary underwriting standards, (e) in respect of which no amounts have
been charged off by Green Tree or such subsidiary as uncollectible in its
customary and usual manner as of the Cut-off Date (or, with respect to
Additional Accounts, as of their date of designation for inclusion in the
Trust), and (f) is with a Dealer that is not involved in insolvency proceedings.
"Eligible Portfolio" shall mean all the Accounts that were Eligible
Accounts at the Cut-off Date.
"Eligible Receivable" shall mean a Receivable:
(a) that was originated by Green Tree or one of its subsidiaries in
the ordinary course of business or acquired by Green Tree through the
acquisition of an Eligible Account from another lender upon satisfying
Green Tree's customary underwriting standards;
(b) that has arisen under an Eligible Account;
(c) that was created in compliance in all respects with all
requirements of law applicable thereto and pursuant to a floorplan or
asset-based financing agreement that complies with all requirements of law
applicable thereto;
(d) with respect to which all consents, licenses or authorizations of,
or registrations with, any governmental authority required to be obtained,
effected or given by Green Tree or the Transferor in connection with the
creation of such Receivable or the transfer thereof to the Trust or the
execution, delivery, creation and performance by Green Tree or such
subsidiary of the related floorplan or asset-based financing agreement have
been duly obtained or given and are in full force and effect as of the date
of the creation of such Receivable;
(e) as to which at the time of its creation, the Transferor had good
and marketable title free and clear of all liens and security interests
(other than certain liens permitted pursuant to the Pooling and Servicing
Agreement), and at all times following the transfer of such Receivables to
the Trust, the Trust will have good and marketable title free and clear of
all liens and security interests (other than certain liens permitted
pursuant to the
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Pooling and Servicing Agreement) or the grant of a first priority security
interest therein;
(f) that is the legal, valid, binding and assignable payment
obligation of the related Dealer, legally enforceable against such Dealer
in accordance with its terms (with certain bankruptcy related exceptions);
(g) that constitutes "chattel paper," an "account" or a "general
intangible" under Article 9 of the UCC as then in effect in the State of
Minnesota;
(h) if such Receivable has the benefit of a Floorplan Agreement with a
Manufacturer, such Floorplan Agreement provides, subject to the specific
terms thereof and any limitations therein (which may vary among Floorplan
Agreements), that the Manufacturer is obligated to repurchase the products
securing the Receivables upon the Servicer's repossession thereof upon the
related Dealer's default;
(i) which has been the subject of a valid transfer and assignment from
the Transferor to the Trust of all the Transferor's interest therein and in
the related Collateral Security (including any proceeds thereof);
(j) which at the time of transfer to the Trust is not subject to any
right of rescission, setoff, or any other defense (including defenses
arising out of violations of usury laws) of the Dealer;
(k) as to which, at the time of transfer of such Receivable to the
Trust, Green Tree (or such subsidiary) and the Transferor have satisfied
all their respective obligations with respect to such Receivable required
to be satisfied at such time;
(l) as to which, at the time of transfer of such Receivable to the
Trust, neither Green Tree (or such subsidiary) nor the Transferor has taken
or failed to take any action which would impair the rights of the Trust or
the certificateholders therein; and
(m) which represents the obligation of a Dealer to repay an advance
made to or on behalf of such Dealer to finance products or the accounts
receivable arising from the sale of such products.
"Enhancement" shall mean, with respect to any Series, any cash collateral
account, cash collateral guaranty, collateral invested amount, letter of credit,
guaranteed rate agreement, maturity guaranty facility, tax protection agreement,
interest rate cap, interest rate swap, subordination of the rights of one class
to another, or any other contract, agreement or arrangement for the benefit of
the
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Certificateholders of such Series (or Certificateholders of a Class within
such Series) as designated in the applicable Supplement.
"Enhancement Provider" shall mean, with respect to any Series, the Person,
if any, designated as such in the related Supplement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"Euroclear" or "Euroclear Operator" shall mean Xxxxxx Guaranty Trust
Company of New York, Brussels, Belgium office, as operator of the Euroclear
System.
"Excess Funding Account" shall have the meaning specified in subsection
4.2(d).
"Exchange" shall mean either of the procedures described in Section 6.9(b).
"Exchangeable Transferor Certificate" shall mean the certificate executed
by the Transferor and authenticated by the Trustee, substantially in the form of
Exhibit A and exchangeable as provided in Section 6.9; provided, that at any
time there shall be only one Exchangeable Transferor Certificate.
"Exchange Date" shall have the meaning, with respect to any Series issued
pursuant to an Exchange, specified in subsection 6.9(b).
"Exchange Notice" shall have the meaning, with respect to any Series issued
pursuant to an Exchange, specified in subsection 6.9(b).
"Existing Manufacturer" shall mean (i) each Manufacturer with which Green
Tree or a subsidiary of Green Tree has entered into a business arrangement,
either through a Floorplan Agreement or any other arrangement, on or prior to
the Closing Date for Series 1995-1 and (ii) each Manufacturer with which Green
Tree or a subsidiary of Green Tree enters into such a business arrangement after
the Closing Date for Series 1995-1 and as to which the Rating Agency Condition
is satisfied.
"Extended Trust Termination Date" shall have the meaning specified in
subsection 12.1(a).
"FDIC" shall mean the Federal Deposit Insurance Corporation, or any
successor thereto.
"Finance Charge Collections" shall mean for any Business Day, the aggregate
of (i) all collections on the Receivables with respect to interest or other
fees, (ii) investment earnings on amounts on deposit in all Trust Accounts on
such Business Day, and (iii) Recoveries for such Business Day.
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"Financing Agreement" shall mean any Wholesale Financing Agreement or
Asset-Based Financing Agreement.
"Financing Guidelines" shall mean Green Tree's written policies and
procedures, as such policies and procedures may be amended from time to time,
(a) relating to the operation of its Floorplan Business and Asset-Based Lending
Business, including the written policies and procedures for determining the
interest rate, if any, charged to Dealers, the other terms and conditions
relating to Green Tree's wholesale financing accounts, the creditworthiness of
Dealers and the extension of credit to Dealers, and (b) relating to the
maintenance of accounts and collection of receivables.
"Fixed/Floating Allocation Percentage" shall mean for a Series, for any
Business Day or Distribution Date, as applicable, the percentage equivalent of a
fraction, the numerator of which is the Invested Amount of such Series at the
end of the last day of Revolving Period of such Series and the denominator of
which is the greater of (a) the Pool Balance (plus amounts, if any, on deposit
in the Excess Funding Account) at the end of the preceding Business Day and (b)
the sum of the numerators used to calculate the allocation percentages with
respect to Principal Collections for all Series.
"Floating Allocation Percentage" shall mean for a Series on any Business
Day the percentage equivalents of fractions, the numerator of each of which is
the Invested Amount at the end of the preceding business day and the denominator
of which is the greater of (a) the Pool Balance (plus amounts, if any, on
deposit in the Excess Funding Account) as of the end of the preceding Business
Day and (b) with respect to Principal Collections only, the sum of the
numerators for all classes of all Series then outstanding used to calculate the
applicable allocation percentage.
"Floorplan Agreement" shall mean the agreement Green Tree enters into with
a Manufacturer providing financing for products for Dealers.
"Floorplan Business" shall mean the extensions of credit made by Green Tree
to Dealers in order to finance Products purchased by Dealers from Manufacturers.
"Floorplan Receivables" represent extensions of credit to finance product
inventory for dealers, and are secured by the related dealer's product
inventory.
"Foreign Clearing Agency" shall mean CEDEL and the Euroclear Operator.
"Global Certificate" shall have the meaning specified in Section 6.13.
"Governmental Authority" shall mean the United States of America, any state
or other political subdivision thereof and any entity exercising executive,
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legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Green Tree" shall mean Green Tree Financial Corporation, a corporation
organized and existing under the laws of the State of Delaware, and its
successors in interest.
"GTFFC" shall mean Green Tree Floorplan Funding Corp., a corporation
organized and existing under the laws of the State of Delaware, and its
successors in interest.
"Holder" or "Certificateholder" shall mean the Person in whose name a
Certificate is registered in the Certificate Register, and if applicable, the
holder of any Bearer Certificate or Coupon, as the case may be.
"Imputed Yield Collections" shall mean the specified percentage of
Principal Collections which the Transferor elects to be treated as interest
collections.
"Imputed Yield Receivables" shall mean the product of the aggregate unpaid
balance of the Eligible Receivables and the Discount Factor.
"Ineligible Account" shall mean an Account that at the time of
determination is not an Eligible Account.
"Ineligible Amount" on any Determination Date shall mean the amount of the
Ineligible Receivables included in the Trust on such Determination Date.
"Ineligible Receivable" means any Receivable that does not satisfy the
definition of Eligible Receivable.
"Initial Account" shall mean each individual revolving credit agreement
entered into with Green Tree or one of its subsidiaries by Dealers to finance
their production and inventory of consumer commercial products and which is
identified in the computer file or microfiche or written list delivered to the
Trustee on the first Closing Date by the Transferor pursuant to Section 2.1.
"Initial Closing Date" shall mean December 20, 1995.
"Initial Cut-off Date" shall mean November 10, 1995.
"Initial Invested Amount" shall mean, with respect to any Series of
Certificates, the amount stated in the related Supplement.
"Insolvency Event" shall have the meaning specified in subsection 9.2(a).
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"Insurance Proceeds" with respect to an Account shall mean any amounts
received by the Servicer pursuant to any policy of insurance which is required
to be paid to Green Tree pursuant to a Wholesale Financing Agreement or an
Asset-Based Financing Agreement.
"Interest Collections" for any business day means the sum of (a) all
Finance Charge Collections and (b) all Imputed Yield Collections (if a Discount
Factor is then in effect) for such business day.
"Interest Funding Account" shall have the meaning specified in subsection
4.2(b).
"Interest Receivables" shall mean, with respect to any Account, all amounts
billed to the related Dealer in respect of interest and all other non-principal
charges, plus any Imputed Yield Receivables.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Invested Amount" shall have, with respect to any Series of Certificates,
the meaning stated in the related Supplement.
"Investment Company Act" shall mean the Investment Company Act of 1940, as
amended from time to time.
"Investor Account" shall mean each of the Interest Funding Account, any
Principal Account, the Excess Funding Account, any Distribution Account and any
Series Account.
"Investor Certificate" shall mean any one of the certificates (including,
without limitation, the Bearer Certificates or the Registered Certificates)
executed by the Transferor and authenticated by the Trustee substantially in the
form (or forms in the case of a Series with multiple classes) of the investor
certificate or variable funding certificate attached to the related Supplement.
"Investor Certificateholder" shall mean the Holder of an Investor
Certificate.
"Investor Charge Off" shall have, with respect to each Series, the meaning
specified in the applicable Supplement.
"Investor Default Amount" shall have, with respect to any Series of
Certificates, the meaning stated in the related Supplement.
"Investor Exchange" shall have the meaning specified in subsection 6.9(b).
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"Investor Percentage" shall mean, with respect to Principal Collections,
Imputed Yield Collections and Defaulted Receivables, and any Series of
Certificates, the Floating Allocation Percentage or the Fixed/Floating
Allocation Percentage, as applicable.
"Lien" shall mean any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), preference, participation interest, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever, including any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing and the filing of
any financing statement under the UCC or comparable law of any jurisdiction to
evidence any of the foregoing; provided, however, that (i) any assignment
permitted by Section 7.2, (ii) any Lien created by this Agreement or any
Supplement, (iii) any security interests in the Products that are subordinate to
the security interests securing the related Receivables and (iv) any inchoate
lien that arises by operation of laws is not delinquent or due and affects
collateral securing a Receivable (but does not encumber any Receivable) shall
not be deemed to constitute a Lien.
"Manufacturer" shall mean the manufacturer, distributor or vendor of
products for sale or lease to Dealers in the ordinary course of business.
"Manufacturer Overconcentration" on any Distribution Date shall mean, the
excess of (a) the aggregate of all amounts of Principal Receivables in Accounts
created pursuant to Floorplan Agreements with a single Manufacturer on the last
day of the Monthly Period immediately preceding such Distribution Date that are
covered by a Floorplan Agreement with such Manufacturer over (b) 15% of the
Principal Receivable on the last day of such immediately preceding Monthly
Period. Notwithstanding the above, in the case of each such Overconcentration,
the percentage in clause (b) for such Overconcentration may be increased by the
Transferor, without the consent of any Certificateholder, to a level acceptable
to each Rating Agency without any reduction or withdrawal of its rating of the
Class A, Class B or Class C Certificates (but which may involve an adjustment,
upward or downward, of the Class D Invested Amount).
"Minimum Aggregate Principal Receivables" shall mean, as of any date of
determination, an amount equal to the Initial Invested Amounts for all
outstanding Series on such date.
"Minimum Net Worth" shall mean, at any time of determination, $________.
"Minimum Retained Interest" shall mean the product of the weighted average
Minimum Retained Percentages for all Series and the sum of the outstanding
principal amounts of all classes of all Series.
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"Minimum Retained Percentage" shall mean the highest Minimum Retained
Percentage specified in any Supplement.
"Minimum Transferor Interest" shall mean, as of any date of determination,
the product of (i) the Invested Amount and (ii) the Minimum Transferor
Percentage.
"Minimum Transferor Percentage" shall mean the highest Minimum Transferor
Percentage specified in any Supplement for an outstanding Series.
"Monthly Investor Servicing Fee" shall mean the Servicing Fee payable to
the Servicer with respect to a Monthly Period.
"Monthly Payment Rate" shall mean, for any Monthly Period, the percentage
equivalent of a fraction, the numerator of which is the aggregate of the
Receivables balances (without deducting therefrom the discount portion, if any)
collected during such Monthly Period, and the denominator of which is the
average daily aggregate Receivables balance (without deducting therefrom the
discount portion, if any) for such Monthly Period.
"Monthly Period" shall mean, unless otherwise defined with respect to a
Series in the related Supplement, the period from and including the first day of
each calendar month to and including the last day of such calendar month.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or any successor
thereto.
"Net Receivables Rate" shall mean, for any Distribution Date (i) the
weighted average of the interest rates borne by the Receivables during the
second preceding Monthly Period (because interest payments on the Receivables at
such rates will be due and payable in the Monthly Period preceding such
Distribution Date), plus (ii) the product of (x) the Monthly Payment Rate for
the Monthly Period preceding such Distribution Date, (y) the Discount Factor, if
any, for such Distribution Date, and (z) twelve, less 2% per annum, unless the
Servicing Fee has been waived for such Monthly Period pursuant to Section 8.8.
"NSF" shall mean, with respect to a Receivable, that a check in payment of
such Receivable has been returned because of insufficient funds and has not
thereafter been paid.
"Obligor" shall mean a Person obligated to make payments with respect to a
Receivable pursuant to a Financing Agreement.
"Officer's Certificate" shall mean a certificate signed by any Vice
President, Treasurer, Assistant Treasurer or more senior officer of the
Transferor or Servicer and delivered to the Trustee.
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"Opinion of Counsel" shall mean a written opinion of counsel, who may be
counsel for or an employee of Green Tree or the Transferor, and who shall be
reasonably acceptable to the Trustee.
"Outstanding Balance" shall mean, with respect to a Receivable on any day,
the aggregate amount owed by the Dealer thereunder as of the close of business
on the prior Business Day (net of returns and adjustments).
"Overconcentration Amount" on each Distribution Date shall mean, the
aggregate principal amount of Receivables in the Trust on such Distribution Date
which are Asset-Based Receivable Overconcentrations, Dealer Overconcentrations,
Manufacturer Overconcentrations and Product Line Overconcentrations.
"Paying Agent" shall mean any paying agent appointed pursuant to Section
6.6 and shall initially be the Trustee.
"Pay Out Commencement Date" shall mean, with respect to each Series, the
date on which (a) a Trust Pay Out Event is deemed to occur pursuant to Section
9.1 or (b) a Series Pay Out Event is deemed to occur pursuant to the Supplement
for such Series.
"Pay Out Event" shall mean, with respect to each Series, a Trust Pay Out
Event or a Series Pay Out Event.
"Permitted Lien" shall mean with respect to the Receivables: (i) Liens in
favor of the Transferor created pursuant to the Purchase Agreement assigned to
the Trustee pursuant to this Agreement; (ii) Liens in favor of the Trustee
pursuant to this Agreement; and (iii) Liens which secure the payment of taxes,
assessments and governmental charges or levies, if such taxes are either (a) not
delinquent or (b) being contested in good faith by appropriate legal or
administrative proceedings and as to which adequate reserves in accordance with
generally accepted accounting principles shall have been established.
"Person" shall mean any legal person, including any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, governmental entity or other entity of
similar nature.
"Pool Balance" shall mean the product of (i) the total amount of Principal
Receivables and (ii) one minus the Discount Factor.
"Principal Account" shall have the meaning specified in subsection 4.2(b).
"Principal Collections" shall mean, with respect to any Business Day, all
Collections, other than Interest Collections.
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"Principal Funding Investment Shortfall" shall mean an amount equal to the
difference between (i) the amount of interest actually earned on investments in
the Principal Account on any day and (ii) the amount of interest that would have
been earned on such investments at the Base Rate for such day.
"Principal Investment Proceeds" shall mean the investment earnings (net of
investment losses and expenses) of funds on deposit in the Principal Account
during the Controlled Accumulation Period.
"Principal Receivables" with respect to an Account shall mean amounts shown
on the Servicer's records as Receivables(other than such amounts that represent
Imputed Yield Receivables, Defaulted Receivables or interest payable by the
related Dealer).
"Principal Shortfalls" shall mean, with respect to any Business Day and any
outstanding Series, the amount which the related Supplement specifies as the
"Principal Shortfall" for such Business Day.
"Principal Terms" shall have the meaning, with respect to any Series issued
pursuant to an Exchange, specified in subsection 6.9(c).
"Product Line Overconcentration" on any Distribution Date means, the excess
of (a) the aggregate of all amounts of Principal Receivables in the Accounts
that represent financing for a single product line (other than Asset-Based
Receivables and Receivables that represent financing for manufactured housing)
on the last day of the Monthly Period immediately preceding such Distribution
Date over (b) 5% for marine products, 5% for recreational vehicles, and 5% for
any other products in total, of the Principal Receivables on the last day of
such immediately preceding Monthly Period. Notwithstanding the above, in the
case of each such Overconcentration, the percentage in clause (b) for such
Overconcentration may be increased by the Transferor, without the consent of any
Certificateholder, to a level acceptable to each Rating Agency without any
reduction or withdrawal of its rating of the Class A or Class B Certificates
(but which may involve an adjustment, upward or downward, of the Class D
Invested Amount).
"Products" shall mean the commercial and consumer goods financed by Green
Tree for Dealers pursuant to a Wholesale Financing Agreement.
"Prospective Pay Out Event" shall have the meaning specified in subsection
2.3(n).
"Publication Date" shall have the meaning specified in subsection 9.2(a).
"Purchase Agreement" shall mean the Receivables Purchase Agreement dated as
of December 1, 1995 between the Transferor, as purchaser of such Receivables,
and Green Tree, as seller of such Receivables, governing the terms and
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conditions upon which the Transferor is acquiring the initial Receivables
transferred to the Trust on the Closing Date and all Receivables acquired
thereafter, as the same may from time to time be amended, modified or otherwise
supplemented.
"Qualified Institution" shall have the meaning specified in subsection
4.2(a).
"Rating Agency" shall mean, with respect to each Series, the rating agency
or agencies, if any, specified in the related Supplement.
"Rating Agency Condition" shall mean, with respect to any action, that each
Rating Agency shall have notified the Transferor, the Servicer and the Trustee
in writing that such action will not result in a reduction or withdrawal of the
rating of any outstanding Series or Class with respect to which it is a Rating
Agency.
"Reassignment Date" shall have the meaning specified in subsection 2.4(d).
"Receivables" shall mean, with respect to an Account, all amounts payable
(including interest, finance charges and other charges), and the obligation to
pay such amounts, by the related Dealer from time to time in respect of advances
made by Green Tree to or on behalf of such Dealer in connection with the
Floorplan Business or the Asset-Based Lending Business, as the case may be,
together with the group of writings evidencing such amounts and the security
interest created in connection therewith and all of the rights, remedies, powers
and privileges thereunder (including under the related Financing Agreement).
Receivables which become Defaulted Receivables will cease to be included as
Receivables on the day on which they become Defaulted Receivables, but
Recoveries in respect thereof, shall be part of the Trust. Receivables which
Green Tree is unable to transfer to the Transferor pursuant to the Purchase
Agreement or which the Transferor is unable to transfer to the Trust as provided
in Section 2.6(d) and Receivables which arise in Designated Accounts from and
after the related Removal Commencement Date shall not be included in calculating
the amount of Receivables.
"Record Date" shall mean, with respect to any Distribution Date, unless
otherwise specified in the applicable Supplement, the Business Day preceding
such Distribution Date, except that, with respect to any Definitive
Certificates, Record Date shall mean the fifth day of the then current Monthly
Period.
"Records" shall mean, with respect to any Receivable, all documents, books,
records and other information (including, without limitation, computer programs,
tapes, discs, punch cards, data processing software and related property and
rights) relating to such Receivable and the related Dealer.
"Recoveries" shall mean any amounts received by the Servicer with respect
to Receivables that were previously charged off as uncollectible in accordance
with the Servicer's customary and usual servicing procedures.
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"Registered Certificates" shall have the meaning specified in Section 6.1.
"Related Person" shall mean a Person that is an Affiliate of Green Tree,
any Investor Certificateholder, any Enhancement Provider, or any Person whose
status would violate the conditions for a trustee contained in Section (4)(i) of
Rule 3a-7 under the Investment Company Act of 1940, as amended.
"Relevant UCC State" shall mean each jurisdictions in which the filing of a
UCC financing statement is necessary to perfect the ownership interest and
security interest of the Transferor pursuant to the Purchase Agreement or the
ownership or security interest of the Trustee established under this Agreement.
"Removal Date" shall have the meaning specified in Section 2.7(b).
"Removal Notice" shall have the meaning specified in Section 2.7(b).
"Removed Account" shall have the meaning specified in Section 2.7(b).
"Requirements of Law" for any Person shall mean the certificate of
incorporation or articles of association and bylaws or other organizational or
governing documents of such Person, and any material law, treaty, rule or
regulation, or determination of an arbitrator or Governmental Authority, in each
case applicable to or binding upon such Person or to which such Person is
subject, whether Federal, state or local (including usury laws and the Federal
Truth in Lending Act).
"Responsible Officer" shall mean any officer within the Corporate Trust
Office (or any successor group of the Trustee), including the President, any
Vice President or any other officer of the Trustee customarily performing
functions similar to those performed by any person who at the time shall be an
above-designated officer and who shall have direct responsibility for the
administration of this Agreement.
"Retained Interest" shall mean, on any date of determination, the sum of
the Transferor Interest and the Invested Amount represented by any Transferor
Retained Certificate.
"Retained Percentage" shall mean, on any date of determination, the
percentage equivalent of a fraction the numerator of which is the Retained
Interest and the denominator of which is the aggregate amount of Principal
Receivables at the end of the day immediately prior to such date of
determination plus all amounts on deposit in the Excess Funding Account (but not
including investment earnings on such amounts).
"Revolving Period" shall have, with respect to each Series, the meaning
specified in the related Supplement.
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"SAU" shall mean "sold and unpaid" and refers to inventory that the Dealer
has sold without immediate repayment to Green Tree.
"Secured Obligations" shall have the meaning specified in Section 2.1.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Series" shall mean any series of Investor Certificates, issued by the
Trust pursuant to a Supplement, including the 1995-1 Series Supplement
"Series Account" shall mean any account or accounts established pursuant to
a Supplement for the benefit of the related Series.
"Series Allocation Percentage" shall mean with respect to any Series, or
any date of determination, the percentage equivalent of a fraction the numerator
of which is the Invested Amount of such Series and the denominator of which is
the sum of the Invested Amounts of all Series then outstanding.
"Series Cut-off Date" shall mean, with respect to any Series, the date
specified as such in the related Supplement.
"Series 1995-1" shall mean the series of Investor Certificates to be issued
and to be designated as "Series 1995-1."
"Series Pay Out Event" shall have, with respect to any Series, the meaning
specified in the related Supplement.
"Series Servicing Fee Percentage" shall mean, with respect to any Series,
the amount specified as such in the related Supplement.
"Servicer Default" shall have the meaning specified in Section 10.1.
"Servicing Fee" shall have the meaning specified in the related
Supplements.
"Servicing Officer" shall mean any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Receivables whose name
appears on a list of servicing officers furnished to the Trustee by the Servicer
as such list may from time to time be amended.
"Settlement Statement" shall mean a report in the form specified in
subsection 1.2(e) as may be supplemented pursuant to any Supplement.
"Shared Principal Collections" shall mean, with respect to any Business
Day, for all outstanding Series the aggregate amount of Principal Collections
which the
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related Supplements specify are to be treated as "Shared Principal Collections"
available to be allocated to other Series for such Business Day.
"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a
Division of The XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"Successor Servicer" shall have the meaning specified in subsection
10.2(a).
"Supplement" shall mean, with respect to any Series, a supplement to this
Agreement complying with the terms of Section 6.9 of this Agreement, executed in
conjunction with any issuance of Certificates of such Series (or, in the case of
the issuance of Certificates on the Initial Closing Date, the supplements
executed in connection with the issuance of such Certificates).
"Tax Opinion" shall mean, with respect to any action, an Opinion of Counsel
to the effect that, for Federal income and Minnesota state income and franchise
tax purposes, (a) such action will not adversely affect the characterization of
the Investor Certificates of any outstanding Series or Class as debt, (b) such
action will not cause or constitute a taxable event with respect to any Investor
Certificateholders or the Trust, (c) such action will not cause the Trust to be
characterized as an association, publicly traded partnership or taxable mortgage
pool taxable as a corporation, and (d) in the case of Section 6.3(b), the
Investor Certificates of the new Series will be characterized as debt.
"Termination Notice" shall have, with respect to any Series, the meaning
specified in Section 10.1.
"Transfer" shall mean transfer, sell, exchange, pledge, hypothecate,
participate, or otherwise assign, in whole or in part.
"Transfer Agent and Registrar" shall have the meaning specified in Section
6.3 and shall initially be the Trustee.
"Transfer Date" shall mean, with respect to any Series, the Business Day
immediately prior to the Distribution Date on which the Servicer may make
deposits and payments.
"Transfer Deposit Amount" shall mean, with respect to any Receivable
reassigned or assigned to the Transferor or the Servicer, as applicable,
pursuant to Section 2.4(c) or Section 3.3, the amounts specified in such
Sections.
"Transferor" shall mean Green Tree Floorplan Funding Corp., a corporation
organized and existing under the laws of the State of Delaware, and any
successor thereto.
"Transferor Exchange" shall have the meaning specified in subsection
6.9(b).
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"Transferor Interest" shall mean the Transferor's right to the assets of
the Trust not allocated to the Series 1995-1 Certificateholders' Interest or the
interest of the holders of certificates of any future Series pursuant to the
Pooling and Servicing Agreement and applicable Supplements.
"Transferor Interest Collections" shall mean, on any Business Day, the
Series Allocation Percentage of the Interest Collections allocable to the
Transferor Interest for such Business Day.
"Transferor Percentage" shall mean (a) when used with respect to Principal
Collections during the Revolving Period and Interest Collections and the amount
of Defaulted Receivables at all times, 100% minus the sum of the Floating
Allocation Percentage and the floating allocation percentages for all other
Series and (b) when used with respect to Principal Collections during the
Controlled Accumulation Period or Early Amortization Period, 100% minus the sum
of the Fixed/Floating Allocation Percentage and the allocation percentages used
with respect to Principal Collections for all other Series.
"Transferor Retained Certificates" shall mean Investor Certificates of any
Series which the Transferor is required to retain pursuant to the terms of any
Supplement.
"Transferor Retained Class" shall mean any Class of Investor Certificates
of any Series that the Transferor is initially required to retain pursuant to
the terms of any Supplement.
"Trigger Event" shall have the meaning specified in subsection 9.2(a).
"Trust" shall mean the Green Tree Floorplan Receivables Master Trust
created by this Agreement, the corpus of which shall consist of the Trust
Property.
"Trust Extension" shall have the meaning specified in subsection 12.1(a).
"Trust Pay Out Event" shall have, with respect to each Series, the meaning
specified in Section 9.1.
"Trust Property" shall have the meaning assigned in Section 2.1.
"Trust Termination Date" shall mean the earliest to occur of (i) unless a
Trust Extension shall have occurred, the day after the Distribution Date with
respect to any Series following the date on which funds shall have been
deposited in the Distribution Account or the applicable Series Account for the
payment of Investor Certificateholders of each Series then issued and
outstanding sufficient to pay in full the Aggregate Invested Amount plus
interest accrued at the applicable Certificate Rate through the end of the day
prior to the Distribution Date with respect to each
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such Series and certain other amounts as may be specified in any Series
Supplement, (ii) if a Trust Extension shall have occurred, the Extended Trust
Termination Date, and (iii) the date specified in Section 12.1.
"Trustee" shall mean Norwest Bank Minnesota, National Association, a
national banking association, and its successors and any Person resulting from
or surviving any consolidation or merger to which it or its successors may be a
party and any successor trustee appointed as herein provided.
"UCC" shall mean the Uniform Commercial Code, as amended from time to time,
as in effect in the applicable jurisdiction.
"Undivided Interest" shall mean the undivided interest in the Trust
evidenced by an Investor Certificate.
"Wholesale Financing Agreement" shall mean a wholesale financing agreement
entered into by Green Tree and a Dealer in order to finance Products purchased
by such Dealer from a Manufacturer, as amended or modified from time to time.
Section 1.2 Other Definitional Provisions.
(a) All terms defined in any Supplement or this Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1, and accounting terms partially defined in Section 1.1 to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles. To the extent that the definitions of
accounting terms herein are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained herein shall
control.
(c) The agreements, representations and warranties of Green Tree in this
Agreement and in any Supplement in its capacity as Servicer and of GTFFC in its
capacity as Transferor shall be deemed to be the agreements, representations and
warranties of Green Tree and GTFFC solely in each such capacity for so long as
either of them acts in each such capacity under this Agreement.
(d) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to any Supplement or this
Agreement as a whole and not to any particular provision of this Agreement or
any Supplement; and Section, subsection, Schedule and Exhibit references
contained in this Agreement or any Supplement are references to Sections,
subsections,
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Schedules and Exhibits in or to this Agreement or any Supplement unless
otherwise specified.
(e) The Daily Report and Settlement Statement shall be in substantially the
forms of Exhibits B and C, with such changes as the Servicer may determine to be
necessary or desirable; provided, however, that no such change shall serve to
exclude information required by this Agreement or any Supplement and each such
change shall be reasonably acceptable to the Trustee. The Servicer shall, upon
making such determination and receiving the consent of the Trustee to such
change, deliver to the Trustee and each Rating Agency an Officer's Certificate
to which shall be annexed the form of the related Exhibit, as so changed. Upon
the delivery of such Officer's Certificate to the Trustee, the related Exhibit,
as so changed, shall for all purposes of this Agreement constitute such Exhibit.
The Trustee may conclusively rely upon such Officer's Certificate in determining
whether the related Exhibit, as changed, conforms to the requirements of this
Agreement.
Section 1.3 Provisions Relating to Rating Agencies. Provisions in this
Agreement relating to Standard & Poor's or Moody's or a Rating Agency shall be
effective only so long as there is a Series of Investor Certificates outstanding
that has been rated by such Rating Agency at the request of the Transferor. By
way of illustration and not limitation of the foregoing, if no Series of
Investor Certificates then outstanding has been rated at the request of the
Transferor by Standard & Poor's, a notice required hereunder to be given to a
Rating Agency need not be given to Standard & Poor's and an Eligible Institution
need not have its debt or certificates of deposit rated by Standard & Poor's.
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ARTICLE II
CONVEYANCE OF RECEIVABLES;
ISSUANCE OF CERTIFICATES
Section 2.1 Conveyance of Receivables. The Transferor does hereby sell,
transfer, assign, set-over, and otherwise convey (i) to the Trust for the
benefit of the Certificateholders and the other Beneficiaries on the Initial
Closing Date, in the case of the Initial Accounts, and on the applicable
Addition Date, in the case of Additional Accounts (except as expressly provided
herein), (i) all of its right, title and interest in, to and under the
Receivables in each Account and all Collateral Security with respect thereto
owned by the Transferor at the close of business on the Initial Cut-off Date, in
the case of Initial Accounts, and on the applicable Additional Cut-off Date, in
the case of Additional Accounts, and all monies due or to become due and all
amounts received with respect thereto and all proceeds (including proceeds as
defined in Section 9-306 of the UCC as in effect in the State of Minnesota and
Recoveries) thereof, (ii) all of the Transferor's rights, remedies, powers and
privileges with respect to such Receivables, and the Receivables conveyed to the
Trust in the next sentence, under the related Floorplan Agreements, if any, and
(iii) all of the Transferor's rights, remedies, powers and privileges with
respect to such Receivables under the Purchase Agreement, and (iv) all proceeds
of the foregoing. As of each Business Day prior to the earlier of (i) the
occurrence of a Pay Out Event specified in Section 9.1(b), (c), (d) or (e) and
(ii) the Trust Termination Date, on which Receivables are created in the
Accounts (a "Receivables Transfer Date"), the Transferor does hereby sell,
transfer, assign, set over and otherwise convey, without recourse (except as
expressly provided herein), to the Trust for the benefit of the
Certificateholders and the other Beneficiaries, all of its right, title and
interest in, to and under the Receivables in each Account (other than any
Receivables created in any Designated Account from and after the applicable
Removal Date) and all Collateral Security with respect thereto owned by the
Transferor at the close of business on such Transfer Date and not theretofore
conveyed to the Trust, all monies due or to become due and all amounts received
with respect thereto and all proceeds (including "proceeds" as defined in
Section 9-306 of the UCC as in effect in the State of Minnesota and Recoveries)
thereof. The foregoing sale, transfer, assignment, set-over and conveyance and
any subsequent sales, transfers, assignments, set-overs and conveyances do not
constitute, and are not intended to result in, the creation or an assumption by
the Trust, the Trustee, any Agent or any Beneficiary of any obligation of the
Servicer, Green Tree, the Transferor, or any other Person in connection with the
Accounts, the Receivables or under any agreement or instrument relating thereto,
including any obligation to any Dealers or Manufacturers and Green Tree (and not
any of the other foregoing Persons) shall continue to perform and be responsible
for their respective obligations under the Financing Agreements, Floorplan
Agreements and any related agreements and arrangements. The foregoing transfer,
assignment, setover and conveyance to the Trust, and any subsequent transfer,
assignment, setover and conveyance to the Trust, shall be made to the Trustee,
on behalf of the Trust, and
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each reference in this Agreement or any Supplement
to any such transfer, assignment, setover and conveyance shall be construed
accordingly.
In connection with such sales, the Transferor agrees to record and file, at
its own expense, a financing statement on form UCC-1 (and Transferor's or Green
Tree's continuation statements when applicable) with respect to the Receivables
now existing and hereafter created for the sale of chattel paper, accounts and
general intangibles (as defined in Section 9-105 of the UCC as in effect in any
state where the Transferor's or Green Tree's chief executive offices or books
and records relating to the Receivables are located) meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect the sale and assignment of the Receivables and the other assets
conveyed hereby to the Trust, and to deliver a file-stamped copy of such
financing statements or other evidence of such filing to the Trustee on or prior
to the first Closing Date, in the case of the Initial Accounts, and (if any
additional filing is so necessary) the applicable Addition Date, in the case of
Additional Accounts. The Trustee shall be under no obligation whatsoever to
file such financing statement, or a continuation statement to such financing
statement, or to make any other filing under the UCC in connection with such
sales.
In connection with such sales, the Transferor further agrees, at its own
expense, on or prior to the Initial Closing Date, in the case of the Initial
Accounts, the applicable Addition Date, in the case of Additional Accounts, and
the applicable Removal Commencement Date, in the case of Removed Accounts, (a)
to cause Green Tree to indicate in its books and records, which may include
computer files, as required by the Purchase Agreement, that the Receivables
created in connection with the Accounts (other than Removed Accounts) have been
sold, and the Collateral Security assigned, to the Transferor in accordance with
the Purchase Agreement and sold to the Trust pursuant to this Agreement for the
benefit of the Certificateholders and the other Beneficiaries and (b) to deliver
to the Trustee (or cause Green Tree to do so) a computer file or microfiche or
written list containing a true and complete list of all such Accounts (other
than Removed Accounts) specifying for each such Account, as of the Initial Cut-
off Date, in the case of the Initial Accounts, and the applicable Additional
Cut-off Date, in the case of Additional Accounts, (i) its account number and
(ii) the aggregate amount of Principal Receivables in such Account. Such file
or list, as supplemented from time to time to reflect Additional Accounts and
Removed Accounts, shall be marked as Schedule 1 to this Agreement and is hereby
incorporated into and made a part of this Agreement. The Trustee shall be under
no obligation whatsoever to verify the accuracy or completeness of the
information contained in Schedule 1 from time to time.
In the event that such sale and assignment is deemed to constitute a pledge
of security for a loan or loans (the "Secured Obligations"), it is the intent of
this Agreement that the Transferor shall be deemed to have granted to the
Trustee a first priority perfected security interest in all of the Transferor's
right, title and interest to and under the Receivables and the Collateral
Security and all proceeds thereof, the
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Floorplan Agreements and the Purchase Agreement, and that this Agreement shall
constitute a security agreement under applicable law in order to secure the
Secured Obligation. Such property, together with all monies as are from time to
time deposited in the Collection Account, any Interest Funding Account, any
Principal Account, any Distribution Account, any Series Account and the Excess
Funding Account and all amounts on deposit in or credited to such accounts and
any other account and all monies as are from time to time available under any
Enhancement for any Series for payment to Certificateholders shall constitute
the property of the Trust (the "Trust Property").
Section 2.2 Acceptance by Trustee.
(a) The Trustee hereby acknowledges its acceptance, on behalf of the Trust,
of all right, title and interest previously held by the Transferor in, to and
under the Trust Property and declares that it shall maintain such right, title
and interest, upon the Trust herein set forth, for the benefit of all
Certificateholders and the other Beneficiaries.
(b) The Trustee shall have no power to create, assume or incur indebtedness
or other liabilities in the name of the Trust other than as contemplated in this
Agreement.
Section 2.3 Representations and Warranties of the Transferor. The
Transferor hereby represents and warrants to the Trustee, on behalf of the
Trust, as of the Initial Closing Date and, with respect to any Series of
Certificates, as of the date of the related Supplement and the related Closing
Date for such Series:
(a) Organization and Good Standing. The Transferor is a corporation duly
organized and validly existing in good standing under the laws of the State of
Delaware and has the corporate power and authority and legal right to own its
properties and conduct its business as such properties are presently owned and
such business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement and the Purchase Agreement and to execute and
deliver to the Trustee the Certificates pursuant hereto.
(b) Due Qualification. The Transferor is duly qualified to do business and
is in good standing (or is exempt from such requirements) as a foreign
corporation in any state required in order to conduct business, and has obtained
all necessary licenses and approvals with respect to the Transferor required
under federal, Minnesota and Delaware law.
(c) Due Authorization. The execution and delivery of this Agreement and
the Purchase Agreement and the consummation of the transactions provided for
herein and therein, have been duly authorized by the Transferor by all necessary
corporate action on its part.
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(d) Binding Obligation. Each of this Agreement and the Purchase Agreement,
and the consummation of the transactions provided for herein and therein,
constitutes a legal, valid, and binding obligation of the Transferor,
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereinafter in effect, affecting the enforcement of
creditors' rights in general and as such enforceability may be limited by
general principles of equity (whether considered in a proceeding at law or in
equity).
(e) No Conflicts. The execution and delivery of this Agreement and the
Purchase Agreement and the performance of the transactions contemplated hereby
and thereby, do not (i) contravene the Transferor's certificate of incorporation
or bylaws, (ii) violate any material provision of law applicable to it or
require any filing (except for the filings under the UCC), registration, consent
or approval under, any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to the
Transferor, except for such filings, registrations, consents or approvals as
have already been obtained and are in full force and effect.
(f) No Violation. The execution and delivery of this Agreement and the
Purchase Agreement and the execution and delivery to the Trustee of the
Certificates, the performance of the transactions contemplated by this Agreement
and the Purchase Agreement and the fulfillment of the terms hereof and thereof
will not violate any Requirements of Law applicable to the Transferor, will not
violate, result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a default under,
any Requirement of Law applicable to the Transferor or any material indenture,
contract, agreement, mortgage, deed of trust or other material instrument to
which the Transferor is a party or by which it or its properties are bound.
(g) No Proceedings. There are no proceedings or investigations pending or,
to the best knowledge of the Transferor, threatened against the Transferor,
before any Governmental Authority (i) asserting the invalidity of this Agreement
and the Purchase Agreement, (ii) seeking to prevent the consummation of any of
the transactions contemplated hereby or thereby, (iii) seeking any determination
or ruling that would materially and adversely affect the performance by the
Transferor of its obligations thereunder, (iv) seeking any determination or
ruling that would materially and adversely affect the validity or enforceability
thereof or (v) seeking to affect adversely the tax attributes of the Trust.
(h) All Consents Required. All approvals, authorizations, consents, orders
or other actions of any Governmental Authority required in connection with the
execution and delivery of this Agreement, the Purchase Agreement and the
Certificates, the performance of the transactions contemplated by this Agreement
and the Purchase Agreement and the fulfillment of the terms hereof and thereof,
have been obtained.
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(i) Record of Accounts. As of the Initial Closing Date, in the case of the
Initial Accounts, as of the applicable Addition Date, in the case of the
Additional Accounts, and, as of the applicable Removal Date, in the case of
Removed Accounts, Schedule 1 to this Agreement is an accurate and complete
listing in all material respects of all the Accounts as of the Cut-off Date, the
applicable Additional Cut-off Date or the applicable Removal Date, as the case
may be, and the information contained therein with respect to the identity of
such Accounts and the Receivables existing thereunder is true and correct in all
material respects as of the Cut-off Date, such applicable Additional Cut-off
Date or such Removal Date, as the case may be.
(j) Place of Business. The principal executive offices of the Transferor
are in Minnesota, and the offices where the Transferor keeps its records
concerning the Receivables and related Contracts are in Minnesota.
(k) Pay Out Event. As of the Initial Closing Date, no Pay Out Event and no
condition that with the giving of notice and/or the passage of time would
constitute a Pay Out Event (a "Prospective Pay Out Event"), has occurred and is
continuing.
(l) Not an Investment Company. The Transferor is not an "investment
company" within the meaning of the Investment Company Act, or is exempt from all
provisions of such Act.
For the purposes of the representations and warranties contained in this
Section 2.3 and made by the Transferor on the Initial Closing Date,
"Certificates" shall mean the Certificates issued on the Initial Closing Date.
The representations and warranties set forth in this Section 2.3 shall survive
the transfer and assignment of the respective Receivables to the Trust, and
termination of the rights and obligations of the Servicer pursuant to Section
10.1. The Transferor hereby represents and warrants to the Trust, with respect
to any Series of Certificates, as of its Closing Date, unless otherwise stated
in the related Supplement, that the representations and warranties of the
Transferor set forth in Section 2.3 are true and correct as of such date (and
for the purposes of such representations and warranties, "Certificates" shall
mean the Certificates issued on the related Closing Date) and that each
representation and warranty set forth in this Section 2.3 and in Section
2.4(a)(i) with respect to the Agreement shall be made at such time with respect
to the applicable Supplement. Upon discovery by the Transferor, the Servicer or
a Responsible Officer of the Trustee of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the others.
Section 2.4 Representations and Warranties of the Transferor Relating to
the Agreement and the Receivables.
(a) Binding Obligation; Valid Transfer and Assignment. The Transferor
hereby represents and warrants to the Trustee, on behalf of the Trust, that, as
of the
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Initial Closing Date and with respect to any Series of Certificates, as
of the date of its related Supplement and Closing Date:
(i) The Purchase Agreement and this Agreement each constitutes the
legal, valid and binding obligation of the Transferor, enforceable against
the Transferor in accordance with its terms, except (A) as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect, affecting the enforcement of creditors' rights in general, and (B)
as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
(ii) The transfer of Receivables by the Transferor to the Trust under
this Agreement constitutes either (A) a valid transfer, assignment, setover
and conveyance to the Trust of all right, title and interest of the
Transferor in and to the Trust Property, and such Trust Property will be
held by the Trust free and clear of any Lien of any Person claiming through
or under the Transferor or any of its Affiliates except for (x) Permitted
Liens, (y) the interest of the Transferor as Holder of the Exchangeable
Transferor Certificate and any other Class of Certificates held by the
Transferor from time to time and (z) the Transferor's right, if any, to
interest accruing on, and investment earnings, if any, in respect of any
Interest Funding Account, any Principal Account, the Excess Funding
Account, or any Series Account, as provided in this Agreement or the
related Supplement, or (B) a grant of a first priority security interest
(as defined in the UCC as in effect in the Relevant UCC State) in, to and
under the Trust Property, which grant is enforceable with respect to the
existing Receivables and the proceeds thereof upon execution and delivery
of this Agreement, and which will be enforceable with respect to such
Receivables hereafter created and the proceeds thereof, upon such creation.
If this Agreement constitutes the grant of a security interest to the Trust
in such property, upon the filing of the financing statement described in
Section 2.1 and in the case of the Receivables hereafter created and
proceeds thereof, upon such creation, the Trust shall have a first priority
perfected security interest in such property, except for Permitted Liens.
Except as contemplated in this Agreement or any Supplement, neither the
Transferor nor any Person claiming through or under the Transferor shall
have any claim to or interest in the Collection Account, any Principal
Account, any Interest Funding Account, the Distribution Account, the Excess
Funding Account, any principal funding account for any Series or any other
Series Account, except for the Transferor's rights to receive interest
accruing on, and investment earnings in respect of, any such account as
provided in this Agreement (or, if applicable, any Series Account as
provided in any Supplement) and, if this Agreement constitutes the grant of
a security interest in such property, except for the interest of the
Transferor in such property as a debtor for purposes of the UCC as in
effect in the Relevant UCC State. The Purchase Agreement constitutes a
valid transfer, assignment, set-over and conveyance to the
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Transferor of all right, title and interest of Green Tree in and to the
Receivables and the Collateral Security purported to be sold thereunder,
whether then existing or thereafter created in the applicable Accounts, and
the proceeds thereof.
(iii) The Transferor is not insolvent and will not be rendered
insolvent upon the transfer of the Receivables to the Trust.
(iv) All consents, licenses, approvals or authorizations of or
registrations or declarations with any Governmental Authority required in
connection with the transfer of Trust Property to the Trust have been
obtained.
(v) Each Receivable and all other Trust Property existing on the first
Closing Date or, in the case of Additional Accounts, on the applicable
Addition Date, and on each Receivables Transfer Date, has been conveyed to
the Trust free and clear of any Lien and in compliance with all applicable
Requirements of Law in all material respects.
(vi) With respect to each Receivable and all other Trust Property
existing on the Initial Closing Date or, in the case of Additional
Accounts, on the applicable Addition Date, and on each Transfer Date, all
consents, licenses, approvals or authorizations of or registrations or
declarations with any Governmental Authority required to be obtained,
effected or given by the Transferor in connection with the conveyance of
such Receivable or other Trust Property to the Trust have been duly
obtained, effected or given and are in full force and effect.
(vii) On the Cut-off Date and each Closing Date, each Initial Account
is an Eligible Account or, if such Account is not an Eligible Account, such
Account is being removed from the Trust in accordance with Section 2.8 and,
in the case of Additional Accounts, on the applicable Additional Cut-off
Date and each subsequent Closing Date, each such Additional Account is an
Eligible Account or its being removed pursuant to Section 2.8.
(viii) On the Initial Closing Date, in the case of the Initial
Accounts, and, in the case of the Additional Accounts, on the applicable
Additional Cut-off Date, and on each Receivables Transfer Date, each
Receivable conveyed to the Trust on such date is an Eligible Receivable or,
if such Receivable is not an Eligible Receivable, such Receivable is
conveyed to the Trust in accordance with Section 2.9.
(b) Notice of Breach. The representations and warranties set forth in this
Section 2.4 shall survive the transfer and assignment of the respective
Receivables to the Trust. Upon discovery by the Transferor, the Servicer or a
Responsible Officer of the Trustee of a breach of any of the representations and
warranties set forth in
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this Section 2.4, the party discovering such breach
shall give prompt written notice to the other parties mentioned above. The
Transferor agrees to cooperate with the Servicer and the Trustee in attempting
to cure any such breach.
(c) Designation of Ineligible Receivables. In the event any representation
or warranty set forth in Section 2.4(a)(iii) through (viii) is not true and
correct as of the date specified therein with respect to any Receivable or
Account and such breach has a materially adverse effect on the
Certificateholders' Interest in such Receivable or Account, then, within 30 days
(or such longer period as may be agreed to by the Trustee) of the earlier to
occur of the discovery of any such event by the Transferor or the Servicer, or
receipt by the Transferor or the Servicer of written notice of any such event by
the Transferor or the Servicer, or receipt by the Transferor shall accept a
reassignment of such Receivable or, in the case of such an untrue representation
or warranty with respect to an Account, all Receivables in such Account, on the
Determination Date immediately succeeding the day of such discovery or notice on
the terms and conditions set forth in the next succeeding paragraph; provided,
however, that no such reassignment shall be required to be made with respect to
such Receivable if, by the end of such 30-day period (or such longer period as
may be agreed to by the Trustee), the breached representation or warranty shall
then be true and correct in all material respects and any material adverse
effect caused thereby shall have been cured.
The Transferor shall accept a reassignment of each such Receivable by
directing the Servicer to deduct, subject to the next sentence, the principal
amount of such Receivables (exclusive of their Discount Portions) from the Pool
Balance on or prior to the end of the Collection Period in which such
reassignment obligation arises. If, following such deduction, the Transferor
Interest would be less than the Minimum Transferor Interest on the immediately
preceding Determination Date (after giving effect to the allocations,
distributions, withdrawals and deposits to be made on the Distribution Date
following such Determination Date), then not later than 12:00 noon New York City
time on the day on which such reassignment occurs, the Transferor shall deposit
in the Collection Account in immediately available funds the amount (the
"Transfer Deposit Amount") by which the Transferor Interest would be less than
such Minimum Transferor Interest (up to the principal amount of such Receivables
exclusive of the Discount Portions thereof); provided that if the Transfer
Deposit Amount is not deposited as required by this sentence, then the amounts
to be deducted in respect of such Receivables shall only be deducted from the
Pool Balance to the extent that the Transferor Interest is not reduced below the
Minimum Transferor Interest and the Receivables, the amounts to be deducted in
respect of which have not been so deducted, shall not be reassigned to the
Transferor and shall remain part of the Trust. Upon reassignment of any such
Receivable, but only after payment by the Transferor of the Transfer Deposit
Amount, if any, the Trust shall automatically and without further action be
deemed to sell, transfer, assign, set over and otherwise convey to the
Transferor, without recourse, representation or warranty, all the right, title
and interest of the Trust in and to such Receivable, all Collateral Security and
all moneys due or to become due
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with respect thereto and all proceeds thereof. The Trustee shall execute such
documents and instruments of transfer or assignment as shall be furnished by the
Transferor and shall take such other actions as shall reasonably be requested by
the Transferor, to effect the conveyance of such Receivables pursuant to this
Section. The obligation of the Transferor to accept a reassignment of any such
Receivable and to pay any related Transfer Deposit Amount shall constitute the
sole remedy respecting the event giving rise to such obligation available to
Certificateholders (or the Trustee on behalf of Certificateholders).
(d) Reassignment of Trust Portfolio. In the event any representation and
warranty under subsections 2.3(a), (b) or (c) or 2.4(a)(i) or (ii) is not true
and correct as of the date specified therein with respect to any Receivable or
Account either the Trustee or the Holders of Investor Certificates evidencing
Undivided Interests aggregating more than 50% of the Invested Amount of such
Series, by notice then given in writing to the Transferor (and to the Trustee
and the Servicer, if given by the Investor Certificateholders of such Series),
may direct the Transferor to accept reassignment of an amount of Principal
Receivables equal to the face amount of the Invested Amount to be repurchased
(as specified below) within 60 days of such notice (or within such longer period
as may be specified in such notice), and the Transferor shall be obligated to
accept reassignment of such Receivables on a Distribution Date specified by the
Transferor (such Distribution Date, the "Reassignment Date") occurring within
such applicable period on the terms and conditions set forth below; provided,
however, that no such reassignment shall be required to be made, and no notice
of such reassignment may be given, if, at any time during such applicable
period, the representations and warranties contained in subsections 2.3(a), (b)
and (c) and subsections 2.4(a)(i) and (ii) shall then be true and correct in all
material respects. The Transferor shall, on the Transfer Date (in next day
funds) preceding the Reassignment Date, deposit an amount equal to the
reassignment deposit amount for such Series in the related Distribution Account
or Series Account, as provided in the related Supplement, for distribution to
the Investor Certificateholders pursuant to Article XII. The reassignment
deposit amount with respect to any Series, unless otherwise stated in the
related Supplement, shall be equal to (i) the Invested Amount of such Series at
the end of the day on the last day of the Monthly Period preceding the
Reassignment Date plus (ii) an amount equal to all interest accrued but unpaid
on the Investor Certificates of such Series at the applicable Certificate Rate
through the last day of the related interest accrual period, less the amount, if
any, previously allocated for payment of interest to the Certificateholders of
such Series on the related Distribution Date in the Monthly Period in which the
Reassignment Date occurs plus any other amounts accrued and owing as specified
in the applicable Supplement. Payment of the reassignment deposit amount with
respect to any Series, and all other amounts in the Distribution Account or the
applicable Series Account in respect of the preceding Monthly Period, shall be
considered a prepayment in full of the Receivables represented by the Investor
Certificates of such Series. On the Distribution Date following the Transfer
Date on which such amount has been deposited in full into the Distribution
Account or the applicable Series Account, the Receivables and all
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monies due or to become due with respect thereto and all proceeds of the
Receivables shall be released to the Transferor after payment of all amounts
otherwise due hereunder on or prior to such dates and the Trustee shall execute
and deliver such instruments of transfer or assignment, in each ease without
recourse, representation or warranty, as shall be prepared by and as are
reasonably requested by the Transferor to vest in the Transferor, or its
designee or assignee, all right, title and interest of the Trust in and to such
Receivables, all monies due or to become due with respect thereto and all
proceeds of such Receivables allocated to such Receivables pursuant to the
related Supplement. If the Trustee or the Investor Certificateholders of any
Series give notice directing the Transferor to accept reassignment as provided
above, the obligation of the Transferor to accept reassignment of the applicable
Receivables and pay the reassignment deposit amount pursuant to this subsection
2.4(d) shall constitute the sole remedy respecting a breach of the
representations and warranties contained in subsections 2.3(a), (b) and (c) and
2.4(a)(i) and (ii) available to the Investor Certificateholders of such Series
or the Trustee on behalf of the Investor Certificateholders of such Series. The
Trustee shall have no duty to conduct any affirmative investigation as to the
occurrence of any condition requiring the repurchase of any Receivable by the
Transferor pursuant to this Agreement or any Supplement or the eligibility of
any Receivable for purposes of this Agreement or any Supplement.
Section 2.5 Covenants of the Transferor. The Transferor hereby covenants
that:
(a) No Liens. Except for the conveyances hereunder or as provided in
Section 6.9, the Transferor will not sell, pledge, assign or transfer to any
other Person, or grant, create, incur, assume or suffer to exist any Lien on,
any Receivable or any other Trust Asset, whether now existing or hereafter
created, or any interest therein, or the Transferor's Interest or the
Exchangeable Transferor Certificate and the Transferor shall defend the right,
title and interest of the Trust in, to and under the Receivables and the other
Trust Assets, whether now existing or hereafter created, and such rights,
remedies, powers and privileges, against all claims of third parties claiming
through or under the Transferor.
(b) Receivables to be Chattel Paper, General Intangibles or Accounts. The
Transferor will take no action to cause any Receivable to be evidenced by any
instrument (as defined in the UCC as in effect in the Relevant UCC State),
except in connection with the enforcement or collection of a Receivable. Except
in such circumstances, the Transferor will take no action to cause any
Receivable to be anything other than "chattel paper," a "general intangible" or
an "account" (as defined in the UCC as in effect in the Relevant UCC State).
(c) Security Interests. Except for the conveyances hereunder, the
Transferor will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist any Lien, on any Receivable,
whether now existing or hereafter created, or any interest therein; the
Transferor will immediately
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notify the Trustee of the existence of any Lien on any Receivable; and the
Transferor shall defend the right, title and interest of the Trust in, to and
under the Receivables, whether now existing or hereafter created, against all
claims of third parties claiming through or under the Transferor; provided,
however, that nothing in this subsection 2.5(c) shall prevent or be deemed to
prohibit the Transferor from suffering to exist upon any of the Receivables any
Permitted Lien.
(d) Account Allocations. In the event that the Transferor is unable for
any reason to transfer Receivables to the Trust, then the Transferor agrees that
it shall allocate, after the occurrence of such event, payments on each Account
with respect to the principal balance of such Account first to the oldest
principal balance of such Account and to have such payments applied as
Collections in accordance with the terms of this Agreement. The parties hereto
agree that Interest Receivables, whenever created, accrued in respect of
Principal Receivables which have been conveyed to the Trust shall continue to be
a part of the Trust notwithstanding any cessation of the transfer of additional
Principal Receivables to the Trust and Collections with respect thereto shall
continue to be allocated and paid in accordance with the terms of this
Agreement.
(e) Delivery of Collections. In the event that the Transferor, Green Tree,
or any Affiliate thereof, receives Collections, the Transferor and Green Tree
agrees to deposit such Collections into the Collection Account as soon as
practicable after the receipt thereof, but in no event later than two Business
Days following the Date of Processing thereof.
(f) Conveyance of Receivables. The Transferor covenants and agrees that it
will not permit Green Tree to convey, assign, exchange or otherwise transfer any
Receivable, to any Person other than the Transferor prior to the termination of
this Agreement pursuant to Article XII; provided, however, that the Transferor
shall not be prohibited hereby from permitting Green Tree to convey, assign,
exchange or otherwise transfer a Receivable in connection with a transaction in
which Green Tree and its successor agree to comply with provisions substantially
similar to those of Section 7.2.
(g) Notice of Liens. The Transferor shall notify the Trustee promptly
after becoming aware of any Lien on any Receivable other than Permitted Liens
and Participation Interests.
(h) Enforcement of Purchase Agreement. The Transferor agrees to take all
action necessary and appropriate to enforce its rights and claims under the
Purchase Agreement.
(i) Separate Business. The Transferor will not permit its assets to be
commingled with those of Green Tree and the Transferor shall maintain separate
corporate records, books of accounts and bank accounts from those of Green Tree.
The Transferor will not conduct its business in the name of Green Tree and will
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cause Green Tree to conduct its business solely in its own name so as not to
mislead others as to the identity of the entity with which those others are
concerned. The Transferor will provide for its own operating expenses and
liabilities from its own funds, except that the organizational expenses of the
Transferor may be paid by Green Tree. The Transferor will not hold itself out,
or permit itself to be held out, as having agreed to pay, or as generally being
liable for, the debts of Green Tree. The Transferor shall cause Green Tree not
to hold itself out, or permit itself to be held out, as having agreed to pay, or
as generally being liable for, the debts of the Transferor except that the
organizational expenses of the Transferor may be paid by Green Tree and that
Green Tree will contribute to the Transferor on the Closing Date a demand note.
The Transferor will maintain an arm's length relationship with Green Tree with
respect to any transactions between the Transferor, on the one hand, and Green
Tree, on the other.
(j) Purchase Agreement Notices. The Transferor (i) shall promptly give the
Trustee copies of any notices, reports or certificates given or delivered to the
Transferor under the Purchase Agreement, (ii) shall not without the consents,
approvals and opinions, if any, required by Section 13.1, as if Section 13.1
related to the Purchase Agreement rather than this Agreement, enter into any
amendment, supplement or other modification to, or waiver of any provision of,
the Purchase Agreement and (iii) shall not permit the addition or removal of a
Receivable to or from the operation of the Purchase Agreement unless there is a
corresponding right or obligation of the Transferor to add or remove such
Receivable to or from the Trust.
(k) Minimum Net Worth. The Transferor shall not (i) assign, sell, convey,
pledge, transfer, reconvey, cancel, forgive, compromise or otherwise dispose of
any Demand Note held by it, in whole or in part, (ii) make any distribution
unless the net worth of the Transferor following such distribution shall be at
least equal to the Minimum Net Worth (for the purpose of the determination of
net worth: (A) any Demand Note held by the Transferor shall be valued at par,
(B) any interest in the Trust held by the Transferor, including the Exchangeable
Transferor Certificate and any Transferor Retained Certificates, shall be valued
at zero, and (C) investments shall be valued at their respective purchase prices
plus accrued interest), or (iii) except as specifically permitted by this
Agreement, sell, transfer, assign, give or encumber by operation of law or
otherwise any of its assets.
Section 2.6 Addition of Accounts.
(a) If, as of the close of business on the last day of any Collection
Period, the Transferor Interest is less than the Minimum Transferor Interest,
then the Transferor shall, within 10 Business Days following the end of such
Collection Period, designate and transfer to the Trust the Receivables (and the
related Collateral Security) of additional Eligible Accounts of the Transferor
to be included as Accounts in a sufficient amount such that after giving effect
to such addition the Transferor Interest exceeds the Minimum Transferor
Interest.
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(b) The Transferor may from time to time, at its sole discretion, subject
to the conditions specified in paragraph (d) below, voluntarily designate
additional Eligible Accounts to be included as Accounts and transfer to the
Trust the Receivables (and the related Collateral Security) of such Additional
Accounts.
(c) Receivables and Collateral Security from such Additional Accounts
shall be sold to the Trust effective on a date (each an "Addition Date")
specified in a written notice provided by the Transferor (or the Servicer on its
behalf) to the Trustee, the Rating Agencies, any Agent and any Enhancement
Providers specifying the Additional Cut-off Date and the Addition Date for such
Additional Accounts (each an "Addition Notice") on or before the fifth Business
Day but not more than the 30th day prior to the related Addition Date or, if the
Automatic Addition Condition is satisfied, on the Determination Date following
the Monthly Period in which such Addition Dates occur (the "Notice Date"). An
Addition Notice may relate to one or more Accounts added on one or more Addition
Dates.
(d) The Transferor shall be permitted to convey to the Trust the
Receivables and all Collateral Security related thereto in any Additional
Accounts designated by the Transferor as such pursuant to Section 2.6(a) or (b)
only upon satisfaction of each of the following conditions on or prior to the
related Notice Date (except for the condition in clause (vii), if applicable,
which shall be satisfied on or before the tenth Business Day after such Notice
Date):
(i) the Transferor shall have provided the Trustee, any Agent, the
Rating Agencies and any Enhancement Providers with a timely Addition
Notice;
(ii) such Additional Accounts shall all be Eligible Accounts;
(iii) the Transferor shall have delivered to the Trustee a duly
executed written assignment (including an acceptance by the Trustee) in
substantially the form of Exhibit F (the "Assignment") covering the
Receivables in the Accounts specified in the Addition Notice and the
computer file or microfiche or written list required to be delivered
pursuant to Section 2.1;
(iv) the Transferor shall, to the extent required by Section 4.3,
have deposited in the Collection Account all Collections with respect to
such Additional Accounts since the Additional Cut-off Date;
(v) (A) no selection procedures reasonably believed by the Transferor
to be adverse to the interests of the Beneficiaries shall have been used in
selecting such Additional Accounts; (B) the list of Additional Accounts
delivered pursuant to clause (iii) above shall be true and correct in all
material respects as of the Additional Cut-off Date and (C) as of each of
the
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Notice Date and the Addition Date, neither Green Tree nor the Transferor
shall have been insolvent nor shall any of them have been made insolvent by
such transfer nor shall any of them be aware of any pending insolvency;
(vi) if the Automatic Addition Condition is not satisfied with
respect to such addition, the Rating Agency Condition shall have been
satisfied with respect to such addition;
(vii) If (A) one or more of the Additional Accounts specified in such
Addition Notice will contain Receivables secured by a security interest in
a type of Product that has not been previously financed in the Floorplan
Business or (B) one or more of the Additional Accounts is supported by a
Floorplan Agreement with a Manufacturer that, as of the related Addition
Date, is not an Existing Manufacturer, then, whether or not the Automatic
Condition is satisfied, the Rating Agency Condition shall have been
satisfied in respect of the addition of each Additional Account specified
in clauses (A) and (B) on or prior to the related Addition Date;
(viii) the addition of the Receivables arising in such Additional
Accounts shall not result in the occurrence of a Pay Out Event;
(ix) the Transferor shall have delivered to the Trustee and any
Enhancement Providers a certificate of a Vice President or more senior
officer confirming (A) the items set forth in paragraphs (ii) through
(viii) above and (B) that the Transferor reasonably believes that the
addition of the Receivables arising in such Additional Accounts will not
result in the occurrence of a Pay Out Event; and
(x) on or before each Notice Date, the Transferor shall have
delivered to the Trustee and any Enhancement Providers (A) an Opinion of
Counsel with respect to the Receivables in the Additional Accounts added
since the last delivery of such opinion substantially in the form of
Exhibit E-3 and (B) except in the case of an addition required by Section
2.6(a), a Tax Opinion with respect to such addition; provided, however,
that such Opinion of Counsel and Tax Opinion will be required to be
delivered no more frequently than annually; provided further that, unless
the Rating Agency Condition is satisfied, such Opinion of Counsel and Tax
Opinion shall be from outside counsel if the rating of the unsecured long-
term debt of Green Tree is below investment grade.
(e) The Transferor hereby represents and warrants as of the applicable
Addition Date as to the matters set forth in Section 2.6(d)(v). Upon discovery
by the Transferor, the Servicer, any Agent, a Responsible Officer of the Trustee
or any Enhancement Providers of a breach of the foregoing representations and
warranties, the party discovering the breach shall give prompt written notice to
the other parties, to any Agent and to any Enhancement Providers.
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Section 2.7. Removal of Eligible Accounts.
(a) On each Determination Date, the Transferor shall have the right to
remove Accounts, including all amounts then held by the Trust or thereafter
received by the Trust in respect of the Accounts being removed, from the Trust
in the manner prescribed in Section 2.7(b). The termination of an Account by a
Dealer upon such Dealer's payment in full of the related Account shall not be a
removal of such Account under this Section 2.7.
(b) To remove Accounts, including all amounts then held by the Trust or
thereafter received by the Trust in respect of the Accounts being removed, the
Transferor (or the Servicer on its behalf) shall take the following actions and
make the following determinations:
(i) not less than five Business Days prior to the Removal Date,
furnish to the Trustee, any Agent, any Enhancement Providers and the Rating
Agencies a written notice (the "Removal Notice") specifying the
Determination Date (which may be the Determination Date on which such
notice is given) on which removal of the Receivables of one or more
Accounts (the "Removed Accounts") will occur (a "Removal Date");
(ii) from and after such Removal Date, cease to transfer to the Trust
any and all Receivables arising in such Removed Accounts;
(iii) represent and warrant that the removal of any such Eligible
Account on any Removal Date shall not, in the reasonable belief of the
Transferor, (w) cause a Pay Out Event to occur, (x) cause the Transfere
Interest, calculated as a percentage of the aggregate amount of Principal
Receivables, to be less than the Minimum Transferor Interest on such
removal Date, (y) cause the aggregate amount of Principal Receivables to be
less than the Minimum Aggregate Principal Receivables or (z) result in the
failure to make any payment specified in a Supplement for any Series;
(iv) represent and warrant that no selection procedures reasonably
believed by the Transferor to be adverse to the interests of the
Certificateholders or the Beneficiaries were utilized in selecting the
Accounts to be removed;
(v) satisfy the Rating Agency Condition with respect to such removal;
(vi) deliver to the Trustee, each Rating Agency, any Agent and any
Enhancement Providers a Tax Opinion, dated the Removal Date, with respect
to such removal;
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(vii) on or before the related Removal Date, deliver to the Trustee,
any Agent and any Enhancement Providers an Officer's Certificate confirming
the items set forth in clauses (iii) through (v) above and confirming that
the Transferor reasonably believes that the removal of the Removed Accounts
will not result in the occurrence of a Pay Out Event; the Trustee may
conclusively rely on such Officer's Certificate and shall have no duty to
make inquiries with regard to the matters set forth therein and shall incur
no liability in so relying; and
(viii) on or before the fifth Business Day after the Removal Date,
furnish to the Trustee a computer file, microfiche list or other list of
the Removed Accounts that were removed on the Removal Date, specifying for
each Removed Account as of the date of the Removal Notice its number, the
aggregate amount outstanding in such Removed Account and the aggregate
amount of Principal Receivables therein and represent that such computer
file, microfiche list or other list of the Removed Accounts is true and
complete in all material respects.
No Accounts shall be so removed if such removal will result in a reduction or
withdrawal of the rating of any outstanding Series or Class by the applicable
Rating Agency.
(c) Subject to Section 2.7(b), on the Removal Date with respect to any
such Removed Account, such Removed Account shall be deemed removed from the
Trust for all purposes. After the Removal Date and upon the written request of
the Servicer, the Trustee shall deliver to the Transferor a reassignment in
substantially the form of Exhibit F (the "Reassignment").
Section 2.8. Removal of Ineligible Accounts.
(a) On or prior to the tenth Business Day following the date on which an
Account becomes an Ineligible Account (which date shall be deemed to be the
"Removal Commencement Date"), the Transferor shall commence removal of the
Receivable of such Ineligible Account in the manner prescribed in Section
2.8(b).
(b) With respect to each Account that becomes an Ineligible Account, the
Transferor (or the Servicer on its behalf) shall take the following actions and
make the following determinations:
(i) furnish to the Trustee, any Agent and any Enhancement Providers a
Removal Notice specifying the Removal Commencement Date and the Ineligible
Accounts to be removed (the "Designated Accounts");
(ii) determine on the Removal Commencement Date with respect to such
Designated Accounts the aggregate balance of Principal Receivables in
respect of each Designated Account (the "Designated Balance") and amend
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Schedule 1 by delivering to the Trustee a computer file or microfiche or
written list containing a true and complete list of the Removed Accounts
specifying for each such Account, as of the Removal Commencement Date, its
account number, the aggregate amount of Receivables outstanding in such
Account and the Designated Balance;
(iii) from and after such Removal Commencement Date, cease to
transfer to the Trust any and all Receivables arising in such Designated
Accounts;
(iv) from and after such Removal Commencement Date, allocate
Collections of Principal Receivables in respect of each Designated Account,
first to the oldest outstanding principal balance of such Designated
Account, until the Removal Date with respect thereto; and
(v) on each Business Day from and after such Removal Commencement
Date to and until the related Removal Date, allocate (A) to the Trust (to
be further allocated pursuant to the terms of this Agreement), Defaulted
Receivables and Collections of Interest Receivables in respect of each
Designated Account, based on the ratio of the aggregate amount of Principal
Receivables in all Designated Accounts owned by the Trust on such Business
Day to the total aggregate amount of Principal Receivables in all such
Designated Accounts on such Business Day and (B) to the Transferor, the
remainder of the Defaulted Receivables and Collections of Interest
Receivables in all such Designated Accounts on such Business Day.
(c) On the Removal Date with respect to any such Account to be removed,
the Transferor shall cease to allocate any Collections therefrom in accordance
herewith and such Account shall be deemed a Removed Account. After the Removal
Date and upon the written request of the Servicer, the Trustee shall deliver to
the Transferor a Reassignment.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.1 Acceptance of Appointment and Other Matters Relating to the
Servicer.
(a) Green Tree agrees to act as the Servicer under this Agreement. The
Investor Certificateholders of each Series by their acceptance of the related
Certificates consent to Green Tree acting as Servicer. Notwithstanding the
foregoing or any other provisions of this Agreement or any Supplement, the
Investor Certificateholders consent to an Affiliate of Green Tree acting as
Servicer hereunder; provided, that Green Tree will remain jointly and severally
liable with such Affiliate for the obligations of the Servicer hereunder.
(b) The Servicer shall service and administer the Receivables and shall
collect payments due under the Receivables in accordance with its customary and
usual servicing procedures and the Financing Guidelines and shall have full
power and authority, acting alone or through any party properly designated by it
hereunder, to do any and all things in connection with such servicing and
administration that it may deem necessary or desirable. Without limiting the
generality of the foregoing and subject to Section 10.1, the Servicer is hereby
authorized and empowered (i) to make withdrawals from the Collection Account as
set forth in this Agreement, (ii) unless such power and authority is revoked by
the Trustee on account of the occurrence of a Servicer Default pursuant to
Section 10.1, to instruct the Trustee in writing to make withdrawals and
payments, from any Interest Funding Account, the Excess Funding Account, any
Principal Account and any Series Account, in accordance with such instructions
as set forth in this Agreement, (iii) unless such power and authority is revoked
by the Trustee on account of the occurrence of a Servicer Default pursuant to
Section 10.1, to instruct the Trustee in writing to take any action permitted or
required under any Enhancement at such time as set forth in this Agreement and
any Supplement, (iv) to execute and deliver, on behalf of the Trust for the
benefit of the Certificateholders, 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 Receivables and, after the
delinquency of any Receivable and to the extent permitted under and in
compliance with applicable law and regulations, to commence enforcement
proceedings with respect to such Receivables, (v) to make any filings, reports,
notices, applications, registrations with, and to seek any consents or
authorizations from, the Securities and Exchange Commission and any state
securities authority on behalf of the Trust as may be necessary or advisable to
comply with any federal or state securities or reporting requirements and (vi)
to delegate certain of its service, collection, enforcement and administrative
duties hereunder with respect to the Receivables to any Person who agrees to
conduct such duties in accordance with the Servicer's customary and usual
servicing procedures;
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provided, that the Servicer shall remain jointly and severally liable for such
duties with such Person and shall give notice to the Trustee of any such
delegation. The Trustee agrees that it shall promptly follow the instructions of
the Servicer to withdraw funds from the Collection Account, any Principal
Account, any Interest Funding Account, the Excess Funding Account, or any Series
Account and to take any action required under any Enhancement at such time as
required under this Agreement. The Trustee shall execute at the Servicer's
written request such documents prepared by the Transferor and acceptable to the
Trustee as the Servicer certifies are necessary or appropriate to enable the
Servicer to carry out its servicing and administrative duties hereunder.
(c) The Servicer shall not be obligated to use separate servicing
procedures, offices or employees for servicing the Receivables from the
procedures, offices and employees used by the Servicer in connection with
servicing other receivables.
(d) The Servicer shall comply with and perform its servicing obligations
with respect to the Financing Agreements relating to the Accounts and the Xxxxx
xxxx Guidelines, except insofar as any failure to so comply or perform would not
materially and adversely affect the rights of the Trust or any of the
Beneficiaries. Subject to compliance with all Requirements of Law and subject to
the requirements of Section 3.1(b), the Servicer may change the terms and
provisions of the Wholesale Financing Agreements, the Floorplan Agreements, the
Asset-Based Financing Agreements or the Financing Guidelines in any respect
(including the calculation of the amount or the timing of charge-offs and the
rate of the finance charge assessed thereon), only if as a result of such
change, in this reasonable judgment of the Servicer, no Pay Out Event will
occur.
Section 3.2 Servicing Compensation. As compensation for its servicing
activities hereunder and reimbursement for its expenses as set forth in the
immediately following paragraph, the Servicer shall be entitled to receive a
servicing fee in respect of each day prior to the termination of the Trust
pursuant to Section 12.1 (the "Servicing Fees"), payable in arrears on each date
and in the manner specified in the applicable Supplement, equal to the product
of (i) a fraction, the numerator of which is the actual number of days in the
measuring period specified in the applicable Supplement and the denominator of
which is the actual number of days in the year, (ii) the weighted average Series
Servicing Fee Percentage for all Outstanding Series (based upon the Series
Servicing Fee Percentage for each Series and the Invested Amount of such Series)
and (iii) the daily average aggregate Outstanding Balance of all Principal
Receivables over the term of such measuring period. The share of the Servicing
Fee allocable to each Series with respect to any date of payment shall be equal
to the product of (i) a fraction, the numerator of which is the actual number of
days in the measuring period specified in the applicable Supplement and the
denominator of which is the actual number of days in the year, (ii) the
applicable Series Servicing Fee Percentage for such Series and (iii) the
Invested Amount of such Series, as appropriate, as of the date of determination
for such payment as specified in the applicable Supplement. The remainder of the
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Servicing Fee shall be paid by the Transferor, or retained by the Servicer as
provided in Article IV, and in no event shall the Trust, the Trustee, any
Enhancement Provider, or the Investor Certificateholders be liable for the share
of the Servicing Fee to be paid by the Transferor.
The Servicer shall be responsible for its own expenses, which shall include
the amounts due to the Trustee pursuant to Section 11.5 and the reasonable fees
and disbursements of independent public accountants and all other expenses
incurred by the Servicer in connection with its activities hereunder; provided,
that the Servicer shall not be liable for any liabilities, costs or expenses of
the Trust, the Investor Certificateholders or the Certificate Owners arising
under any tax law, including without limitation any federal, state or local
income or franchise taxes or any other tax imposed on or measured by income (or
any interest, penalties or additions with respect thereto or arising from a
failure to comply therewith). In the event that the Servicer fails to pay any
amounts due to the Trustee pursuant to Section 11.5, the Trustee shall be
entitled to deduct and receive such amounts from the Servicing Fee prior to the
payment thereof to the Servicer and the obligations of the Trust to pay any such
amounts shall thereby be fully satisfied. The Servicer shall be required to pay
such expenses for its own account and shall not be entitled to any payment
therefor other than the Servicing Fee.
Section 3.3 Representations and Warranties of the Servicer. Green Tree,
as initial Servicer, hereby makes, and any Successor Servicer by its appointment
hereunder shall make, the following representations and warranties on which the
Trustee has relied in accepting the Receivables in trust and in authenticating
the Certificates issued on the Initial Closing Date:
(a) Organization and Good Standing. The Servicer is a corporation duly
organized, validly existing and in good standing under the laws of its state of
incorporation and has the corporate power, authority and legal right to own its
properties and conduct its business as such properties are presently owned and
such business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement.
(b) Due Qualification. The Servicer is duly qualified to do business and
is in good standing (or is exempt from such requirements) as a foreign
corporation in any state where such qualification is necessary in order to
service the Receivables as required by this Agreement and has obtained all
necessary licenses and approvals as required under Federal and state law in
order to service the Receivables as required by this Agreement, and if the
Servicer shall be required by any Requirement of Law to so qualify or register
or obtain such license or approval, then it shall do so except where the failure
to obtain such license or approval does not materially affect the Servicer's
ability to perform its obligations hereunder or the enforceability of the
Receivables.
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(c) Due Authorization. The execution and delivery of this Agreement and
the consummation of the transactions provided for herein, have been duly
authorized by the Servicer by all necessary corporate action on the part of the
Servicer.
(d) Binding Obligation. This Agreement and the consummation of the
transactions provided for herein, constitutes a legal, valid and binding
obligation of the Servicer, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereinafter in effect,
affecting the enforcement of creditors' rights in general and as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(e) No Violation. The execution and delivery of this Agreement by the
Servicer, and the performance of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof applicable to the Servicer, will not
violate, result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a default under,
any Requirement of Law applicable to the Servicer or any material indenture,
contract, agreement, mortgage, deed of trust or other material instrument to
which the Servicer is a party or by which it is bound.
(f) No Proceedings. There are no proceedings or investigations pending
or, to the best knowledge of the Servicer, threatened against the Servicer
before any Governmental Authority (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this Agreement, (iii)
seeking any determination or ruling that would materially and adversely affect
the performance by the Servicer of its obligations under this Agreement, (iv)
seeking any determination or ruling that would materially and adversely affect
the validity or enforceability of this Agreement or (v) seeking to affect
adversely the tax attributes of the Trust.
(g) Compliance with Requirements of Law. The Servicer shall duly satisfy
all obligations on its part to be fulfilled under or in connection with each
Receivable, will maintain in effect all qualifications required under
Requirements of Law in order to service properly each Receivable and will comply
in all material respects with all other Requirements of Law in connection with
servicing each Receivable the failure to comply with which would have a material
adverse effect on the Certificateholders or any Enhancement Provider.
(h) Protection of Certificateholders' Rights. The Servicer shall take no
action which, nor omit to take any action the omission of which, would impair
the rights of Certificateholders in any Receivable or the rights of any
Enhancement Provider, nor shall it reschedule, revise or defer payments due on
any Receivable except in accordance with Green Tree's usual and customary
collection procedures.
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(i) All Consents Required. All approvals, authorizations, consents,
orders or other actions of any Governmental Authority required in connection
with the execution and delivery of this Agreement and the performance of the
transactions contemplated by this Agreement and the fulfillment of the terms
hereof, have been obtained; provided, however, that the Servicer makes no
representation or warranty regarding State securities or "Blue Sky" laws in
connection with the distribution of the Certificates.
(j) Rescission or Cancellation. The Servicer shall not permit any
rescission or cancellation of any Receivable except as ordered by a court of
competent jurisdiction or other Governmental Authority or in accordance with
Green Tree's usual and customary collection policies or the normal operating
procedures of the Servicer.
(k) Negative Pledge. Except for the conveyance hereunder to the Trustee,
the Servicer will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist any Lien on, any Receivable sold
and assigned to the Trust, whether now existing or hereafter created, or any
interest therein, and the Servicer shall defend the rights, title and interest
of the Trust in, to and under any Receivable sold and assigned to the Trust,
whether now existing or hereafter created, against all claims of third parties
claiming through or under the Seller or the Servicer.
(l) Principal Place of Business. The Servicer shall at all times maintain
its principal executive offices within the United States.
Section 3.4 Reports and Records for the Trustee.
(a) Daily Records. Upon reasonable prior notice by the Trustee, the
Servicer shall make available at an office of the Servicer (or other location
designated by the Servicer if such records are not accessible by the Servicer
at an office of the Servicer) selected by the Servicer for inspection by the
Trustee or its agent (reasonably acceptable to the Servicer) on a Business Day
during the Servicer's normal business hours a record setting forth (i) the
Collections on the Receivables and (ii) the amount of Receivables for the
Business Day preceding the date of the inspection. The Servicer shall, at all
times, maintain its computer files with respect to the Receivables in such a
manner so that the Receivables may be specifically identified and, upon
reasonable prior request of the Trustee, shall make available to the Trustee, at
an office of the Servicer (or other location designated by the Servicer if such
computer files are not located at an office of the Servicer) selected by the
Servicer, on any Business Day of the Servicer during the Servicer's normal
business hours any computer programs necessary to make such identification.
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(b) Daily Report.
(i) On each Business Day the Servicer shall prepare a completed Daily
Report.
(ii) The Servicer shall deliver to the Trustee and the Paying Agent
the Daily Report by 3:00 p.m. (New York City time) on each Business Day
with respect to activity in the Receivables for the prior Business Day (or,
in the case of a Daily Report delivered on the second Business Day
following a Saturday, Sunday or other non-Business Day, the aggregate
activity for the preceding Business Day and such preceding non-Business
Days).
(iii) Upon discovery of any error or receipt of notice of any error in
any Daily Report, the Servicer, the Transferor and the Trustee shall
arrange to confer and shall agree upon any adjustments necessary to correct
any such errors. If any such error is material, the Servicer or the
Trustee, as the case may be, shall retain all Collections which would
otherwise be paid from the Trust (or such lesser amount as the Trustee and
the Servicer shall agree to be necessary to cover any such error) in the
Collection Account until such material error is corrected. Unless the
Trustee has received written notice of any error or discrepancy, the
Trustee may rely on each Daily Report delivered to it for all purposes
hereunder.
(c) Settlement Statement. On the second Business Day prior to each
Distribution Date, the Servicer shall, prior to 3:00 p.m. (New York City time)
on such day, deliver to the Trustee and the Paying Agent the Settlement
Statement for the related Monthly Period substantially in the form of Exhibit C
hereto, including the following information (which, in the case of clauses
(iii), (iv) and (v) below, will be stated on the basis of an original principal
amount of $1,000 per Certificate): (i) the aggregate amount of Collections
received in the Collection Account for the Monthly Period preceding such
Determination Date and the aggregate amount of Interest Collections and the
aggregate amount of Principal Collections processed during such Monthly Period;
(ii) with respect to the preceding Monthly Period for each Series of
Certificates, the aggregate amount of the applicable Investor Percentage of
Principal Collections, and the aggregate amount of the applicable Investor
Percentage of Interest Collections; (iii) for each Series and for each Class
within any such Series, the total amount to be distributed to Investor
Certificateholders on the next succeeding Distribution Date; (iv) for each
Series and for each Class within any such Series, the amount of such
distribution to Certificateholders allocable to principal; (v) for each Series
and for each Class within any such Series, the amount of such distribution to
Certificateholders allocable to interest; (vi) for each Series and each Class
within a Series, the Investor Default Amount for the immediately preceding
Monthly Period; (vii) for each Series and each Class within a Series, the amount
of the Investor Charge-Offs and the amount of the reimbursements of Investor
Charge-Offs for such Distribution Date; (viii) for each Series, the Servicing
Fee for such Distribution Date; (ix) for each Series, the existing deficit
controlled
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amortization amount, if applicable; (x) the Aggregate Principal Receivables in
the Trust at the close of business on the last day of the Monthly Period
preceding such Distribution Date; (xi) for each Series, the Invested Amount at
the close of business on the last day of the Monthly Period immediately
preceding such Distribution Date; (xii) the available amount of any Enhancement
for each Class of each Series, if any; (xiii) for each Series and each Class
within a Series, the Pool Factor as of the end of the related Monthly Period;
(xiv) whether a Pay Out Event or a Prospective Pay Out Event with respect to any
Series shall have occurred during or with respect to the related Monthly Period;
(xv) the amount of any Adjustment Payments for the Related Monthly Period; and
(xvi) such other calculations as may be required by any Supplement. The Trustee
shall be under no duty to recalculate, verify or recompute the information
supplied to it under this Section 3.4 or such other matters as are set forth in
any Settlement Statement. The Servicer shall also provide a copy of the
Settlement Statement in a prompt manner to each Rating Agency.
Section 3.5 Annual Servicer's Certificate. The Servicer will deliver, in
accordance with Section 13.5, to the Trustee, any Enhancement Provider and each
Rating Agency, on or before March 31 of each year, beginning in 1997, an
Officer's Certificate substantially in the form of Exhibit D stating that (a) a
review of the activities of the Servicer during the preceding fiscal year and of
its performance under this Agreement was made under the supervision of the
officer signing such certificate and (b) to such officer's knowledge, based on
such review, the Servicer has fully performed all its obligations under this
Agreement throughout such period, or, if there has been a default in the
performance of any such obligation, specifying each such default known to such
officer and the nature and status thereof. A copy of such certificate may be
obtained by any Investor Certificateholder by a request in writing to the
Trustee addressed to the Corporate Trust Office.
Section 3.6 Annual Independent Accountants' Servicing Report.
(a) On or before March 31 of each year, commencing March 31, 1997, the
Servicer shall cause a firm of nationally recognized independent public
accountants (who may also render other services to the Servicer or the
Transferor) to furnish a report with respect to the prior fiscal year to the
Trustee, any Enhancement Provider and each Rating Agency, to the effect that
such firm has applied certain procedures, agreed upon with the Servicer and the
Trustee and substantially as set forth in Exhibit I which would re-perform
certain accounting procedures performed by the Servicer pursuant to certain
documents and records relating to the servicing of the Receivables under this
Agreement. In addition, each report shall set forth the agreed upon procedures
performed and the results of such procedures.
(b) On or before March 31 of each year, commencing March 31, 1997, the
Servicer shall cause a firm of nationally recognized independent certified
public accountants (who may also render other services to the Servicer or the
Transferor) to furnish a report to the Trustee, any Enhancement Provider and
each Rating Agency to the effect that they have compared the mathematical
calculations set forth
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in each of the monthly certificates forwarded by the Servicer pursuant to
subsection 3.4(c) during the period covered by such report with the computer
reports which were the source of such amounts and that on the basis of such
comparison, such amounts are in agreement, except for such exceptions as they
believe to be immaterial and such other exceptions as shall be set forth in such
report.
(c) A copy of each report provided pursuant to Section 3.5 or 3.6 may be
obtained by any Investor Certificateholder by a request to the Trustee addressed
to the Corporate Trust Office.
Section 3.7 Tax Treatment. The Transferor has structured this Agreement and
the Investor Certificates with the intention that the Investor Certificates will
qualify under applicable federal, state, local and foreign tax law as
indebtedness. Except to the extent expressly specified to the contrary in any
Supplement, the Transferor, the Servicer, the Holder of the Exchangeable
Transferor Certificate, each Investor Certificateholder, and each Certificate
Owner agree to treat and to take no action inconsistent with the treatment of
the Investor Certificates (or beneficial interest therein) as indebtedness for
purposes of federal, state, local and foreign income or franchise taxes and any
other tax imposed on or measured by income. Each Investor Certificateholder, and
the Holder of the Exchangeable Transferor Certificate, by acceptance of its
Certificate and each Certificate Owner, by acquisition of a beneficial interest
in a Certificate, agree to be bound by the provisions of this Section 3.7. Each
Certificateholder agrees that it will cause any Certificate Owner acquiring an
interest in a Certificate through it to comply with this Agreement as to
treatment as indebtedness under applicable tax law, as described in this Section
3.7. Furthermore, subject to Section 11.11, the Trustee shall treat the Trust as
a security device only, and shall not file tax returns or obtain an employer
identification number on behalf of the Trust.
In the event that any class of Investor Certificates (other than a class of
Investor Certificates which is and at all times has been wholly owned by the
Transferor) is deemed for federal income tax purposes to represent an equity
interest in the Trust, the Trust shall be treated for federal income tax
purposes as a partnership among the Holders of such Investor Certificates and
the Transferor. In the event such a partnership is deemed to exist, the net
income of the Trust for any month as determined for federal income tax purposes
(and each item of income, gain, loss, deduction and credit, if any, entering
into the computation thereof) shall be allocated among the Holders of such
Investor Certificates as of the first Record Date following the end of such
month in proportion to their ownership of the principal amount of such Investor
Certificates on such date, in an amount of such income up to the sum of the
interest accrued on such Certificates for such month, and the balance thereof
shall be allocated to the Transferor. If the net income of the Trust for any
month is insufficient for the full amount of such allocations to such
Certificateholders, net income in succeeding months shall be allocated to such
Certificateholders to make up for such shortfall before being allocated to the
Transferor as provided above for such succeeding months. Net losses of the
Trust, if
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any, for any month as determined for federal income tax purposes (and each item
of income, gain, loss, deduction and credit, if any, entering into the
computation thereof) shall be allocated to the Transferor to the extent that the
Transferor is reasonably expected to bear the economic burden of such net loss,
then net losses shall be allocated among such Certificateholders as of the first
Record Date following the end of such month in proportion to their ownership of
the principal amount of such Investor Certificates on such Record Date.
Notwithstanding anything in this Agreement to the contrary, the Transferor shall
be allocated at least 1% of each item of income, profit, gain or loss of the
Trust. The Transferor is authorized to modify the allocations in this paragraph
if necessary or appropriate, in its sole discretion, for the allocations to
fairly reflect the economic income, gain or loss to the Transferor or the
Certificateholders, or to comply with the provisions of the Code and the
accompanying Treasury Regulations.
Section 3.8 Notices to Green Tree. In the event that Green Tree or any
Affiliate thereof is no longer acting as Servicer, any Successor Servicer
appointed pursuant to Section 10.2 shall deliver or make available to Green Tree
each certificate and report required to be prepared, forwarded or delivered
thereafter pursuant to Sections 3.4, 3.5 and 3.6.
3-9
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 4.1 Rights of Certificateholders. Each Series of Investor
Certificates shall represent Undivided Interests in the Trust, including the
benefits of any Enhancement issued with respect to such Series and the right to
receive the Collections and other amounts at the times and in the amounts
specified in this Article IV to be deposited in the Investor Accounts or to be
paid to the Investor Certificateholders of such Series (the "Certificateholders'
Interest"); provided, however, that the aggregate interest represented by such
Certificates at any time in the Principal Receivables shall not exceed an amount
equal to the Invested Amount of such Certificates. The Exchangeable Transferor
Certificate shall represent the remaining undivided interest in the Trust,
including the right to receive the Collections and other amounts at the times
and in the amounts specified in this Article IV to be paid to the Holder of the
Exchangeable Transferor Certificate; provided, however, that the aggregate
interest represented by such Exchangeable Transferor Certificate at any time in
the Principal Receivables shall not exceed the Transferor Interest at such time
and such Certificate shall not represent any interest in the Investor Accounts,
except as provided in this Agreement, or the benefits of any Enhancement issued
with respect to any Series.
Section 4.2 Establishment of Accounts.
(a) The Collection Account. The Servicer, for the benefit of the
Certificateholders, shall establish in the name of the Trustee, on behalf of
the Trust, a non-interest bearing segregated account (the "Collection Account")
bearing a designation clearly indicating that the funds deposited therein are
held in trust for the benefit of the Certificateholders, and shall cause such
Collection Account to be established and maintained, (i) in a segregated trust
account with the corporate trust department of a depositary institution or trust
company (which may include the Trustee) organized under the laws of the United
States of America or any one of the states thereof or the District of Columbia
which has a long-term unsecured debt rating of at least Baa3 by Moody's and
whose deposits are insured to the limits provided by law by the FDIC having
corporate trust powers and acting as trustee for funds deposited therein
(provided, however, that such account need not be maintained as a segregated
trust account with the corporate trust department of such institution if at all
times the certificates of deposit short-term deposits or commercial paper or the
long-term unsecured debt obligations (other than such obligation whose rating is
based on collateral or on the credit of a Person other than such institution or
trust company) of such depositary institution or trust company shall have a
credit rating from Standard & Poor's of at least A-1+ and P-1 from Moody's of at
least P-1 in the case of the certificates of deposit, short-term deposits or
commercial paper, or a rating from Standard & Poor's of AAA and from Moody's of
Aaa in the case of the long-term unsecured debt obligations, or (ii) with a
depositary institution, which may include
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the Trustee, which is acceptable to the Rating Agency (in the case of (i) and
(ii), a "Qualified Institution"). If, at any time, the institution holding the
Collection Account ceases to be a Qualified Institution, the Transferor shall
direct the Servicer to establish within ten Business Days a new Collection
Account with a Qualified Institution, transfer any cash and/or any investments
to such new Collection Account and from the date such new Collection Account is
established, it shall be the "Collection Account." The Servicer shall give
written notice to the Trustee of the location and account number of the
Collection Account and shall notify the Trustee in writing prior to any
subsequent change thereof. Pursuant to authority granted to it pursuant to
subsection 3.1(b), the Servicer shall have the power revocable by the Trustee to
withdraw funds from the Collection Account for the purposes of carrying out its
duties hereunder.
The Collection Account shall be under the sole dominion and control of the
Trustee and the Trustee shall possess all right, title and interest in all funds
from time to time on deposit in such account.
(b) The Interest Funding and Principal Accounts. The Trustee, for the
benefit of the Investor Certificateholders, shall establish and maintain with a
Qualified Institution in the name of the Trust two segregated trust accounts for
each Series (an "Interest Funding Account" and a "Principal Account,"
respectively), each bearing a designation clearly indicating that the funds
therein are held for the benefit of the Investor Certificateholders of such
Series. Except as provided in subsection 4.2(e), each Interest Funding Account
and each Principal Account shall be under the sole dominion and control of the
Trustee for the benefit of the Investor Certificateholders. Pursuant to
authority granted to it hereunder, the Servicer shall have the revocable power
to instruct the Trustee to withdraw funds from the Interest Funding Account and
any Principal Account for any purpose of carrying out the Servicer's or the
Trustee's duties hereunder. The Trustee at all times shall maintain accurate
records reflecting each transaction in each Principal Account and each Interest
Funding Account and that funds held therein shall at all times be held in trust
for the benefit of the Investor Certificateholders of such Series. If, at any
time, the institution holding the Interest Funding Account ceases to be a
Qualified Institution, the Servicer shall direct the Trustee to establish within
ten Business Days a new Interest Funding Account meeting the conditions
specified above with a Qualified Institution, transfer any cash and/or any
investments to such new Interest Funding Account and from the date such new
Interest Funding Account is established, it shall be the "Interest Funding
Account." Similarly, if, at any time, the institution holding any Principal
Account ceases to be a Qualified Institution, the Servicer shall direct the
Trustee to establish within ten Business Days a new Principal Account meeting
the conditions specified above with a Qualified Institution, transfer any cash
and/or any investments to such new Principal Account and from the date such new
Principal Account is established, it shall be a "Principal Account."
(c) Distribution Accounts. The Trustee, for the benefit of the Investor
Certificateholders of each Series, shall cause to be established and maintained
in the
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name of the Trust, with an office or branch of a Qualified Institution a
non-interest-bearing segregated demand deposit account for each Series (a
"Distribution Account") bearing a designation clearly indicating that the funds
deposited therein are held in trust for the benefit of the Investor
Certificateholders of such Series. Each Distribution Account shall be under the
sole dominion and control of the Trustee for the benefit of the Investor
Certificateholders of the related Series. Pursuant to the authority granted to
the Paying Agent herein, the Paying Agent shall have the power, revocable by the
Trustee, to make withdrawals and payments from the Distribution Account for the
purpose of carrying out the Paying Agent's duties hereunder. If, at any time,
the institution holding a Distribution Account ceases to be a Qualified
Institution, the Servicer shall direct the Trustee to establish within ten
Business Days a new Distribution Account meeting the conditions specified above
with a Qualified Institution, transfer any cash and/or any investments to such
new Distribution Account and from the date such new Distribution Account is
established, it shall be a "Distribution Account."
(d) The Excess Funding Account. The Trustee, for the benefit of the
Certificateholders, shall cause to be established in the name of the Trustee, on
behalf of the Certificateholders, with a Qualified Institution, a segregated
trust account (the "Excess Funding Account") bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Certificateholders. Except as provided in subsection 4.3(f), the Excess
Funding Account shall, except as otherwise provided herein, be under the sole
dominion and control of the Trustee for the benefit of the Certificateholders.
Pursuant to the authority granted to the Servicer herein, the Servicer shall
have the power, revocable by the Trustee, to make withdrawals and payments from
the Excess Funding Account for the purpose of carrying out the Servicer's or
Trustee's duties hereunder. If, at any time, the institution holding the Excess
Funding Account ceases to be a Qualified Institution, the Servicer shall direct
the Trustee to establish within ten Business Days a new Excess Funding Account
meeting the conditions specified above with a Qualified Institution, transfer
any cash and/or any investments to such new Excess Funding Account and from the
date such new Excess Funding Account is established, it shall be the "Excess
Funding Account."
(e) Administration of the Principal Accounts and the Interest Funding
Accounts. Funds on deposit in each Principal Account and each Interest Funding
Account shall at all times be invested by the Servicer (or, at the written
direction of the Transferor, by the Trustee) on behalf of the Transferor in Cash
Equivalents. Any such investment shall mature and such funds shall be available
for withdrawal on the Transfer Date following the Monthly Period in which such
funds were processed for collection. No such investments shall be liquidated
prior to maturity. At the end of each month, all interest and earnings (net of
losses and investment expenses) on funds on deposit in each Principal Account
and each Interest Funding Account (unless otherwise specified in the applicable
Supplement) shall be part of Finance Charge Collections. Subject to the
restrictions set forth above, the Servicer, or a Person designated in writing by
the Servicer, of which the Trustee shall have
4-3
received written notification, shall have the authority to instruct the Trustee
with respect to the investment of funds on deposit in any Principal Account and
any Interest Funding Account. Any investment instructions to the Trustee shall
be in writing, shall be given no later than 10:00 a.m. New York City time on a
Business Day that such investment is proposed to be made and shall include a
certification that the proposed investment is a Cash Equivalent that matures at
or prior to the time required by this Agreement. For purposes of determining
the availability of funds or the balances in any Interest Funding Account and
any Principal Account for any reason under this Agreement all investment
earnings on such funds shall be deemed not to be available or on deposit.
Section 4.3 Collections and Allocations.
(a) Collections. Dealers shall make payments on the Receivables to the
Servicer who shall deposit all such payments in the Collection Account no later
than the second Business Day following the Date of Processing thereof.
The Servicer shall allocate such amounts to each Series of Investor
Certificates and to the Holder of the Exchangeable Transferor Certificate in
accordance with this Article IV and shall cause the Trustee to withdraw the
required amounts from the Collection Account or pay such amounts to the Holder
of the Exchangeable Transferor Certificate in accordance with this Article IV.
The Servicer shall make such deposits or payments on the date indicated herein
by wire transfer or as otherwise provided in the Supplement for any Series of
Certificates with respect to such Series.
Notwithstanding anything in this Agreement to the contrary, but subject to
the terms of any Supplement, for so long as, and only so long as, Green Tree (or
any successors to Green Tree pursuant to Section 8.2) or an Affiliate of Green
Tree shall remain the Servicer hereunder, and (a)(i) Green Tree (or any
successors to Green Tree pursuant to Section 8.2) or an Affiliate of Green Tree
provides to the Trustee a letter of credit or other form of Enhancement rated at
least A-1 by Standard & Poor's and P-1 by Moody's (as certified to the Trustee
by the Servicer), and (ii) after notifying each Rating Agency of the proposed
use of such letter of credit or other form of Enhancement the Transferor shall
have received a notice from each Rating Agency that making payments monthly
rather than daily would not result in a down-grading or withdrawal of any of
such Rating Agency's then existing ratings of the Investor Certificates, or (b)
Green Tree (or any successors to Green Tree pursuant to Section 8.2) shall have
and maintain a short-term credit rating of at least A-1 by Standard & Poor's and
P-1 by Moody's (as certified to the Trustee by the Servicer), the Servicer need
not deposit Collections from the Collection Account into the Principal Account
or the Interest Funding Account or any Series Account, or make payments to the
Holder of the Exchangeable Transferor Certificate, prior to the close of
business on the day any Collections are deposited in the Collection Account as
otherwise provided in this Article IV, but may instead make such deposits,
payments and withdrawals on each Transfer Date in an amount equal to the net
amount of such
4-4
deposits, payments and withdrawals which would have been made but
for the provisions of this paragraph.
Notwithstanding anything else in this Agreement to the contrary, with
respect to any Monthly Period, whether the Servicer is required to make monthly
or daily deposits from the Collection Account into the Interest Funding Account,
the Principal Account or any Series Account, as provided in any Supplement, (i)
the Servicer will only be required to deposit Collections from the Collection
Account into the Interest Funding Account, the Principal Account or any Series
Account up to the required amount to be deposited into any such deposit account
or, without duplication, distributed on or prior to the related Distribution
Date to investor Certificateholders or to any Enhancement Provider pursuant to
the terms of any Supplement or agreement relating to such Enhancement and (ii)
if at any time prior to such Distribution Date the amount of Collections
deposited in the Collection Account exceeds the amount required to be deposited
pursuant to clause (i) above, the Servicer will be permitted to withdraw the
excess from the Collection Account.
(b) Allocations for the Exchangeable Transfer or Certificate. Throughout
the existence of the Trust, unless otherwise stated in any Supplement, on each
Business Day the Servicer shall allocate to the Holder of the Exchangeable
Transferor Certificate an amount equal to the product of (A) the Transferor
Percentage as of the end of the preceding Business Day and (B) the aggregate
amount of Principal Collections and Interest Collections available in the
Collection Account. The Servicer shall pay such amount to the Holder of the
Exchangeable Transferor Certificate on each Business Day; provided, however,
that amounts payable to the Holder of the Exchangeable Transferor Certificate
pursuant to this clause (b) shall instead be deposited in the Excess Funding
Account to the extent necessary to prevent the Transferor Interest from being
less than the Minimum Transferor Interest.
(c) [Reserved]
(d) Allocation for Series. On each Business Day, (i) the amount of
Interest Collections available in the Collection Account allocable to each
Series shall be determined by multiplying the aggregate amount of such Interest
Collections by the Floating Allocation Percentage for such Series, (ii) the
amount of Principal Collections available in the Collection Account allocable to
each Series shall be determined by multiplying the aggregate amount of such
Principal Collections by (x) during the Revolving Period for a Series, the
Floating Allocation Percentage for such Series and (y) during any Amortization
Period for a Series, the Fixed/Floating Allocation Percentage for such Series,
and (iii) the Defaulted Receivables allocable to each Series shall be determined
by multiplying the aggregate amount of such Defaulted Receivables by the
Floating Allocation Percentage for such Series. The Servicer shall, prior to
the close of business on the day any Collections are deposited in the Collection
Account, cause the Trustee to withdraw the required amounts from the Collection
Account and cause the Trustee to deposit such amounts into the applicable
Principal Account, the applicable Interest Funding Account, the Excess
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Funding Account, or any Series Account or pay such amounts to the Holder of the
Exchangeable Transferor Certificate in accordance with the provisions of this
Article IV.
(e) Unallocated Principal Collections; Excess Funding Account. On each
Business Day, Shared Principal Collections shall be allocated to each
outstanding Series pro rata based on the Principal Shortfall, if any, for each
such Series. The Servicer shall pay any remaining Shared Principal Collections
on such Business Day to the Transferor; provided, that if the Transferor
Interest as determined on such Business Day does not exceed the Minimum
Transferor Interest, then such remaining Shared Principal Collections shall be
deposited in the Excess Funding Account to the extent necessary to increase the
Transferor Interest above the Minimum Transferor Interest; provided, further,
that if an Early Amortization Period has commenced and is continuing with
respect to more than one outstanding Series, such remaining Shared Principal
Collections shall be allocated to such Series pro rata based on the Investor
Percentage for Principal Receivables applicable for such Series.
(f) Amounts in Excess Funding Account. Amounts on deposit in the Excess
Funding Account on any Business Day will be invested by the Servicer (or, at the
direction of the Transferor, by the Trustee) on behalf of the Transferor in Cash
Equivalents which shall mature and be available on or before the next Business
Day on which amounts may be released from the Excess Funding Account. Earnings
from such investments received shall be deposited in the Collection Account and
treated as Interest Collections. Any investment instructions to the Trustee
shall be in writing and shall include a certification that the proposed
investment is a Cash Equivalent that matures at or prior to the date required by
this Agreement. If on any Business Day other than a Business Day on which a
Prospective Pay Out Event has occurred and is continuing, the Transferor
Interest is greater than the Minimum Transferor Interest, amounts on deposit in
the Excess Funding Account may, at the option of the Transferor, be released to
the Holder of the Exchangeable Transferor Certificate. On the first Business
Day of the Amortization Period for any Series, funds on deposit in the Excess
Funding Account will be deposited in the Principal Account for such Series to
the extent of the lesser of (x) the Invested Amount of such Series and (y) the
amount then on deposit in the Excess Funding Account.
[THE REMAINDER OF ARTICLE IV IS RESERVED
AND SHALL BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES]
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ARTICLE V
[ARTICLE V IS RESERVED AND SHALL BE
SPECIFIED IN ANY SUPPLEMENT WITH RESPECT
TO ANY SERIES]
5-1
ARTICLE VI
THE CERTIFICATES
Section 6.1 The Certificates. Subject to Sections 6.10 and 6.13, the
Investor Certificates of each Series and any Class thereof may be issued in
bearer form (the "Bearer Certificates") with attached interest coupons and, if
applicable, a special coupon (collectively, the "Coupons") or in fully
registered form (the "Registered Certificates"), and shall be substantially in
the form of the exhibits with respect thereto attached to the related
Supplement. The Exchangeable Transferor Certificate shall be substantially in
the form of Exhibit A. The Investor Certificates and the Exchangeable
Transferor Certificate shall, upon issue pursuant hereto or to Section 6.9 or
Section 6.10, be executed and delivered by the Transferor to the Trustee for
authentication and redelivery as provided in Sections 2.1 and 6.2. Any Investor
Certificate shall be issuable in a minimum denomination of $1,000 Undivided
Interest and integral multiples thereof, unless otherwise specified in any
Supplement, and shall be issued upon original issuance in an original aggregate
principal amount equal to the Initial Invested Amount. The Exchangeable
Transferor Certificate shall be issued as a single certificate. Each
Certificate shall be executed by manual or facsimile signature on behalf of the
Transferor by its President or any Vice President. Certificates bearing the
manual or facsimile signature of the individual who was, at the time when such
signature was affixed, authorized to sign on behalf of the Transferor or the
Trustee shall not be rendered invalid, notwithstanding that such individual has
ceased to be so authorized prior to the authentication and delivery of such
Certificates or does not hold such office at the date of such Certificates. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein, executed by or on
behalf of the Trustee by the manual signature of a duly authorized signatory,
and such certificate upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been validly issued and duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication except Bearer Certificates which shall be dated the
applicable Issuance Date as provided in the related Supplement.
Section 6.2 Authentication of Certificates. Contemporaneously with the
initial assignment and transfer of the Receivables, whether now existing or
hereafter created and the other components to the Trust, the Trustee shall
authenticate and deliver the initial Series of Investor Certificates, upon the
written order of the Transferor. Upon the issuance of such Investor
Certificates, such Investor Certificates shall be validly issued, fully paid and
nonassessable. The Trustee shall authenticate and deliver the Exchangeable
Transferor Certificate to the Transferor simultaneously with its delivery of the
initial Series of Investor Certificates. Upon an Exchange as provided in
Section 6.9 and the satisfaction of certain other conditions specified therein,
the Trustee shall authenticate and deliver the Investor Certificates of
additional Series (with the designation provided in the related
6-1
Supplement), upon the written order of the Transferor. Upon the written order of
the Transferor, the Certificates of any Series shall be duly authenticated by or
on behalf of the Trustee, in authorized denominations equal to (in the
aggregate) the Initial Invested Amount of such Series of Investor Certificates.
If specified in the related Supplement for any Series, the Trustee shall
authenticate and deliver outside the United States the Global Certificate that
is issued upon original issuance thereof, upon the written order of the
Transferor, to the Depositary. If specified in the related Supplement for any
Series, the Trustee shall authenticate Book-Entry Certificates that are issued
upon original issuance thereof, upon the written order of the Transferor, to a
Clearing Agency or its nominee as provided in Section 6.10.
Section 6.3 Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall cause to be kept at the office or agency to be
maintained by a transfer agent and registrar (the "Transfer Agent and
Registrar") in accordance with the provisions of Section 11.16, a register (the
"Certificate Register") in which, subject to such reasonable regulations as it
may prescribe, the Transfer Agent and Registrar shall provide for the
registration of the Investor Certificates of each Series (unless otherwise
provided in the related Supplement) and of transfers and exchanges of the
Investor Certificates as herein provided. Whenever reference is made in this
Agreement to the transfer or exchange of the Certificates by the Trustee, such
reference shall be deemed to include the transfer or exchange on behalf of the
Trustee by a Transfer Agent and Registrar. Norwest Bank Minnesota, National
Association is hereby initially appointed Transfer Agent and Registrar for the
purposes of registering the Investor Certificates and transfers and exchanges of
the Investor Certificates as herein provided. If any form of Investor
Certificate is issued as a Global Certificate, Norwest Bank Minnesota, National
Association may, or if and so long as any Series of Investor Certificates are
listed on a stock exchange and such exchange shall so require, Norwest Bank
Minnesota, National Association shall appoint a co-transfer agent and co-
registrar, which will also be a co-paying agent, in such city as the Transferor
may specify. Any reference in this Agreement to the Transfer Agent and Registrar
shall include any co-transfer agent and co-registrar unless the context
otherwise requires. Norwest Bank Minnesota, National Association shall be
permitted to resign as Transfer Agent and Registrar upon 30 days' written notice
to the Servicer. In the event that Norwest Bank Minnesota, National Association
shall no longer be the Transfer Agent and Registrar, the Transferor shall
appoint a successor Transfer Agent and Registrar. If any Series with respect to
which Book Entry Certificates were originally issued is no longer issued as
Book-Entry Certificates, then the Servicer may appoint a successor Transfer
Agent and Registrar.
Upon surrender for registration of transfer of any Certificate at any
office or agency of the Transfer Agent and Registrar maintained for such
purpose, the Transferor shall execute, subject to the provisions of subsection
6.3(c), and the Trustee shall (unless the Transfer Agent and Registrar is
different than the Trustee, in which case the Transfer Agent and Registrar
shall) authenticate and deliver, in
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the name of the designated transferee or transferees, one or more new
Certificates in authorized denominations of like aggregate Undivided Interests;
provided, that the provisions of this paragraph shall not apply to Bearer
Certificates.
At the option of any Holder of Registered Certificates, Registered
Certificates may be exchanged for other Registered Certificates of the same
Series in authorized denominations of like aggregate Undivided Interests in the
Trust, upon surrender of the Registered Certificates to be exchanged at any
office or agency of the Transfer Agent and Registrar maintained for such
purpose. At the option of a Bearer Certificateholder, subject to applicable
laws and regulations (including without limitation, the Bearer Rules), Bearer
Certificates may be exchanged for other Bearer Certificates or Registered
Certificates of the same Series in authorized denominations of like aggregate
Undivided Interests in the Trust, in the manner specified in the Supplement for
such Series, upon surrender of the Bearer Certificates to be exchanged at an
office or agency of the Transfer Agent and Registrar located outside the United
States. Each Bearer Certificate surrendered pursuant to this Section 6.3 shall
have attached thereto (or be accompanied by) all unmatured Coupons, provided
that any Bearer Certificate so surrendered after the close of business on the
Record Date preceding the relevant Distribution Date after the related Series
Termination Date need not have attached the Coupons relating to such
Distribution Date.
Whenever any Investor Certificates of any Series are so surrendered for
exchange, the Transferor shall execute, and the Trustee shall (unless the
Transfer Agent and Registrar is different than the Trustee, in which case the
Transfer Agent and Registrar shall) authenticate and deliver, the Investor
Certificates of such Series which the Certificateholder making the exchange is
entitled to receive. Every Investor Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in a form satisfactory to the Trustee and the Transfer
Agent and Registrar duly executed by the Certificateholder thereof or his
attorney-in-fact duly authorized in writing.
The preceding provisions of this Section 6.3 notwithstanding, the Trustee
or the Transfer Agent and Registrar, as the case may be, shall not be required
to register the transfer of or exchange any Investor Certificate of any Series
for the period from the Record Date preceding the due date for any payment to
the Distribution Date with respect to the Investor Certificates of such Series.
Unless otherwise provided in the related Supplement, no service charge
shall be made for any registration of transfer or exchange of Certificates, but
the Transfer Agent and Registrar may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
All Investor Certificates (together with any Coupons attached to Bearer
Certificates) surrendered for registration of transfer or exchange shall be
canceled
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by the Transfer Agent and Registrar and disposed of in a manner satisfactory to
the Trustee. The Trustee shall cancel and dispose of any Global Certificate upon
its exchange in full for Definitive Certificates, but shall not be required to
destroy such Global Certificates. Such certificate shall also state that a
certificate or certificates of each Foreign Clearing Agency to the effect
referred to in Section 6.13 was received with respect to each portion of the
Global Certificate exchanged for Definitive Certificates.
The Transferor shall execute and deliver to the Trustee or the Transfer
Agent and Registrar, as applicable, Bearer Certificates and Registered
Certificates in such amounts and at such times as are necessary to enable the
Trustee to fulfill its responsibilities under this Agreement and the
Certificates.
(b) Except as provided in Section 6.9 or 7.2 or in any Supplement, in no
event shall the Exchangeable Transferor Certificate or any interest therein be
transferred, sold, exchanged, pledged, participated or otherwise assigned
hereunder, in whole or in part, unless the Transferor shall have consented in
writing to such transfer and unless the Trustee shall have received (1)
confirmation in writing from each Rating Agency that such transfer will not
result in a lowering or withdrawal of its then-existing rating of any Series of
Investor Certificates and (2) an Opinion of Counsel that such transfer does not
(i) adversely affect the conclusions reached in any of the federal income tax
opinions issued in connection with the original issuance of any Series of
Investor Certificates or (ii) result in a taxable event to the holders of any
such Series.
(c) Unless otherwise provided in the related Supplement, registration of
transfer of Registered Certificates containing a legend relating to the
restrictions on transfer of such Registered Certificates (which legend shall be
set forth in the Supplement relating to such Investor Certificates) shall be
effected only if the conditions set forth in such related Supplement are
satisfied.
Whenever a Registered Certificate containing the legend set forth in the
related Supplement is presented to the Transfer Agent and Registrar for
registration of transfer, the Transfer Agent and Registrar shall promptly seek
instructions from the Servicer regarding such transfer. The Transfer Agent and
Registrar and the Trustee shall be entitled to receive written instructions
signed by an officer of the Trustee prior to registering any such transfer or
authenticating new Registered Certificates, as the case may be. The Servicer
hereby agrees to indemnify the Transfer Agent and Registrar and the Trustee and
to hold each of them harmless against any loss, liability or expense incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by them in reliance on any such written
instructions furnished pursuant to this subsection 6.3(c).
(d) The Transfer Agent and Registrar will maintain at its expense in the
Borough of Manhattan, The City of New York, an office or offices or an agency or
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agencies where Investor Certificates of such Series may be surrendered for
registration of transfer or exchange.
(e) Prior to the Transfer of any portion of a Transferor Retained Class,
the Trustee shall have received (i) an Officer's Certificate of the Transferor
that on the date of the proposed Transfer, taking into account the certificates
whose Transfer is proposed, more than 20% (by Invested Amount and by value) of
the outstanding certificates issued by the Trust with respect to which no
Opinion of Counsel was issued that the applicable class would be treated as debt
for federal income tax purposes (including the Transferor Certificate and each
Transferor Retained Class) shall be owned by the Transferor and (ii) an Opinion
of Counsel to the effect that such proposed Transfer will not adversely affect
the Federal, Minnesota or Delaware income tax characterization of any
outstanding Series of Investor Certificates or the taxability (or tax
characterization) of the Trust under Federal, Minnesota or Delaware income tax
laws. The Transferor shall provide to Moody's notice of any such Transfer and a
copy of the Opinion of Counsel described in clause (ii) above.
(f) Notwithstanding anything in this Agreement to the contrary, if the
Trust issues any Class of Investor Certificates with respect to which an Opinion
of Counsel is not received stating that such Investor Certificates will be
treated as debt for federal income tax purposes, the following provisions shall
apply to such Certificates:
(i) Such Certificates shall be issued only in transactions which are
not required to be registered under the Securities Act of 1933; and
(ii) The Transferor may prevent any transfer, participation or other
disposition of any interest in any such Certificate if the Transferor, in
its sole and absolute discretion, determines that such transfer,
participation or other disposition, if effected, would cause the Trust to
be treated as a publicly traded partnership under Section 7704 of the
Internal Revenue Code of 1986, as amended, or the Treasury Regulations
issued thereunder.
Section 6.4 Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate (together, in the case of Bearer Certificates, with all
unmatured Coupons, if any, appertaining thereto) is surrendered to the Transfer
Agent and Registrar, or the Transfer Agent and Registrar receives evidence to
its satisfaction of the destruction, loss or theft of any Certificate and (b)
there is delivered to the Transfer Agent and Registrar and the Trustee such
security or indemnity as may be required by them to hold each of them and the
Trust harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
(unless the Transfer Agent and Registrar is different from the Trustee, in which
case the Transfer Agent and Registrar shall) authenticate and deliver (in
compliance with applicable law), in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and aggregate Undivided Interest. In connection with the issuance of any
new
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Certificate under this Section 6.4, the Trustee or the Transfer Agent and
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Transfer Agent
and Registrar) connected therewith. Any duplicate Certificate issued pursuant
to this Section 6.4 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 6.5 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Trustee, the Paying Agent, the
Transfer Agent and Registrar and any agent of any of them may treat the Person
in whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions pursuant to Article V (as described in
any Supplement) and Article XI; and for all other purposes whatsoever, and
neither the Trustee, the Paying Agent, the Transfer Agent and Registrar nor any
agent of any of them shall be affected by any notice to the contrary; provided,
however, that in determining whether the holders of Investor Certificates
evidencing the requisite Undivided Interests have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Investor
Certificates owned by the Transferor, the Servicer or any Affiliate thereof
shall be disregarded and deemed not to be outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Investor Certificates which a Responsible Officer in the Corporate Trust Office
of the Trustee knows to be so owned shall be so disregarded. Investor
Certificates so owned that have been pledged in good faith shall not be
disregarded as outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Investor Certificates
and that the pledgee is not the Transferor, the Servicer or an Affiliate
thereof.
In the case of a Bearer Certificate, the Trustee, the Paying Agent, the
Transfer Agent and Registrar and any agent of any of them may treat the holder
of a Bearer Certificate or Coupon as the owner of such Bearer Certificate or
Coupon for the purpose of receiving distributions pursuant to Article V (as
described in any Supplement) and Article XII and for all other purposes
whatsoever, and neither the Trustee, the Paying Agent, the Transfer Agent and
Registrar nor any agent of any of them shall be affected by any notice to the
contrary. Certificates so owned that have been pledged in good faith shall not
be disregarded and may be regarded as outstanding, if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Investor Certificates and that the pledgee is not the Transferor, the
Servicer or an Affiliate thereof.
Section 6.6 Appointment of Paying Agent.
(a) The Paying Agent shall make distributions to Investor
Certificateholders from the appropriate account or accounts maintained for the
benefit of
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Certificateholders as specified in this Agreement or the related Supplement for
any Series pursuant to Articles IV and V hereof. Any Paying Agent shall have
the revocable power to withdraw funds from such appropriate account or accounts
for the purpose of making distributions referred to above. The Trustee (or the
Servicer if the Trustee is the Paying Agent) may revoke such power and remove
the Paying Agent, if the Trustee (or the Servicer if the Trustee is the Paying
Agent) determines in its sole discretion that the Paying Agent shall have failed
to perform its obligations under this Agreement in any material respect or for
other good cause. The Paying Agent, unless the Supplement with respect to any
Series states otherwise, shall initially be Norwest Bank Minnesota, National
Association. Norwest Bank Minnesota, National Association shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Servicer. Upon the
resignation of the Paying Agent, if the Paying Agent was not the Trustee, the
Trustee shall be the successor Paying Agent unless and until another successor
has been appointed as Paying Agent. In the event that the Trustee shall no
longer be the Paying Agent, the Transferor shall appoint a successor to act as
Paying Agent (which shall be a bank or trust company). Any reference in this
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
If specified in the related Supplement for any Series, so long as the
Investor Certificates of such Series are outstanding and the Paying Agent is not
located in New York City, the Transferor shall maintain a co-paying agent in New
York City (for Registered Certificates only) or any other city designated in
such Supplement.
(b) The Trustee shall cause each Paying Agent (other than itself) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee that such Paying Agent will hold all sums, if any,
held by it for payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto and waive all rights of set off the Paying
Agent may have against any sums held by it until such sums shall be paid to such
Certificateholders and shall agree, and if the Trustee is the Paying Agent it
hereby agrees, that it shall comply with all requirements of the Internal
Revenue Code regarding the withholding by the Trustee of payments in respect of
federal income taxes due from Certificate Owners.
Section 6.7 Access to List of Certificateholders' Names and Addresses.
The Trustee will furnish or cause to be furnished by the Transfer Agent and
Registrar to the Servicer or the Paying Agent, within five Business Days after
receipt by the Trustee of a request therefor from the Servicer or the Paying
Agent, respectively, in writing, a list in such form as the Servicer or the
Paying Agent may reasonably require, of the names and addresses of the Investor
Certificateholders as of the most recent Record Date for payment of
distributions to Investor Certificateholders. Unless otherwise provided in the
related Supplement, holders of Investor Certificates evidencing Undivided
Interests aggregating not less than 25% of the Invested Amount of the Investor
Certificates of any Series (the "Applicants") may apply in writing to the
Trustee, and if such application states that the Applicants
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desire to communicate with other Investor Certificateholders of any Series with
respect to their rights under this Agreement or under the Investor Certificates
and is accompanied by a copy of the communication which such Applicants propose
to transmit, then the Trustee, after having been adequately indemnified by such
Applicants for its costs and expenses, shall afford or shall cause the Transfer
Agent and Registrar to afford such Applicants access during normal business
hours to the most recent list of Certificateholders held by the Trustee and
shall give the Servicer notice that such request has been made, within five
Business Days after the receipt of such application. Such list shall be as of a
date no more than 45 days prior to the date of receipt of such Applicants'
request. Every Certificateholder, by receiving and holding a Certificate, agrees
with the Trustee that neither the Trustee, the Transfer Agent and Registrar, nor
any of their respective agents shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was obtained.
Section 6.8 Authenticating Agent.
(a) The Trustee may appoint one or more authenticating agents (each, an
"Authenticating Agent") with respect to the Certificates which shall be
authorized to act on behalf of the Trustee in authenticating the Certificates in
connection with the issuance, delivery, registration of transfer, exchange or
repayment of the Certificates. The Trustee will appoint any Transfer Agent and
Registrar to be an Authentication Agent. Whenever reference is made in this
Agreement to the authentication of Certificates by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be acceptable to the
Transferor. The Trustee hereby initially appoints itself as its Authenticating
Agent.
(b) Any institution succeeding to the corporate agency business of an
Authenticating Agent shall continue to be an Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such Authenticating Agent.
(c) An Authenticating Agent may at any time resign by giving written notice
of resignation to the Trustee and to the Transferor. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving notice of
termination to such Authenticating Agent and to the Transferor. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
an Authenticating Agent shall cease to be acceptable to the Trustee or the
Transferor, the Trustee promptly may appoint a successor Authenticating Agent.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authen-
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ticating Agent shall be appointed unless acceptable to the Trustee and the
Transferor.
(d) The Servicer agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section 6.8.
(e) The provisions of Sections 11.1, 11.2 and 11.3 shall be applicable to
any Authenticating Agent.
(f) Pursuant to an appointment made under this Section 6.8, the
Certificates may have endorsed thereon, in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
Trustee's Certificate of Authentication
This is one of the certificates described in the Pooling and Servicing
Agreement.
_________________________________________
as Authenticating Agent for the
Trustee,
By: _____________________________________
Authorized Signatory
Dated:
Section 6.9 Tender of Exchangeable Transferor Certificate.
(a) Upon any Exchange, the Transferor shall deliver to the Trustee for
authentication under Section 6.2, one or more new Series of Investor
Certificates. Any such Series of Investor Certificates shall be substantially
in the form specified in the related Supplement and shall bear, upon its face,
the designation for such Series to which it belongs, as selected by the
Transferor. Except as specified in any Supplement for a related Series, all
Investor Certificates of any Series shall rank pari passu and be equally and
ratably entitled as provided herein to the benefits hereof (except that the
Enhancement provided for any Series shall not be available for any other Series)
without preference, priority or distinction on account of the actual time or
times of authentication and delivery, all in accordance with the terms and
provisions of this Agreement and the related Supplement.
(b) The Holder of the Exchangeable Transferor Certificate may (i) tender
the Exchangeable Transferor Certificate to the Trustee in exchange for (A) one
or more newly issued Series of Investor Certificates, or (B) a reissued
Exchangeable Transferor Certificate, (ii) request the Trustee to issue to it one
or more Classes of
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any newly issued Series of Investor Certificates which upon payment by the pur-
chaser thereof of the Initial Invested Amount of such Certificates to a
Defeasance Account, will represent an interest in the Trust equal to such
Initial Invested Amount (an "Unfunded Certificate") or (iii) take a combination
of the actions specified in clauses (i) and (ii) provided that the sum of the
amount of Transferor Interest which is tendered under clause (i) and the amount
to be paid to the Defeasance Account under clause (ii) equals the Initial
Invested Amount of the Investor Certificates delivered to the Holder of the
Exchangeable Transferor Certificate (any such event under clauses (i), (ii) or
(iii), a "Transferor Exchange"). In addition, to the extent permitted for any
Series of Investor Certificates as specified in the related Supplement, the
Investor Certificateholders of such Series may tender their Investor
Certificates and the Holder of the Exchangeable Transferor Certificate may
tender the Exchangeable Transferor Certificate to the Trustee pursuant to the
terms and conditions set forth in such Supplement in exchange for (i) one or
more newly issued Series of Investor Certificates and (ii) a reissued
Exchangeable Transferor Certificate (an "Investor Exchange"). Notwithstanding
anything to the contrary herein, the Transferor shall not be permitted to
deposit money into any Defeasance Account. The Transferor Exchange and Investor
Exchange are referred to collectively herein as an "Exchange." The Holder of the
Exchangeable Transferor Certificate may perform an Exchange by notifying the
Trustee, in writing, at least five Business Days in advance (an "Exchange
Notice") of the date upon which the Exchange is to occur (an "Exchange Date").
Any Exchange Notice shall state the designation of any Series to be issued on
the Exchange Date and, with respect to each such Class or Series: (a) its
Initial Invested Amount (or the method for calculating such Initial Invested
Amount), which at any time may not be greater than the current principal amount
of the Exchangeable Transferor Certificate at such time (or in the case of an
Investor Exchange, the sum of the Invested Amount of any Class or Series of
Investor Certificates to be exchanged plus the current principal amount of the
Exchangeable Transferor Certificate) taking into account any Receivables trans-
ferred to the Trust simultaneous with such Exchange, (b) its Certificate Rate
(or the method for allocating interest payments or other cash flows to such
Series), if any, and (c) the Enhancement Provider, if any, with respect to such
Series. On the Exchange Date, the Trustee shall authenticate and deliver any
such Class or Classes of Series of Investor Certificates only upon delivery to
it of the following: (a) a Supplement satisfying the criteria set forth in
subsection 6.9(c) and in form reasonably satisfactory to the Trustee executed
by the Transferor and the Servicer and specifying the Principal Terms of such
Series, (b) the applicable Enhancement, if any, (c) the agreement, if any,
pursuant to which the Enhancement Provider agrees to provide the Enhancement, if
any, (d) an Opinion of Counsel to the effect that (i) any Class of the newly
issued Series of Investor Certificates sold to third parties will be
characterized as either indebtedness or partnership interests for Federal and
applicable state income tax purposes or (ii) that the issuance of the newly
issued Series of Investor Certificates will not adversely affect the Federal,
Minnesota or Delaware income tax characterization of any outstanding Series of
Investor Certificates or the taxability of the Trust under Federal, Minnesota or
Delaware income tax laws, (e) written confirmation from each Rating Agency that
the Exchange will not result
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in such Rating Agency's reducing or withdrawing its rating on any then
outstanding Series as to which it is a Rating Agency, (f) an Officer's
Certificate of the Transferor, that on the Exchange Date (i) after giving effect
to such Exchange, the Transferor Interest would be at least equal to the Minimum
Transferor Interest, (ii) the Retained Interest would be at least equal to the
Minimum Retained Interest, and (iii) taking into account the certificates of the
newly issued Series, more than 20% (by Invested Amount and by value) of the
outstanding certificates issued by the Trust with respect to which no Opinion of
Counsel was issued that the applicable class would be treated as debt for
federal income tax purposes (including the Transferor Certificate and each
Transferor Retained Class) shall, by their terms, be prohibited from being
Transferred, (g) the existing Exchangeable Transferor Certificate or applicable
Investor Certificates, as the case may be and (h) such other documents,
certificates and Opinions of Counsel as may be required by the applicable
Supplement. Upon satisfaction of such conditions, the Trustee shall cancel the
existing Exchangeable Transferor Certificate or applicable Investor
Certificates, as the case may be, and issue, as provided above, such Series of
Investor Certificates and a new Exchangeable Transferor Certificate, dated the
Exchange Date. There is no limit to the number of Exchanges that may be
performed under this Agreement.
(c) In conjunction with an Exchange, the parties hereto shall execute a
Supplement, which shall specify the relevant terms with respect to any newly
issued Series of Investor Certificates, which may include without limitation:
(i) its name or designation, (ii) the Initial Invested Amount or the method of
calculating the Initial Invested Amount, (iii) the Certificate Rate (or formula
for the determination thereof), (iv) the Closing Date, (v) the rating agency or
agencies rating such Series, (vi) the name of the Clearing Agency, if any, (vii)
the rights of the Holder of the Exchangeable Transferor Certificate that have
been transferred to the Holders of such Series pursuant to such Exchange
(including any rights to allocations of Collections of Imputed Yield Receivables
and Principal Receivables), (viii) the interest payment date or dates and the
date or dates from which interest shall accrue, (ix) the method of allocating
Principal Collections for such Series and the method by which the principal
amount of Investor Certificates of such Series shall amortize or accrete and the
method for allocating Imputed Yield Collections and Defaulted Receivables, (x)
the names of any accounts to be used by such Series and the terms governing the
operation of any such account, (xi) the Series Servicing Fee Percentage, (xii)
the Minimum Transferor Interest, (xiii) the Series Termination Date, (xiv) the
terms of any Enhancement with respect to such Series, (xv) the Enhancement
Provider, if applicable, (xvi) the base rate applicable to such Series, (xvii)
the terms on which the Certificates of such Series may be repurchased or
remarketed to other investors, (xviii) any deposit into any account provided for
such Series, (xix) the number of Classes of such Series and, if more than one
Class, the rights and priorities of each such Class, (xx) whether any fees will
be included in the funds available to be paid for such Series, (xxi) the
subordination of such Series to any other Series, (xxii) the Pool Factor,
(xxiii) the Minimum Aggregate Principal Receivables, (xxiv) whether such Series
will be a part of a group or subject to being paired with any other Series,
(xxv) whether such Series will be pre-funded, and
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(xxvi) any other relevant terms of such Series (including whether or not such
Series will be pledged as collateral for an issuance of any other securities,
including commercial paper) (all such terms, the "Principal Terms" of such
Series). The terms of such Supplement may modify or amend the terms of this
Agreement, solely as applied to such new Series. If on the date of the issuance
of such Series there is issued and outstanding one or more Series of Investor
Certificates and no Series of Investor Certificates is currently rated by a
Rating Agency, then as a condition to such Exchange a nationally recognized
investment banking firm or commercial bank shall also deliver to the Trustee an
officer's certificate stating, in substance, that the Exchange will not have an
adverse effect on the timing or distribution of payments to such other Series of
Investor Certificates then issued and outstanding.
(d) The Transferor may surrender the Exchangeable Transferor Certificate to
the Trustee in exchange for a newly issued Exchangeable Transferor Certificate
and a second certificate (a "Supplemental Certificate"), the terms of which
shall be defined in a supplement to this Agreement (which supplement shall be
subject to Section 13.01 hereof to the extent that it amends any of the terms of
this Agreement), to be delivered to or upon the order of the Transferor (or a
Person designated by the Transferor, in the case of the transfer or exchange
thereof, as provided below), upon satisfaction of the following conditions: (i)
following such exchange, the Transferor Interest (less any interest therein
represented by any Supplemental Certificates) in the Principal Receivables in
the Trust equals or exceeds the greater of the Minimum Transferor Interest and
the Minimum Retained Interest following such exchange, (ii) following such
exchange the sum of (a) the Transferor Interest (less any interest therein
represented by any Supplemental Certificates) in the Principal Receivables and
(b) the interest in Principal Receivables represented by the Transferor Retained
Certificates equals or exceeds, on the day following such exchange, 20% of the
sum of (x) the Transferor Interest (including any interest therein represented
by any Supplemental Certificate) and (y) the interest in Principal Receivables
represented by the Transferor Retained Certificates on such date, and (iii) the
Trustee received prior to such exchange (A) a letter from the Rating Agency
stating that the then current ratings on the Investor Certificates of each rated
class of each Series then outstanding will not be reduced or withdrawn because
of the issuance of such Supplemental Certificate and (B) an Opinion of Counsel
to the effect that (i) such Supplemental Certificate will be characterized as
either indebtedness or a partnership interest for Federal and applicable state
income tax purposes or (ii) that such Supplemental Certificate will not
adversely affect the Federal, Minnesota or Delaware income tax characterization
of any outstanding Series of Investor Certificates or the taxability of the
Trust under Federal, Minnesota or Delaware income tax laws, transferred or
exchanged only upon satisfaction of the conditions set forth in clause (iii)
above.
Section 6.10 Book-Entry Certificates. Unless otherwise provided in any
related Supplement, the Investor Certificates, upon original issuance, shall be
issued in the form of typewritten Certificates representing the Book-Entry
Certificates, to be delivered to the depositary specified in such Supplement
(the "Depositary") which
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shall be the Clearing Agency or Foreign Clearing Agency, by or on behalf of such
Series. The Investor Certificates of each Series shall, unless otherwise
provided in the related Supplement, initially be registered on the Certificate
Register in the name of the nominee of the Clearing Agency or Foreign Clearing
Agency. No Certificate Owner will receive a definitive certificate representing
such Certificate Owner's interest in the related Series of Investor
Certificates, except as provided in Section 6.12. Unless and until definitive,
fully registered Investor Certificates of any Series ("Definitive Certificates")
have been issued to Certificate Owners pursuant to Section 6.12:
(i) the provisions of this Section 6.10 shall be in full force and
effect with respect to each such Series;
(ii) the Transferor, the Servicer, the Paying Agent, the Transfer
Agent and Registrar and the Trustee may deal with the Clearing Agency and
the Clearing Agency Participants for all purposes (including the making of
distributions on the Investor Certificates of each such Series) as the
authorized representatives of the Certificate Owners;
(iii) to the extent that the provisions of this Section 6.10 conflict
with any other provisions of this Agreement, the provisions of this Section
6.10 shall control with respect to each such Series; and
(iv) the rights of Certificate Owners of Investor Certificates of each
such Series shall be exercised only through the Clearing Agency or Foreign
Clearing Agency and the applicable Clearing Agency Participants and shall
be limited to those established by law and agreements between such
Certificate Owners and the Clearing Agency or Foreign Clearing Agency
and/or the Clearing Agency Participants. Pursuant to the Depositary
Agreement applicable to a Series, unless and until Definitive Certificates
of such Series are issued pursuant to Section 6.12, the initial Clearing
Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit distributions of principal and
interest on the Investor Certificates to such Clearing Agency Participants.
Section 6.11 Notices to Clearing Agency. Whenever notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to Certificate Owners
pursuant to Section 6.12, the Trustee shall give all such notices and communica-
tions specified herein to be given to Holders of the Investor Certificates to
the Clearing Agency or Foreign Clearing Agency.
Section 6.12 Definitive Certificates. If (i) (A) the Transferor advises the
Trustee in writing that the Clearing Agency or Foreign Clearing Agency is no
longer willing or able to discharge properly its responsibilities under the
applicable Depositary Agreement, and (B) the Transferor is unable to locate a
qualified successor,
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(ii) the Transferor, at its option, advises the Trustee in writing that it
elects to terminate the book-entry system through the Clearing Agency or Foreign
Clearing Agency with respect to any Series of Certificates or (iii) after the
occurrence of a Servicer Default, Certificate Owners of a Series representing
beneficial interests aggregating not less than 50% of the Invested Amount of
such Series advise the Trustee and the applicable Clearing Agency or Foreign
Clearing Agency through the applicable Clearing Agency Participants in writing
that the continuation of a book-entry system through the applicable Clearing
Agency or Foreign Clearing Agency is no longer in the best interests of the
Certificate Owners, the Trustee shall notify all Certificate Owners of such
Series, through the applicable Clearing Agency Participants, of the occurrence
of any such event and of the availability of Definitive Certificates to
Certificate Owners of such Series requesting the same. Upon surrender to the
Trustee of the Investor Certificates of such Series by the applicable Clearing
Agency or Foreign Clearing Agency for registration, accompanied by registration
instructions from the applicable Clearing Agency or Foreign Clearing Agency, the
Trustee shall issue the Definitive Certificates of such Series. Neither the
Transferor nor the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates of such Series,
all references herein to obligations imposed upon or to be performed by the
applicable Clearing Agency or Foreign Clearing Agency shall be deemed to be
imposed upon and performed by the Trustee, to the extent applicable with respect
to such Definitive Certificates, and the Trustee shall recognize the Holders of
the Definitive Certificates of such Series as Certificateholders of such Series
hereunder.
Section 6.13 Global Certificate; Euro-Certificate Exchange Date. If
specified in the related Supplement for any Series, the Investor Certificates
may be initially issued in the form of a single temporary Global Certificate
(the "Global Certificate") in bearer form, without interest coupons, in the
denomination of the Initial Invested Amount of such Series and substantially in
the form attached to the related Supplement. Unless otherwise specified in the
related Supplement, the provisions of this Section 6.13 shall apply to such
Global Certificate. The Global Certificate will be authenticated by the Trustee
upon the same conditions, in substantially the same manner and with the same
effect as the Definitive Certificates. The Global Certificate may be exchanged
in the manner described in the related Supplement for Registered Certificates or
Bearer Certificates in definitive form.
Section 6.14 Meetings of Certificateholders.
To the extent provided by the Supplement for any Series issued in whole or
in part in Bearer Certificates, the Servicer or the Trustee may at any time call
a meeting of the Certificateholders of such Series, to be held at such time and
at such place as the Servicer or the Trustee, as the case may be, shall
determine, for the purpose of approving a modification of or amendment to, or
obtaining a waiver of, any covenant or condition set forth in this Agreement
with respect to such Series or in the Certificates of such Series, subject to
Section 13.1 of this Agreement.
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ARTICLE VII
OTHER MATTERS RELATING TO THE TRANSFEROR
Section 7.1 Liability of the Transferor. The Transferor shall be liable in
accordance herewith solely to the extent of the obligations specifically
undertaken by the Transferor.
Section 7.2 Merger or Consolidation of or Assumption of the Obligations of
the Transferor.
(a) The Transferor shall not consolidate with or merge into any other
business entity or convey or transfer its properties and assets substantially as
an entirety to any Person, unless:
(i) the business entity formed by such consolidation or into which the
Transferor is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Transferor substantially as an entirety
shall be, if the Transferor is not the surviving entity, organized and
existing under the laws of the United States of America or any State or the
District of Columbia and such Person shall assume, without the execution or
filing of any paper or any further act on the part of the parties hereto,
the performance of every covenant and obligation of the Transferor, as
applicable hereunder and shall benefit from all the rights granted to the
Transferor, as applicable hereunder. To the extent that any right, covenant
or obligation of the Transferor, as applicable hereunder, is inapplicable
to the successor entity, such successor entity shall be subject to such
covenant or obligation, or benefit from such right, as would apply, to the
extent practicable, to such successor entity. In furtherance hereof, in
applying this Section 7.2 to a successor entity, Section 9.2 hereof shall
be applied by reference to events of involuntary liquidation, receivership
or conservatorship applicable to such successor entity as shall be set
forth in the officer's certificate described in subsection 7.2(a)(ii);
(ii) the Transferor shall have delivered to the Trustee an Officer's
Certificate signed by a Vice President (or any more senior officer) of the
Transferor stating that such consolidation, merger, conveyance or transfer
and such supplemental agreement comply with this Section 7.2 and that all
conditions precedent herein provided for relating to such transaction have
been complied with and an Opinion of Counsel that such supplemental
agreement is legal, valid and binding and that the entity surviving such
consolidation, conveyance or transfer is organized and existing under the
laws of the United States of America or any State or the District of
Columbia and, subject to customary limitations and qualifications, such
entity will not be substantively consolidated with Green Tree or the
Servicer;
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(iii) the Transferor shall have delivered notice to the Rating Agency
of such consolidation, merger, conveyance or transfer and the Rating Agency
shall have provided written confirmation that such consolidation, merger,
conveyance or transfer will not result in the Rating Agency reducing or
withdrawing its rating on any then outstanding Series as to which it is a
Rating Agency;
(iv) the successor entity shall be a special purpose bankruptcy remote
entity; and
(v) if the Transferor is not the surviving entity, the surviving
entity shall file new UCC-1 financing statements with respect to the
interest of the Trust in the Receivables.
(b) The obligations of the Transferor hereunder shall not be assignable nor
shall any Person succeed to the obligations of the Transferor hereunder except
for mergers, consolidations, assumptions or transfers in accordance with the
provisions of the foregoing paragraph.
Section 7.3 Limitation on Liability. The directors, officers, employees or
agents of the Transferor shall not be under any liability to the Trust, the
Trustee, the Certificateholders, any Enhancement Provider or any other Person
hereunder or pursuant to any document delivered hereunder, it being expressly
understood that all such liability is expressly waived and released as a
condition of, and as consideration for, the execution of this Agreement and any
Supplement and the issuance of the Certificates; provided, however, that this
provision shall not protect the officers, directors, employees, or agents of the
Transferor against any liability which would otherwise be imposed upon them by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties or by reason of reckless disregard of their obligations and duties
hereunder. Except as provided in Sections 7.1 and 7.4 with respect to the Trust
and the Trustee and its officers, directors, employees and agents, the
Transferor shall not be under any liability to the Trust, the Trustee, its
officers, directors, employees and agents, the Certificateholders, any
Enhancement Provider or any other Person for any action taken or for refraining
from the taking of any action in its capacity as Transferor pursuant to this
Agreement or any Supplement whether arising from express or implied duties
under this Agreement or any Supplement or otherwise; provided, however, that
this provision shall not protect the Transferor against any liability which
would otherwise be imposed upon it by reason of willful misfeasance, bad faith
or gross negligence in the performance of duties or by reason of reckless
disregard of its obligations and duties hereunder. The Transferor and any
director, officer, employee or agent may rely in good faith on any document of
any kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder.
Section 7.4 Liabilities. Notwithstanding Section 7.3, by entering into this
Agreement, the Transferor agrees to be liable, directly to the injured party,
for the
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entire amount of any losses, claims, damages, penalties or liabilities (other
than those incurred by a Certificateholder in the capacity of an investor in the
Investor Certificates as a result of the performance of the Receivables, market
fluctuations, a shortfall or failure by the Enhancement Provider to make payment
under any Enhancement or other similar market or investment risks associated
with ownership of the Investor Certificates) arising out of or based on the
arrangement created by this Agreement and the actions of the Servicer taken
pursuant hereto as though this Agreement created a partnership under the
Minnesota Uniform Partnership Act, in which the Transferor is a general partner.
The Transferor agrees to pay, indemnify and hold harmless each Investor
Certificateholder against and from any and all such loses claims, damages and
liabilities (other than those incurred by a Certificateholder in the capacity of
an investor in the Investor Certificates as a result of the performance of the
Receivables, market fluctuations, a shortfall or failure by an Enhancement
Provider to make payment under an Enhancement or other similar market or
investment risks) except to the extent that they arise from any action by such
Investor Certificateholder. Subject to Sections 8.3 and 8.4, in the event of a
Service Transfer, the Successor Servicer will indemnify and hold harmless the
Transferor for any losses claims damages and liabilities of the Transferor as
described in this Section 7.4 arising from the actions or omissions of such
Successor Servicer.
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ARTICLE VIII
OTHER MATTERS RELATING
TO THE SERVICER
Section 8.1 Liability of the Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer in such capacity herein.
Section 8.2 Merger or Consolidation of or Assumption of the Obligations of
the Servicer. Subject to subsection 3.1(a), the Servicer shall not consolidate
with or merge into any other corporation or convey or transfer its properties
and assets substantially as an entirety to any Person, unless:
(i) the corporation formed by such consolidation or into which the
Servicer is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Servicer substantially as an entirety
shall be a corporation organized and existing under the laws of the United
States of America or any State or the District of Columbia and, if the
Servicer is not the surviving entity, such Person shall assume, without the
execution or filing of any paper or any further act on the part of any of
the parties hereto, the performance of every covenant and obligation of the
Servicer hereunder (to the extent that any right, covenant or obligation of
the Servicer, as applicable hereunder, is inapplicable to the successor
entity, such successor entity shall be subject to such covenant or
obligation, or benefit from such right, as would apply, to the extent
practicable, to such successor entity); and
(ii) the Servicer shall have delivered to the Trustee an Officer's
Certificate that such consolidation, merger, conveyance or transfer and
such supplemental agreement comply with this Section 8.2 and that all
conditions precedent herein provided for relating to such transaction have
been complied with and an Opinion of Counsel that such supplemental
agreement is legal, valid and binding with respect to the Servicer and that
the entity surviving such consolidation, conveyance or transfer is
organized and existing under the laws of the United States of America or
any State or the District of Columbia; and
(iii) the Servicer shall have delivered notice to the Rating Agency of
such consolidation, merger, conveyance or transfer.
Section 8.3 Limitation on Liability of the Servicer and Others. The
directors, officers, employees or agents of the Servicer shall not be under any
liability to the Trust, the Trustee, the Certificateholders, any Enhancement
Provider or any other Person hereunder or pursuant to any document delivered
hereunder, it being expressly understood that all such liability is expressly
waived and released as a condition of, and as consideration for, the execution
of this Agreement and any
8-1
Supplement and the issuance of the Certificates; provided, however, that this
provision shall not protect the directors, officers, employees and agents of the
Servicer against any liability which would otherwise be imposed upon them by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties or by reason of reckless disregard of their obligations and duties
hereunder. Except as provided in Sections 8.1 and 8.4 with respect to the
Trustee, its officers, directors, employees and agents, the Servicer shall not
be under any liability to the Trust, the Trustee, its officers, directors,
employees and agents, the Certificateholders, any Enhancement Provider or any
other Person for any action taken or for refraining from the taking of any
action in its capacity as Servicer pursuant to this Agreement or any Supplement;
provided, however, that this provision shall not protect the Servicer against
any liability which would otherwise be imposed upon it by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties or by
reason of its reckless disregard of its obligations and duties hereunder or
under any Supplement. The Servicer may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. The Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to its
duties to service the Receivables in accordance with this Agreement which in its
reasonable opinion may involve it in any expense or liability.
Section 8.4 Servicer Indemnification of the Transferor, the Trust and the
Trustee. Subject to the limitations on liability set forth in Section 8.3, the
Servicer shall indemnify and hold harmless the Transferor, the Trustee and the
Trust (each, an "Indemnified Party") from and against any loss, liability,
reasonable expense, damage or injury, including, but not limited to, any
judgment, award, settlement, reasonable attorneys' fees and other costs or
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim, suffered or sustained by reason of any acts or
omissions or alleged acts or omissions of the Servicer with respect to
activities of the Trust or the Trustee for which the Servicer is responsible
pursuant to this Agreement; provided, however, that the Servicer shall not
indemnify or hold harmless an Indemnified Party if such acts, omissions or
alleged acts or omissions constitute or are caused by fraud, gross negligence,
or willful misconduct by such Indemnified Party (or any of such Indemnified
Party's officers, directors, employees or agents) or the Investor
Certificateholders; provided, further, that the Servicer shall not indemnify or
hold harmless the Trust, the Investor Certificateholders or the Certificate
Owners for any losses, liabilities, expenses, damages or injuries suffered or
sustained by any of them with respect to any action taken by the Trustee at the
request of the Investor Certificateholders; provided, further, that the Servicer
shall not indemnify or hold harmless the Trust, the Investor Certificateholders
or the Certificate Owners as to any losses, liabilities, expenses, damages or
injuries suffered or sustained by any of them in their capacities as investors,
including without limitation losses incurred as a result of Defaulted
Receivables; provided, further, that the Servicer shall not indemnify or hold
harmless the Transferor, the Trust, the Investor Certificateholders or the
Certificate Owners for any losses, liabilities, expenses, damages or injuries
suffered
8-2
or sustained by the Trust, the Investor Certificateholders or the Certificate
Owners arising under any tax law, including without limitation, any federal,
state, local or foreign income or franchise taxes or any other tax imposed on or
measured by income (or any interest, penalties or additions with respect thereto
or arising from a failure to comply therewith) required to be paid by the Trust,
the Investor Certificateholders or the Certificate Owners in connection
herewith to any taxing authority; and, provided, further, that in no event will
the Servicer be liable, directly or indirectly, for or in respect of any
indebtedness or obligation evidenced or created by any Certificate, recourse as
to which shall be limited solely to the assets of the Trust allocated for the
payment thereof as provided on this Agreement and any applicable Supplement. Any
such indemnification shall not be payable from the assets of the Trust, but the
Servicer shall be subrogated to the rights of the Trust with respect to the
foregoing matters if and to the extent that the Servicer shall have indemnified
the Trust with respect thereto. The Servicer shall indemnify and hold harmless
the Trustee and its officers, directors, employees or agents from and against
any loss, liability, reasonable expense, damage or injury suffered or sustained
by reason of the acceptance of this Trust by the Trustee, the issuance by the
Trust of the Certificates or any of the other matters contemplated herein or in
any Supplement; provided, however, that the Servicer shall not indemnify the
Trustee or its officers, directors, employees or agents for any loss, liability,
expense, damage or injury caused by the fraud, negligence or willful misconduct
of any of them. The provisions of this indemnity shall run directly to and be
enforceable by an injured party subject to the limitations hereof and shall
survive the resignation or removal of the Servicer, the resignation or removal
of the Trustee and/or the termination of the Trust and shall survive the
termination of the Agreement.
Section 8.5 The Servicer Not to Resign. Subject to subsection 3.1(a), the
Servicer shall not resign from the obligations and duties hereby imposed on it
except upon determination that (i) the performance of its duties hereunder is no
longer permissible under applicable law and (ii) there is no reasonable action
which the Servicer could take to make the performance of its duties hereunder
permissible under applicable law. Any such determination permitting the
resignation of the Servicer shall be evidenced as to clause (i) above by an
Opinion of Counsel to such effect delivered to the Trustee. No such resignation
shall become effective until the Trustee or a Successor Servicer shall have
assumed the responsibilities and obligations of the Servicer in accordance with
Section 10.2 hereof. If the Trustee is unable within 120 days of the date of
delivery to it of such Opinion of Counsel to appoint a Successor Servicer, the
Trustee shall serve as Successor Servicer hereunder (but shall have continued
authority to appoint another Person as Successor Servicer).
Section 8.6 Access to Certain Documentation and Information Regarding the
Receivables. The Servicer shall provide to the Trustee and its agents (who
shall be reasonably acceptable to the Servicer) access to the documentation
regarding the Receivables in such cases where the Trustee is required in
connection with the enforcement of the rights of the Investor
Certificateholders, or by applicable statutes or regulations, to review such
documentation, such access being afforded without
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charge but only (i) upon reasonable request, (ii) during normal business hours,
(iii) subject to the Servicer's normal security and confidentiality procedures
and (iv) at offices designated by the Servicer. Nothing in this Section 8.6
shall derogate from the obligation of the Transferor, the Trustee or the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Dealers, and the failure of the Servicer to provide access as
provided in this Section 8.6 as a result of such obligations shall not
constitute a breach of this Section 8.6.
Section 8.7 Delegation of Duties. In the ordinary course of business, the
Servicer may at any time delegate any duties hereunder to any Person who agrees
to conduct such duties in accordance with the Servicer's usual and customary
collection procedures. Any such delegations shall not relieve the Servicer of
its liability and responsibility with respect to such duties, and shall not
constitute a resignation within the meaning of Section 8.5 hereof and the
Servicer will remain jointly and severally liable with such Person for any
amounts which would otherwise be payable pursuant to this Article VIII as if
the Servicer had performed such duty; provided, however, that in the case of any
significant delegation to a Person other than an Affiliate of Green Tree (i)
written notice shall be given to the Trustee and to each Rating Agency of such
delegation, (ii) the Transferor should not have received written notice from
Xxxxx'x that such delegation would result in the lowering or withdrawal of its
then existing rating of any Series or Class of Investor Certificates and (iii)
the Transferor shall not have received written notice from Standard & Poor's
that such delegation would result in the lowering or withdrawal of its then
existing rating of any Series or Class of Investor Certificates.
Section 8.8 Waiver of Servicing Fee. The Servicer may in its discretion
elect to waive all Servicing Fees payable to it with respect to any Monthly
Period.
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ARTICLE IX
PAY OUT EVENTS
Section 9.1 Pay Out Events. If any one of the following events shall
occur:
(a) a failure by the Transferor to convey Receivables in Additional
Accounts to the Trust within five Business Days after the day on which it
is required to convey such Receivables pursuant to this Agreement;
(b) the Transferor or the Servicer (or Green Tree, if it is not the
Servicer) shall file a petition commencing a voluntary case under any
chapter of the Federal bankruptcy laws; or the Transferor or the Servicer
(or Green Tree, as aforesaid) shall file a petition or answer or consent
seeking reorganization, arrangement, adjustment, or composition under any
other similar applicable Federal law, or shall consent to the filing of any
such petition, answer, or consent; or the Transferor or the Servicer (or
Green Tree, as aforesaid), shall appoint, or consent to the appointment of,
a custodian, receiver, liquidator, trustee, assignee, sequestrator or other
similar official in bankruptcy or insolvency of it or of any substantial
part of its property; or the Transferor or the Servicer (or Green Tree, as
aforesaid), shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become
due;
(c) any order for relief against the Transferor or the Servicer (or
Green Tree, if it is not the Servicer), shall have been entered by a court
having jurisdiction in the premises under any chapter of the Federal
bankruptcy laws, and such order shall have continued undischarged or
unstayed for a period of 60 days; or a decree or order by a court having
jurisdiction in the premises shall have been entered approving as properly
filed a petition seeking reorganization, arrangement, adjustment, or
composition of the Transferor or the Servicer (or Green Tree, as
aforesaid), under any other similar applicable Federal law, and such decree
or order shall have continued undischarged or unstayed for a period of 120
days; or a decree or order of a court having jurisdiction in the premises
for the appointment of a custodian, receiver, liquidator, trustee,
assignee, sequestrator, or other similar official in bankruptcy or
insolvency of the Transferor or the Servicer (or Green Tree, as aforesaid),
or of any substantial part of its property or for the winding up or
liquidation of its affairs, shall have been entered, and such decree or
order shall have remained in force undischarged or unstayed for a period of
120 days;
(d) failure on the part of the Transferor or the Servicer (or Green
Tree, as applicable), (i) to make any payment or deposit required by the
terms of this Agreement or the Purchase Agreement on or before the date
occurring five Business Days after the date such payment or deposit is
required to be
9-1
made herein, or (ii) with respect to any Series, to deliver a Distribution
Date Statement within ten Business Days after notice from the Trustee of
such failure to deliver such Distribution Date Statement, or (iii) duly to
observe or perform in any material respect the covenant of the Transferor
set forth in Section 2.5(a) with respect to a Receivable, which failure, in
the case of this clause (iii), has a material adverse effect on the
interests of the Holders of the Investor Certificates and continues
unremedied for a period of 60 days after the date on which notice of such
failure, requiring the same to be remedied, shall have been given to the
Transferor by the Trustee or any Enhancement Provider; provided, however,
that a Pay Out Event shall not be deemed to have occurred if the Transferor
shall have repurchased the related Receivables or, if applicable, all of
the Receivables during such period in accordance with the provisions of
this Agreement; or (iv) duly to observe or perform in any material respect
any other covenants or agreements of the Transferor or the Servicer or
Green Tree, as the case may be, set forth in this Agreement or the Purchase
Agreement, which failure in the case of this clause (iv) has a material
adverse effect on the interests of the Holders of the Investor Certificates
and continues unremedied for a period of 45 days after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Transferor by the Trustee or to the Transferor and
the Trustee by any Enhancement Provider;
(e) any representation or warranty made by Green Tree in the Purchase
Agreement or the Transferor in this Agreement or any information contained
in a computer file or microfiche or written list required to be delivered
by the Transferor pursuant to Section 2.1, 2.6, 2.7 or 2.8, (i) shall prove
to have been incorrect in any material respect when made or when delivered,
and shall continue to be incorrect in any material respect for a period of
60 days after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Transferor by the
Trustee and (ii) as a result of such incorrectness the interests of the
Holders of the Investor Certificates are materially and adversely affected
(excluding, however, the representation and warranty made by the Transferor
pursuant to Section 2.3(j) if the Agreement constitutes the grant of a
perfected security interest in the Receivables and the Collateral Security
and the proceeds thereof under the UCC as then in effect in the State of
Minnesota transferred to the Trust hereunder); provided, however, that a
Pay Out Event shall not be deemed to have occurred under this paragraph if
the Transferor has repurchased the related Receivable or all such
Receivables, if applicable, during such period in accordance with the
provisions of this Agreement; or
(f) the Trust or the Transferor shall become an "investment company"
within the meaning of the Investment Company Act;
then, subject to applicable law, and after the applicable grace period, if any,
an amortization event (a "Trust Pay Out Event") shall occur without any notice
or
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other action on the part of the Trustee, any Agent, the Certificateholders or
any other Beneficiary, immediately upon the occurrence of such event.
Section 9.2 Additional Rights Upon the Occurrence of Certain Events.
(a) If the Transferor shall consent to the appointment of a bankruptcy
trustee or receiver or liquidator for the winding-up or liquidation of its
affairs, or a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a bankruptcy trustee
or receiver or liquidator for the winding-up or liquidation of its affairs shall
have been entered against the Transferor (an "Insolvency Event"), on the day of
such Insolvency Event (the "Appointment Day") the following actions shall be
taken and processes begun:
(i) If an Insolvency Event shall have occurred, the Transferor shall
immediately cease to transfer Receivables to the Trust and shall promptly give
written notice to the Trustee of such Insolvency Event. Notwithstanding any
cessation of the transfer to the Trust of additional Receivables, Receivables
transferred to the Trust prior to the occurrence of such Insolvency Event and
Receivables transferred to the Trust prior to the occurrence of such Involvency
Event and Collections with respect thereto shall continue to be a part of the
Trust and will be a part of the Trust and will be allocated and paid in
accordance with Article IV.
(ii) If an Insolvency Event shall have occurred, this Agreement and the
Trust shall be deemed to have terminated, subject to the liquidation, winding-up
and dissolution procedures described below; provided, however, that within 15
days of the date of written notice to the Trustee, the Trustee shall (i) publish
a notice in an Authorized Newspaper that an Insolvency Event has occurred, that
the Trust has terminated, and that the Trustee intends to sell, dispose of or
otherwise liquidate the Receivables pursuant to this Agreement in a commercially
reasonable manner and on commercially reasonable terms, which shall include the
solicitation of competitive bids (a "Disposition"), and (ii) send written notice
to the Investor Certificateholders describing the provisions of this Section 9.2
and requesting each Investor Certificateholder to advise the Trustee in writing
that it elects one of the following options: (A) the Investor Certificateholder
wishes the Trustee to instruct the Servicer not to effectuate a Disposition, or
(B) the Investor Certificateholder refuses to advise the Trustee as to the
specific action the Trustee shall instruct the Servicer to take, or (C) the
Investor Certificateholder wishes the Servicer to effect a Disposition. If
after 90 days from the day notice pursuant to clause (i) above is first
published (the "Publication Date"), the Trustee shall not have received the
written instruction described in clause (A) above from Holders of Investor
Certificates representing Undivided Interests aggregating in excess of 50% of
the related Invested Amount of each Series (or, in the case of a Series having
more than one Class, each Class of such Series) and the holders of any
Supplemental Certificates or any other interest in the Exchangeable Transferor
Certificate other than the Transferor as provided in Section 6.3(b) for each
Series, (a "Holders' Majority"), the Trustee shall
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instruct the Servicer to effectuate a Disposition, and the Servicer shall
proceed to consummate a Disposition. If, however, with respect to the portion of
the Receivables allocable to any outstanding Series, a Holders' Majority
instruct the Trustee not to effectuate a Disposition of the portion of the
Receivables allocable to such Series, the Trust shall be reconstituted and
continue with respect to such Series pursuant to the terms of this Agreement and
the applicable Supplement (as amended in connection with such reconstitution).
The portion of the Receivables allocable to any Series shall be equal to the sum
of (1) the product of (A) the Transferor Percentage, (B) the aggregate
outstanding Principal Receivables and (C) a fraction, the numerator of which is
the related Investor Percentage of Interest Collections and the denominator of
which is the sum of all Investor Percentages with respect to Interest
Collections for all Series outstanding and (2) the Invested Amount of such
Series. The Transferor or any of its Affiliates shall be permitted to bid for
the Receivables. In addition, the Transferor or any of its Affiliates shall have
the right to match any bid by a third person and be granted the right to
purchase the Receivables at such matched bid price. The Trustee may obtain a
prior determination from any such bankruptcy trustee, receiver or liquidator
that the terms and manner of any proposed Distribution are commercially
reasonable. The provisions of Sections 9.1 and 9.2 shall not be deemed to be
mutually exclusive.
(b) The proceeds from the Disposition pursuant to subsection (a) above
shall be treated as Collections on the Receivables and shall be allocated and
deposited in accordance with the provisions of Article IV; provided, however,
that the proceeds from a Disposition with respect to any Series shall be applied
solely to make payments to such Series; provided, further, that the Trustee
shall determine conclusively in its sole discretion the amount of such proceeds
that are allocable to Interest Collections and the amount of such proceeds that
are allocable to Collections of Principal Receivables. Unless the Trustee
receives written instructions from Investor Certificateholders of one or more
Series to continue the Trust with respect to such Series as provided in
subsection 9.2(a) above, on the day following the last Distribution Date in the
Monthly Period during which such proceeds are distributed to the Investor
Certificateholders of each Series, the Trust shall terminate.
(c) The Trustee may appoint an agent or agents to assist with its
responsibilities pursuant to this Article IX with respect to competitive bids.
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ARTICLE X
SERVICER DEFAULTS
Section 10.1 Servicer Defaults. If any one of the following events (a
"Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or
deposit or to give instructions or notice to the Trustee pursuant to
Article IV or to instruct the Trustee to make any required drawing,
withdrawal, or payment under any Enhancement on or before the date
occurring five Business Days after the date such payment, transfer,
deposit, withdrawal or drawing or such instruction or notice is required to
be made or given, as the case may be, under the terms of this Agreement;
provided, however, that any such failure caused by a non-willful act of the
Servicer shall not constitute a Servicer Default if the Servicer promptly
remedies such failure within five Business Days after receiving notice of
such failure or otherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform in
any respect any other covenants or agreements of the Servicer set forth in
this Agreement, which has a material adverse effect on the Investor
Certificateholders of any Series and which continues unremedied for a
period of 60 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by
the Trustee, or to the Servicer and the Trustee by the Holders of Investor
Certificates evidencing Undivided Interests aggregating not less than 50%
of the Invested Amount of any Series materially adversely affected thereby
and continues to materially adversely affect such Investor
Certificateholders for such period;
(c) any representation, warranty or certification made by the
Servicer in this Agreement or in any certificate delivered pursuant to this
Agreement shall prove to have been incorrect when made, which has a
material adverse effect on the Investor Certificateholders of any Series
and which continues to be incorrect in any material respect for a period of
60 days after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Servicer by the
Trustee, or to the Servicer and the Trustee by the Holders of Investor
Certificates evidencing Undivided Interests aggregating not less than 50%
of the Invested Amount of any Series materially adversely affected thereby
and continues to materially adversely affect such Investor
Certificateholders for such period; or
(d) the Servicer shall consent to the appointment of a bankruptcy
trustee or receiver or liquidator in any bankruptcy proceeding or any other
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to the Servicer or of or relating to all
or
10-1
substantially all of its property; or a decree or order of a court or
agency or supervisory authority having jurisdiction in the premises for the
appointment of a bankruptcy trustee or receiver or liquidator in any
bankruptcy proceeding or any other insolvency, readjustment of debt,
marshalling 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 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 any assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations;
then, so long as such Servicer Default shall not have been remedied, either the
Trustee, or the Holders of Investor Certificates evidencing Undivided Interests
aggregating more than 50% of the Aggregate Invested Amount, by notice then given
in writing to the Servicer (and to the Trustee if given by the Investor
Certificateholders) (a "Termination Notice"), may terminate all of the rights
and obligations of the Servicer as Servicer under this Agreement. After receipt
by the Servicer of such Termination Notice, and on the date that a Successor
Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all
authority and power of the Servicer under this Agreement shall pass to and be
vested in a Successor Servicer; and, without limitation, the Trustee is hereby
authorized and empowered (upon the failure of the Servicer to cooperate) to
execute and deliver, on behalf of the Servicer, as attorney-in-fact or
otherwise, all documents and other instruments upon the failure of the Servicer
to execute or deliver such documents or instruments, and to do and accomplish
all other acts or things necessary or appropriate to effect the purposes of
such transfer of servicing rights and obligations. The Servicer agrees to
cooperate with the Trustee and such Successor Servicer in effecting the
termination of the responsibilities and rights of the Servicer to conduct
servicing hereunder including, without limitation, the transfer to such
Successor Servicer of all authority of the Servicer to service the Receivables
provided for under this Agreement, including, without limitation, all authority
over all Collections which shall on the date of transfer be held by the Servicer
for deposit, or which have been deposited by the Servicer, in the Collection
Account, the Excess Funding Account, the Interest Funding Account or the
Principal Account, and any Series Account, or which shall thereafter be received
with respect to the Receivables. The Servicer shall promptly transfer its
electronic records or electronic copies thereof relating to the Receivables to
the Successor Servicer in such electronic form as the Successor Servicer may
reasonably request and shall promptly transfer to the Successor Servicer all
other records, correspondence and documents necessary for the continued
servicing of the Receivables in the manner and at such times as the Successor
Servicer shall reasonably request. To the extent that compliance with this
Section 10.1 shall require the Servicer to disclose to the Successor Servicer
information of any kind which the Servicer deems to be confidential, the
Successor Servicer shall be required to enter into such customary licensing and
confidentiality
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agreements as the Servicer shall deem necessary to protect its interests. The
Servicer shall, on the date of any servicing transfer, transfer all of its
rights and obligations under the Enhancement with respect to any Series to the
Successor Servicer. In connection with any service transfer, all reasonable
costs and expenses (including attorneys' fees) incurred in connection with
transferring the records, correspondence and other documents with respect to the
Receivables and the other Trust Property to the Successor Servicer and amending
this Agreement to reflect such succession as Successor Servicer pursuant to this
Section 10.1 and Section 10.2 shall be paid by the Servicer (unless the Trustee
is acting as the Servicer on a temporary basis, in which case the original
Servicer shall be responsible therefor) upon presentation of reasonable
documentation of such costs and expenses.
Notwithstanding the foregoing, a delay in or failure of performance
referred to in subsection 10.1(a) for a period of five Business Days or under
subsection 10.l(b) or (c) for a period of 60 days, shall not constitute a
Servicer Default if such delay or failure could not be prevented by the exercise
of reasonable diligence by the Servicer and such delay or failure was caused by
an act of God or the public enemy, acts of declared or undeclared war, public
disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire,
hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods,
power outages, bank closings, communications outages, computer failure or
similar causes. The preceding sentence shall not relieve the Servicer from
using its best efforts to perform its obligations in a timely manner in
accordance dance with the terms of this Agreement and the Servicer shall provide
the Trustee, any Enhancement Provider, the Transferor and the Holders of
Investor Certificates with an Officer's Certificate giving prompt notice of such
failure or delay by it, together with a description of the cause of such failure
or delay and its efforts so to perform its obligations.
Section 10.2 Trustee to Act; Appointment of Successor.
(a) On and after the receipt by the Servicer of a Termination Notice
pursuant to Section 10.1, the Servicer shall continue to perform all servicing
functions under this Agreement until the date specified in the Termination
Notice or as otherwise specified by the Trustee in writing or, if no such date
is specified in such Termination Notice, or otherwise specified by the Trustee,
until a date mutually agreed upon by the Servicer and Trustee. The Trustee
shall notify each Rating Agency of such removal of the Servicer. The Trustee
shall, as promptly as possible after the giving of a Termination Notice, appoint
a successor servicer (the "Successor Servicer"), and such Successor Servicer
shall accept its appointment by a written assumption in a form acceptable to the
Trustee. If such Successor Servicer is unable to accept such appointment, the
Trustee may obtain bids from any potential successor servicer. If the Trustee
is unable to obtain any bids from any potential successor servicer and the
Servicer delivers an Officer's Certificate to the effect that it cannot in good
faith cure the Servicer Default which gave rise to a transfer of servicing, and
if the Trustee is legally unable to act as Successor Servicer, then the Trustee
shall offer the Transferor the right to accept reassignment of all of the
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Receivables for an amount equal to the Aggregate Invested Amount on the date of
such purchase plus all interest accrued but unpaid on all of the outstanding
Investor Certificates at the applicable Certificate Rate through the date of
such purchase; provided, however, that no such purchase by the Transferor shall
occur unless the Transferor shall deliver an Opinion of Counsel reasonably
acceptable to the Trustee that such purchase would not constitute a fraudulent
conveyance of the Transferor. The proceeds of such sale shall be deposited in
the Distribution Account or any Series Account, as provided in the related
Supplement, for distribution to the Investor Certificateholders of each
outstanding Series pursuant to Section 12.3 of the Agreement. In the event that
a Successor Servicer has not been appointed and has not accepted its appointment
at the time when the Servicer ceases to act as Servicer, the Trustee without
further action shall automatically be appointed the Successor Servicer (but
shall have continued authority to appoint another Person as Successor Servicer).
The Trustee may delegate any of its servicing obligations to an affiliate or
agent of the Trustee in accordance with Article III hereof. Any such delegations
shall not relieve the Trustee of its liability and responsibility with respect
to such duties. Notwithstanding the above, the Trustee shall, if it is legally
unable to act, petition a court of competent jurisdiction to appoint any
established financial institution having, in the case of an entity that is
subject to risk-based capital adequacy requirements, risk-based capital of at
least $50,000,000 or, in the case of an entity that is not subject to risk-based
capital requirements, having a net worth of not less than $50,000,000 and whose
regular business includes the servicing of receivables similar to the
Receivables as the Successor Servicer hereunder.
(b) Upon its appointment, the Successor Servicer shall be the successor in
all respects to the Servicer with respect to servicing functions under this
Agreement and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
hereof, and all references in this Agreement to the Servicer shall be deemed to
refer to the Successor Servicer. Any Successor Servicer, by its acceptance of
its appointment, will automatically agree to be bound by the terms and
provisions of each Enhancement.
(c) In connection with such appointment and assumption, the Trustee shall
be entitled to such compensation, or may make such arrangements for the
compensation of the Successor Servicer out of Collections, as it and such
Successor Servicer shall agree; provided, however, that no such compensation
shall be in excess of the Servicing Fee permitted to the Servicer pursuant to
Section 3.2. The Transferor agrees that if the Servicer is terminated
hereunder, it will agree to deposit a portion of the Collections in respect of
Imputed Yield Receivables that it is entitled to receive pursuant to Article IV
to pay its ratable share of the compensation of the Successor Servicer.
(d) All authority and power granted to the Successor Servicer under this
Agreement shall automatically cease and terminate upon termination of the Trust
pursuant to Section 12.1 and shall pass to and be vested in the Transferor and,
without limitation, the Transferor is hereby authorized and empowered to execute
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and deliver, on behalf of the Successor Servicer, as attorney-in-fact or
otherwise, all documents and other instruments, and to do and accomplish all
other acts or things necessary or appropriate to effect the purposes of such
transfer of servicing rights. The Successor Servicer agrees to cooperate with
the Transferor in effecting the termination of the responsibilities and rights
of the Successor Servicer to conduct servicing on the Receivables. The
Successor Servicer shall transfer its electronic records relating to the
Receivables to the Transferor in such electronic form as the Transferor may
reasonably request and shall transfer all other records, correspondence and
documents to the Transferor in the manner and at such times as the Transferor
shall reasonably request. To the extent that compliance with this Section 10.2
shall require the Successor Servicer to disclose to the Transferor information
of any kind which the Successor Servicer deems to be confidential, the
Transferor shall be required to enter into such customary licensing and
confidentiality agreements as the Successor Servicer shall deem necessary to
protect its interests.
Section 10.3 Notification to Certificateholders. Upon the Servicer
becoming aware of any Servicer Default, the Servicer shall give prompt written
notice thereof to the Trustee and any Enhancement Provider and, upon receipt of
such written notice, the Trustee shall give notice to the Investor
Certificateholders at their respective addresses appearing in the Certificate
Register. Upon any termination or appointment of a Successor Servicer pursuant
to this Article X, the Trustee shall give prompt written notice thereof to
Investor Certificateholders at their respective addresses appearing in the
Certificate Register.
Section 10.4 Waiver of Past Defaults. The Holders of Investor
Certificates evidencing Undivided Interests aggregating not less than 66-2/3% of
the Invested Amount of each Series materially adversely affected by any default
by the Servicer or Transferor may, on behalf of all Certificateholders of such
Series, waive any default by the Servicer or Transferor in the performance of
its obligations hereunder and its consequences, except a default in the failure
to make any required deposits or payments of interest or principal relating to
such Series pursuant to Article IV, which default does not result from the
failure of the Paying Agent to perform its obligations to make any required
deposits or payments of interest and principal in accordance with Article IV.
Upon any such waiver of a past default, such default shall cease to exist, and
any default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
10-5
ARTICLE XI
THE TRUSTEE
Section 11.1 Duties of Trustee.
(a) The Trustee, prior to the occurrence of any Servicer Default of which a
Responsible Officer of the Trustee has actual knowledge and after the curing of
all Servicer Defaults which may have occurred, undertakes to perform such duties
and only such duties as are specifically set forth in this Agreement, and no
implied covenants or duties shall be read into this Agreement against the
Trustee. If a Responsible Officer has received written notice that a Servicer
Default has occurred (and such Servicer Default has not been cured or waived),
the Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs; provided, however, that if the Trustee shall assume
the duties of the Servicer pursuant to Section 8.5 or 10.2, the Trustee in
performing such duties shall use the degree of skill and attention customarily
exercised by a servicer with respect to comparable receivables that it services
for itself or others.
(b) The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any provision
of this Agreement, shall examine them to determine whether they substantially
conform to the requirements of this Agreement. The Trustee shall retain all
such items for at least one year after receipt and shall make such items
available for inspection by any Investor Certificateholder at the Corporate
Trust Office, such inspection to be made during regular business hours and upon
reasonable prior notice to the Trustee.
(c) Subject to subsection 11.1(a), no provision of this Agreement shall be
construed to relieve the Trustee from liability for its own negligent action,
its own negligent failure to act or its own misconduct; provided, however, that:
(i) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of Investor Certificates
evidencing Undivided Interests aggregating more than 50% of the Invested
Amount of any Series relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee with respect to such
11-1
Series, or exercising any trust or power conferred upon the Trustee with
respect to such Series, under this Agreement; and
(iii) the Trustee shall not be charged with knowledge of any
failure by the Servicer referred to in clauses (a) and (b) of Section 10.1
or of any breach by the Servicer contemplated by clause (c) of Section 10.1
or any Pay Out Event unless a Responsible Officer of the Trustee obtains
actual knowledge of such failure, breach or Pay Out Event or the Trustee
receives written notice of such failure, breach or Pay Out Event from the
Servicer or any Holders of Investor Certificates evidencing Undivided
Interests aggregating not less than 10% of the Invested Amount of any
Series adversely affected thereby.
(d) The Trustee shall not be required to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance if, any
of the obligations of the Servicer under this Agreement except during such time,
if any, as the Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Servicer in accordance with the terms of
this Agreement.
(e) Except for actions expressly authorized by this Agreement, the Trustee
shall take no action reasonably likely to impair the interests of the Trust in
any Receivable now existing or hereafter created or to impair the value of any
Receivable now existing or hereafter created.
(f) Except as provided in this Agreement, the Trustee shall have no power
to vary the corpus of the Trust.
(g) If a Responsible Officer of the Trustee has received written notice
that the Paying Agent or the Transfer Agent and Registrar shall fail to perform
any obligation, duty or agreement in the manner or on the day required to be
performed by the Paying Agent or the Transfer Agent and Registrar, as the case
may be, under this Agreement, the Trustee shall be obligated promptly upon its
obtaining knowledge thereof by a Responsible Officer of the Trustee to perform
such obligation, duty or agreement in the manner so required.
(h) If the Transferor has agreed to transfer any of its wholesale
receivables (other than the Receivables) to another Person, upon the written
request of the Transferor, the Trustee on behalf of the Trust will enter into
such intercreditor agreements with the transferee of such receivables as are
customary and necessary to identify separately the rights, if any, of the Trust
and such other Person in the Transferor's wholesale receivables; provided,
however, that the Trust shall not be required to enter into any intercreditor
agreement that could adversely affect the
11-2
interests of the Certificateholders or the Trustee and, upon the request of the
Trustee, the Transferor will deliver an Opinion of Counsel on any matters
relating to such intercreditor agreement, reasonably requested by the Trustee.
Section 11.2 Certain Matters Affecting the Trustee. Except as otherwise
provided in Section 11.1:
(a) the Trustee may rely on and shall be protected in acting on, or in
refraining from acting in accordance with, the initial report, the Daily
Report, the Settlement Statement, the Annual Servicer's Certificate, the
monthly payment instructions and notification to the Trustee, the monthly
Certificateholder's statement, any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented to it pursuant to this Agreement by the proper party or parties;
(b) the Trustee may consult with counsel, and the advice or any
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(c) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement or any Enhancement, or to
institute, conduct or defend any litigation hereunder or in relation
hereto, at the request, order or direction of any of the Certificateholders
or any Enhancement Provider, pursuant to the provisions of this Agreement,
unless such Certificateholders or Enhancement Provider shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligations, upon the
occurrence of any Servicer Default (which has not been cured or waived) of
which a Responsible Officer of the Trustee has knowledge, to exercise such
of the rights and powers vested in it by this Agreement and any
Enhancement, and to use the same degree of care and skill in its exercise
as a prudent person would exercise or use under the circumstances in the
conduct of his own affairs;
(d) the Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Agreement;
(e) the Trustee shall not be bound to make any investigation into the
facts of matters stated in the initial report, the Daily Report, the
Settlement Statement, the Annual Servicer's Certificate, the monthly
11-3
payment instructions and notification to the Trustee, the monthly
Certificateholder's statement, any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do by
Holders of Investor Certificates evidencing Undivided Interests aggregating
more than 50% of the Invested Amount of any Series which could be adversely
affected if the Trustee does not perform such acts;
(f) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent, attorney or
custodian appointed with due care by it hereunder;
(g) except as may be required by subsection 11.1(a), the Trustee shall
not be required to make any initial or periodic examination of any
documents or records related to the Receivables for the purpose of
establishing the presence or absence of defects, the compliance by the
Transferor with its representations and warranties or for any other
purpose;
(h) whenever in the administration of this Agreement the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate; and
(i) the right of the Trustee to perform any discretionary act
enumerated in this Agreement or any Supplement shall not be construed as a
duty, and the Trustee shall not be answerable for performance of any such
act.
Section 11.3 Trustee Not Liable for Recitals in Certificates. The Trustee
assumes no responsibility for the correctness of the recitals contained herein
and in the Certificates (other than the certificate of authentication on the
Certificates). Except as set forth in Section 11.15, the Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates (other than the certificate of authentication on the Certificates)
or of any Receivable or related document. The Trustee shall not be accountable
for the use or application by the Transferor of any of the Certificates or of
the proceeds of such Certificates, or for the use or application of any funds
paid to the Transferor in respect of the Receivables or deposited in or
withdrawn from the Collection Account, the Excess Funding Account, the Principal
Account or the Interest Funding Account, or any Series Account or other accounts
now or hereafter established to effectuate the transactions contemplated herein
and in accordance with the terms hereof. The Trustee shall have no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or Lien granted to it hereunder (unless the Trustee shall have
become the Successor
11-4
Servicer) or to prepare or file any Securities and Exchange
Commission filing for the Trust or to record this Agreement or any Supplement.
Section 11.4 Trustee May Own Certificates. The Trustee in its individual
or any other capacity may become the owner or pledgee of Investor Certificates
and may deal with the Transferor, the Servicer or any Enhancement Provider with
the same rights as it would have if it were not the Trustee. The Trustee in its
capacity as Trustee shall exercise its duties and responsibilities hereunder
independent of and without reference to its investment, if any, in Investor
Certificates.
Section 11.5 The Servicer to Pay Trustee's Fees and Expenses. The
Servicer covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to receive, 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 the Trustee in the execution of
the trust hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Trustee, and, subject to Section 8.4, the
Servicer will pay or reimburse the Trustee (without reimbursement from any
Investor Account, any Series Account or otherwise) upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Agreement (including the
reasonable fees and expenses of its agents and counsel) except any such expense,
disbursement or advance as may arise from its own negligence or bad faith and
except as provided in the following sentence. If the Trustee is appointed
Successor Servicer pursuant to Section 10.2, the provisions of this Section 11.5
shall not apply to expenses, disbursements and advances made or incurred by the
Trustee in its capacity as Successor Servicer (which shall be covered out of the
Servicing Fee).
The obligations of the Servicer under this Section 11.5 shall survive the
termination of the Trust and the resignation or removal of the Trustee.
Section 11.6 Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times (a) be a corporation organized and doing business under the
laws of the United States of America or any state thereof authorized under such
laws to exercise corporate trust powers, having a long-term unsecured debt
rating of at least Baa3 by Xxxxx'x, having, in the case of an entity that is
subject to risk-based capital adequacy requirements, risk-based capital of at
least $50,000,000 or, in the case of an entity that is not subject to risk-based
capital adequacy requirements, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authority and (b) not be a Related Person. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purpose of
this Section 11.6, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease
to be
11-5
eligible in accordance with the provisions of this Section 11.6, the Trustee
shall resign immediately in the manner and with the effect specified in Section
11.7.
Section 11.7 Resignation or Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the Trust
hereby created by giving written notice thereof to the Servicer. Upon receiving
such notice of resignation, the Servicer shall promptly appoint a successor
trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted such
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 11.6 hereof and shall fail to resign after
written request therefor by the Transferor, or if at any time the Trustee shall
be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Transferor may, but shall not be required to, remove the Trustee and promptly
appoint a successor trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee.
(c) If (i) the Trustee shall fail to perform any of its obligations
hereunder, (ii) a Certificateholder shall deliver written notice of such failure
to the Trustee, and (iii) the Trustee shall not have corrected such failure for
60 days thereafter, then the Holders of Investor Certificates representing more
than 50% of the Invested Amount shall have the right to remove the Trustee and
(with the consent of the Transferor, which shall not be unreasonably withheld)
promptly appoint a successor trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 11.7 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 11.8 hereof and any liability of the Trustee arising
hereunder shall survive such appointment of a successor trustee. Notice of any
resignation or removal of the Trustee and appointment of a successor trustee
shall be provided to Xxxxx'x and Standard & Poor's by the Servicer in a prompt
manner.
Section 11.8 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 11.7 hereof
shall execute, acknowledge and deliver to the Transferor and to its predecessor
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Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as Trustee
herein. The predecessor Trustee shall deliver to the successor trustee all
documents and statements held by it hereunder, and the Transferor and the
predecessor Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor trustee all such rights, powers, duties and
obligations.
(b) No successor trustee shall accept appointment as provided in this
Section 11.8 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 11.6 hereof.
(c) Upon acceptance of appointment by a successor trustee as provided in
this Section 11.8, such successor trustee shall mail notice of such succession
hereunder to all Certificateholders at their addresses as shown in the
Certificate Register.
Section 11.9 Merger or Consolidation of Trustee. Any Person into which
the Trustee may be merged or converted or with which it may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all
of the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be eligible under the
provisions of Section 11.6 hereof, 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.
Section 11.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust may at the time be located, the Trustee shall have the
power and may execute and deliver all instruments to appoint one or more Persons
to act as a co-trustee or co-trustees, or separate trustee or separate trustees,
of all or any part of the Trust, and to vest in such Person or Persons, in such
capacity and for the benefit of the Certificateholders, such title to the trust,
or any part thereof, and, subject to the other provisions of this Section 11.10,
such powers, duties, obligations, rights and trusts as the Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
11.6 and no notice to Certificateholders of the appointment of any co-trustee or
separate trustee shall be required under Section 11.8 hereof.
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(b) Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any laws of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Servicer hereunder), the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article XI. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicer.
(d) Any separate trustee or co-trustee may at any time constitute the
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect to this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 11.11 Tax Returns. Consistent with Section 3.7, the Trustee shall
not file any Federal tax returns on behalf of the Trust; provided, however, that
if a class of Certificates is issued that will be characterized as a partnership
interest for federal income tax purposes, partnership information returns shall
be prepared and signed
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by the Transferor, and the Transferor shall be the "tax matters partner" of such
partnership pursuant to the Code. In the event the Trust shall be required to
file tax returns, the Servicer shall at its expense prepare or cause to be
prepared any tax returns required to be filed by the Trust and, to the extent
possible, shall remit such returns to the Trustee for signature at least five
days before such returns are due to be filed. The Trustee is hereby authorized
to sign any such return on behalf of the Trust. The Servicer shall prepare or
shall cause to be prepared all tax information required by law to be distributed
to Certificateholders and shall deliver such information to the Trustee at least
five days prior to the date it is required by law to be distributed to
Certificateholders. The Trustee, upon request, will furnish the Servicer with
all such information known to the Trustee as may be reasonably required in
connection with the preparation of all tax returns of the Trust and shall, upon
request, execute such return. In no event shall the Trustee be liable for any
liabilities, costs or expenses of the Trust, the Investor Certificateholders or
the Certificate Owners arising under any tax law, including without limitation
federal, state, local or foreign income or excise taxes or any other tax imposed
on or measured by income (or any interest or penalty or addition with respect
thereto or arising from a failure to comply therewith).
Section 11.12 Trustee May Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement or any
Series of Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of any Series of Certificateholders in respect of which such
judgment has been obtained.
Section 11.13 Suits for Enforcement. If a Servicer Default of which a
Responsible Officer of the Trustee has knowledge shall occur and be continuing,
the Trustee, in its discretion may, subject to the provisions of Section 10.1,
proceed to protect and enforce its rights and the rights of any Series of
Certificateholders under this Agreement by a suit, action or proceeding in
equity or at law or otherwise, whether for the specific performance of any
covenant or agreement contained in this Agreement or in aid of the execution of
any power granted in this Agreement or for the enforcement of any other legal,
equitable or other remedy as the Trustee, being advised by counsel, shall deem
most effectual to protect and enforce any of the rights of the Trustee or any
Series of Certificateholders.
Section 11.14 Rights of Certificateholders to Direct Trustee. Holders of
Investor Certificates evidencing Undivided Interests aggregating more than 50%
of the Aggregate Invested Amount (or, with respect to any remedy, trust or power
that does not relate to all Series, 50% of the aggregate Invested Amount of the
Investor Certificates of all Series to which such remedy, trust or power
relates) shall have the right to direct the time, method, and place of
conducting any proceeding for any
11-9
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee; provided, however, that Holders of Investor Certificates
aggregating more than 50% of the aggregate Invested Amount of any Class may
direct the Trustee to exercise its rights under Section 8.6; provided, further,
that, subject to Section 11.1, the Trustee shall have the right to decline to
follow any such direction if the Trustee being advised by counsel determines
that the action so directed may not lawfully be taken, or if the Trustee in good
faith shall, by a Responsible Officer or Responsible Officers of the Trustee,
determine that the proceedings so directed would be illegal or involve it in
personal liability or be unduly prejudicial to the rights of Certificateholders
not parties to such direction; and provided, further, that nothing in this
Agreement shall impair the right of the Trustee to take any action deemed proper
by the Trustee and which is not inconsistent with such direction of such Holders
of Investor Certificates.
Section 11.15 Representations and Warranties of Trustee. The Trustee
represents and warrants that:
(i) the Trustee is a corporation organized, existing and authorized to
engage in the business of banking under the laws of the State of its
incorporation;
(ii) the Trustee is an entity that satisfies the eligibility
requirements of Section 11.6;
(iii) the Trustee has full power, authority and right to execute,
deliver and perform this Agreement, and has taken all necessary action to
authorize the execution, delivery and performance by it of this Agreement;
and
(iv) this Agreement has been duly executed and delivered by the
Trustee.
Section 11.16 Maintenance of Office or Agency. The Trustee will maintain
at its expense an office or offices, or agency or agencies, where notices and
demands to or upon the Trustee in respect of the Certificates and this Agreement
may be served. The Trustee initially appoints its Corporate Trust Office as its
office for such purposes. The Trustee will give prompt written notice to the
Servicer and to Certificateholders (or in the case of Holders of Bearer
Certificates, in the manner provided for in the related Supplement) of any
change in the location of the Certificate Register or any such office or agency.
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ARTICLE XII
TERMINATION
Section 12.1 Termination of Trust.
(a) The respective obligations and responsibilities of the Transferor, the
Servicer and the Trustee created hereby (other than the obligation of the
Trustee to make payments to Certificateholders as hereafter set forth) shall
terminate, except with respect to the duties described in Section 8.4 and 11.5
and subsection 12.3(b), on the Trust Termination Date; provided, however, that
the Trust shall not terminate on the date specified in clause (i) of the
definition of "Trust Termination Date" if each of the Servicer and the Holder of
the Exchangeable Transferor Certificate notify the Trustee in writing, not later
than five Business Days preceding such date, that they desire that the Trust not
terminate on such date, which notice (such notice, a "Trust Extension") shall
specify the date on which the Trust shall terminate (such date, the "Extended
Trust Termination Date"); provided, however, that the Extended Trust Termination
Date shall be no later than [Closing Date], 2035. The Servicer and the Holder
of the Exchangeable Transferor Certificate may, on any date following the Trust
Extension, so long as no Series of Certificates is outstanding, deliver a notice
in writing to the Trustee changing the Extended Trust Termination Date.
(b) In the event that (i) the Trust has not terminated by the Distribution
Date occurring in the second month preceding the Trust Termination Date, and
(ii) the Invested Amount of any Series, exclusive of any Transferor Retained
Class (after giving effect to all transfers, withdrawals, deposits and drawings
to occur on such date and the payment of principal on any Series of Certificates
to be made on the related Distribution Date during such month pursuant to
Article IV), would be greater than zero, the Servicer shall sell within 30 days
after such Transfer Date an amount of Receivables up to the remaining Invested
Amount if it can do so in a commercially reasonable manner. The Servicer shall
notify each Enhancement Provider of the proposed sale of the Receivables and
shall provide each Enhancement Provider an opportunity to bid on the
Receivables. The Transferor shall have the right of first refusal to purchase
the Receivables on terms equivalent to the best purchase offer as determined by
the Trustee in its sole discretion. The proceeds of any such sale shall be
treated as Collections on the Receivables and shall be allocated and deposited
in accordance with Article IV; provided, however, that the Trustee shall
determine conclusively in its sole discretion the amount of such proceeds which
are allocable to Imputed Yield Collections and the amount of such proceeds which
are allocable to Principal Collections. During such thirty-day period, the
Servicer shall continue to collect payments on the Receivables and allocate and
deposit such payments in accordance with the provisions of Article IV.
(c) All principal or interest with respect to any Series of Investor
Certificates shall be due and payable no later than the Series Termination Date
with
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respect to such Series. Unless otherwise provided in a Supplement, in the
event that the Invested Amount of any Series of Certificates is greater than
zero, exclusive of any Class held by the Transferor, on its Series Termination
Date (the "Affected Series"), after giving effect to all transfers, withdrawals,
deposits and drawings to occur on such date and the payment of principal to be
made on such Series on such date, and the Trustee will sell or cause to be sold,
and the Trustee will pay the proceeds to all Certificateholders of such Series
pro rata in final payment of all principal of and accrued interest on such
Series of Certificates or, if any Class of such Series is subordinated, in order
of their respective seniorities, an amount of Principal Receivables and the
related Imputed Yield Receivables (or interests therein) up to 110% of the
Invested Amount of such Series at the close of business on such date (but the
amount of such Principal Receivables not to be more than an amount of
Receivables equal to the sum of (1) the product of (A) the Transferor
Percentage, (B) the aggregate outstanding Principal Receivables and (C) a
fraction the numerator of which is the Invested Amount of such Series on such
date and the denominator of which is the sum of the Invested Amounts of all
Series on such Date and (2) the Invested Amount of such Series). Receivables on
which the Dealer has not made the full monthly payment for the prior months
shall be deemed to be in default for purposes of this Section 12.1(c) to the
extent that the cash allocated to any Class of Transferor Retained Certificates
of such Series pursuant to a sale under Section 12.1(c) is less than the amount
that would have been allocated to the Exchangeable Transferor Certificate and
the Transferor Retained Certificates had the proceeds from such sale been
allocated pursuant to Section 4.3. The Servicer shall notify each Enhancement
Provider of the proposed sale of such Receivables and shall provide each
Enhancement Provider an opportunity to bid on such Receivables. The Transferor
shall be permitted to purchase such Receivables in such case and shall have a
right of first refusal with respect thereto to the extent of a bona fide offer
by an unrelated third party or to the extent the Receivables represent Defaulted
Receivables. Any proceeds of such sale in excess of such principal and interest
paid shall be paid to the Holder of the Exchangeable Transferor Certificate.
Upon such Series Termination Date with respect to the applicable Series of
Certificates, final payment of all amounts allocable to any Investor
Certificates of such Series shall be made in the manner provided in Section
12.3.
Section 12.2 Optional Termination. (a) If so provided in any Supplement,
the Transferor may, but shall not be obligated to, cause a final distribution to
be made in respect of the related Series of Certificates on a Distribution Date
specified in such Supplement by depositing into the Distribution Account or the
applicable Series Account, not later than the Transfer Date preceding such
Distribution Date, for application in accordance with Section 12.3, the amount
specified in such Supplement; [provided, however, that if the short-term
deposits or long-term unsecured debt obligations of the Transferor are not rated
at the time of such purchase of Receivables [at least P-3 or Baa3, respectively,
by Xxxxx'x], no such event shall occur unless the Transferor shall deliver to
the Trustee, with a copy to [Xxxxx'x], an Opinion of Counsel that such deposit
into the Distribution Account or any Series
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Account as provided in the related Supplement would not constitute a fraudulent
conveyance of the Transferor].
(b) The amount deposited pursuant to subsection 12.2(a) shall be paid to
the Investor Certificateholders of the related Series pursuant to Section 12.3
on the related Distribution Date following the date of such deposit. All
Certificates of a Series with respect to which a final distribution has been
made pursuant to subsection 12.2(a) shall be delivered by the Holder to, and be
canceled by the Transfer Agent and Registrar and be disposed of in a manner
satisfactory to the Trustee and the Transferor. The Invested Amount of each
Series with respect to which a final distribution has been made pursuant to
subsection 12.2(a) shall, for the purposes of the definition of "Transferor
Interest," be deemed to be equal to zero on the Distribution Date following the
making of the deposit, and the Transferor Interest shall thereupon be deemed to
have been increased by the Invested Amount of such Series.
Section 12.3 Final Payment with Respect to any Series.
(a) Written notice of any termination, specifying the Distribution Date
upon which the Investor Certificateholders of any Series may surrender their
Certificates for payment of the final distribution with respect to such Series
and cancellation, shall be given (subject to at least four Business Days' prior
notice from the Servicer to the Trustee) by the Trustee to Investor
Certificateholders of such Series mailed not later than the fifth day of the
month of such final distribution (or in the manner provided by the Supplement
relating to such Series) specifying (i) the Distribution Date (which shall be
the Distribution Date in the month (x) in which the deposit is made pursuant to
subsection 2.4(e), 9 2(a), 10.2(a), or 12.2(a) of the Agreement or such other
section as may be specified in the related Supplement, or (y) in which the
related Series Termination Date occurs) upon which final payment of such
Investor Certificates will be made upon presentation and surrender of such
Investor Certificates at the office or offices therein designated (which, in the
case of Bearer Certificates, shall be outside the United States), (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made
only upon presentation and surrender of the Investor Certificates at the office
or offices therein specified. The Servicer's notice to the Trustee in
accordance with the preceding sentence shall be accompanied by an Officer's
Certificate setting forth the information specified in Article V of this
Agreement covering the period during the then current calendar year through the
date of such notice and setting forth the date of such final distribution. The
Trustee shall give such notice to the Transfer Agent and Registrar and the
Paying Agent at the time such notice is given to such Investor
Certificateholders.
(b) Notwithstanding the termination of the Trust pursuant to subsection
12.1(a) or the occurrence of the Series Termination Date with respect to any
Series, all funds then on deposit in the Excess Funding Account, the Interest
Funding Account, the Principal Account, the Distribution Account or any Series
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Account applicable to the related series shall continue to be held in trust for
the benefit of the Certificateholders of the related Series and the Paying Agent
or the Trustee shall pay such funds to the Certificateholders of the related
Series upon surrender of their Certificates (which surrenders and payments, in
the case of Bearer Certificates, shall be made only outside the United States).
In the event that all of the Investor Certificateholders of any Series shall not
surrender their Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Trustee shall give a second
written notice (or, in the case of Bearer Certificates, publication notice) to
the remaining Investor Certificateholders of such Series upon receipt of the
appropriate records from the Transfer Agent and Registrar to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one and one half years after the second notice with respect
to a Series, all the Investor Certificates of such Series shall not have been
surrendered for cancellation, the Trustee may take appropriate steps or may
appoint an agent to take appropriate steps, to contact the remaining Investor
Certificateholders of such Series concerning surrender of their Certificates,
and the cost thereof shall be paid out of the funds in the Distribution Account
or any Series Account held for the benefit of such Investor Certificateholders.
The Trustee and the Paying Agent shall pay to the Transferor upon request any
monies held by them for the payment of principal or interest which remains
unclaimed for two years. After payment to the Transferor, Investor
Certificateholders entitled to the money must look to the Transferor for payment
as general creditors unless an applicable abandoned property law designates
another Person.
(c) All Certificates surrendered for payment of the final distribution with
respect to such Certificates and cancellation shall be canceled by the Transfer
Agent and Registrar and be disposed of in a manner satisfactory to the Trustee
and the Transferor.
Section 12.4 Termination Rights of Holder of Exchangeable Transferor
Certificate. Upon the termination of the Trust pursuant to Section 12.1, and
after payment of all amounts due hereunder on or prior to such termination and
the surrender of the Exchangeable Transferor Certificate, the Trustee shall
execute a written reconveyance substantially in the form of Exhibit J pursuant
to which it shall reconvey to the Holder of the Exchangeable Transferor
Certificate (without recourse, representation or warranty) all right, title and
interest of the Trust in the Receivables, whether then existing or thereafter
created, all moneys due or to become due with respect thereto (including all
amounts theretofore posted as Imputed Yield Receivables) allocable to the Trust
pursuant to any Supplement, except for amounts held by the Trustee pursuant to
subsection 12.3(b). The Trustee shall execute and deliver such instruments of
transfer and assignment, in each case prepared by the Transferor and without
recourse, representation or warranty (other than a warranty that such property
is conveyed free and clear of any Lien of any Person claiming by or through the
Trustee) as shall be reasonably requested by the Holder of the Exchangeable
Transferor Certificate to vest in such Holder all right, title and interest
which the Trust had in the Receivables and other Trust Property.
12-4
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Amendment.
(a) This Agreement (including any Supplement) may be amended from time to
time by the Servicer, the Transferor and the Trustee, without the consent of any
of the Certificateholders, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement,
or of modifying in any manner the rights of the Holders of Certificates;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any of the
Investor Certificateholders; provided, further, that such amendment shall not
reduce in any manner the amount of, or delay the timing of, distributions which
are required to be made on any Investor Certificate of such Series without the
consent of the related Investor Certificateholder, change the definition of or
the manner of calculating the interest of any Investor Certificateholder of such
Series without the consent of the related Investor Certificateholder or reduce
the percentage pursuant to subsection 13.1(b) required to consent to any such
amendment, in each case without the consent of all such Investor
Certificateholders. Additionally, this Agreement may be amended from time to
time by the Servicer, the Transferor and the Trustee, without the consent of any
of the Certificateholders, to add to or change any of the provisions of this
Agreement to provide that Bearer Certificates may be registrable as to
principal, to change or eliminate any restrictions on the payment of principal
of (or premium, if any) or any interest on Bearer Certificates to comply with
the Bearer Rules, to permit Bearer Certificates to be issued in exchange for
Registered Certificates (if then permitted by the Bearer Rules), to permit
Bearer Certificates to be issued in exchange for Bearer Certificates of other
authorized denominations or to permit the issuance of Certificates in
uncertificated form.
This Agreement and any supplement may also be amended from time to time by
the Servicer, the Transferor and the Trustee, without the consent of any of the
Certificateholders, for the purpose of changing the definition of Eligible
Account if (i) the Transferor delivers to the Trustee a certificate of an
authorized officer to the effect that, in the reasonable belief of the
Transferor, such amendment will not as of the date of such amendment adversely
affect in any material respect the interest of any of the Investor
Certificateholders, and (ii) such amendment will not result in a withdrawal or
reduction of the rating of any outstanding Series issued by the Trust.
(b) This Agreement and any Supplement may also be amended from time to time
by the Servicer, the Transferor and the Trustee with the consent of the Holders
of Investor Certificates evidencing Undivided Interests aggregating not less
than 66-2/3% of the Invested Amount of each and every Series adversely affected,
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
13-1
rights of the Investor Certificateholders of any Series then issued and
outstanding; provided, however, that no such amendment under this subsection
shall (i) reduce in any manner the amount of, or delay the timing of,
distributions which are required to be made on any Investor Certificate of such
Series without the consent of all of the related Investor Certificateholders;
(ii) change the definition of or the manner of calculating the interest of any
Investor Certificateholder of such Series without the consent of the related
Investor Certificateholder or (iii) reduce the aforesaid percentage required to
consent to any such amendment, in each case without the consent of all such
Investor Certificateholders.
(c) Notwithstanding anything in this Section 13.1 to the contrary, the
Supplement with respect to any Series may be amended on the items and in
accordance with the procedures provided in such Supplement.
(d) Promptly after the execution of any such amendment (other than an
amendment pursuant to paragraph (a)), the Trustee shall furnish notification of
the substance of such amendment to each Investor Certificateholder of each
Series adversely affected and ten Business Days prior to the proposed effective
date for such amendment the Servicer shall furnish notification of the substance
of such amendment to each Rating Agency providing a rating for such Series.
(e) It shall not be necessary to obtain the consent of Investor
Certificateholders under this Section 13.1 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 Investor Certificateholders shall
be subject to such reasonable requirements as the Trustee may prescribe.
(f) Any Supplement executed and delivered pursuant to Section 6.9, executed
in accordance with the provisions hereof, shall not be considered amendments to
this Agreement for the purpose of subsections 13.1(a) and (b).
(g) In connection with any amendment, the Trustee may request an Opinion of
Counsel from the Transferor or Servicer to the effect that the amendment
complies with all requirements of this Agreement. The Trustee may, but shall
not be obligated to, enter into any amendment which affects the Trustee's
rights, duties or immunities under this Agreement or otherwise.
Section 13.2 Protection of Right, Title and Interest to Trust.
(a) The Servicer shall cause this Agreement, all amendments hereto and/or
all financing statements and continuation statements and any other necessary
documents covering the Certificateholders and the Trustee's right, title and
interest to the Trust to be promptly recorded, registered and filed, and at all
times to be kept recorded, registered and filed, all in such manner and in such
places as may be required by law fully to preserve and protect the right, title
and interest of
13-2
the Certificateholders or the Trustee, as the case may be, hereunder to all
property comprising the Trust. The Servicer shall deliver to the Trustee file-
stamped copies of, or filing receipts for, any document recorded, registered or
filed as provided above, as soon as available following such recording,
registration or filing. The Transferor shall cooperate fully with the Servicer
in connection with the obligations set forth above and will execute any and all
documents reasonably required to fulfill the intent of this subsection 13.2(a).
(b) Within 30 days after the Transferor makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with paragraph (a) above materially
misleading within the meaning of Section 9-402(7) of the UCC as in effect in the
Relevant UCC State, the Transferor shall give the Trustee written notice of any
such change and shall file such financing statements or amendments as may be
necessary to continue the perfection of the Trust's security interest in the
Receivables and the proceeds thereof.
(c) Each of the Transferor and the Servicer will give the Trustee prompt
written notice of any relocation of any office from which it services
Receivables or keeps records concerning the Receivables or of its principal
executive office and whether, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement and shall file such financing statements or amendments as may be
necessary to continue the perfection of the Trust's security interest in the
Receivables and the proceeds thereof. Each of the Transferor and the Servicer
will at all times maintain each office from which it services Receivables and
its principal executive office within the United States of America.
(d) The Servicer will deliver to the Trustee on or before March 31 of each
year, beginning with March 31, 1997, an Opinion of Counsel, substantially in the
form of Exhibit E-1.
Section 13.3 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Investor Certificateholder shall not
operate to terminate this Agreement or the Trust, nor shall such death or
incapacity entitle such Certificateholder's legal representatives or heirs to
claim an accounting or to take any action or commence any proceeding in any
court for a partition or winding up of the Trust, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any of them.
(b) No Investor Certificateholder shall have any right to vote (except with
respect to the Investor Certificateholders as provided in Section 13.1 hereof)
or in any manner otherwise control the operation and management of the Trust, or
the obligations of the parties hereto, nor shall anything herein set forth, or
contained in
13-3
the terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as members of an association; nor shall any
Investor Certificateholder be under any liability to any third person by reason
of any action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) No Certificateholder shall have any right by virtue of any provisions
of this Agreement to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Agreement, unless such
Certificateholder previously shall have given written notice to the Trustee, and
unless the Holders of Certificates evidencing Undivided Interests aggregating
more than 50% of the Invested Amount of any Series which may be adversely
affected but for the institution of such suit, action or proceeding, shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notices request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Certificateholders shall have the right in any manner whatever by
virtue or by availing itself or themselves of any provisions of this Agreement
to affect, disturb or prejudice the rights of the Certificateholders of any
other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Certificateholder, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 13.3, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 13.4 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 13.5 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at, sent by facsimile to, sent by courier at or mailed by registered
mail, return receipt requested, to (a) in the case of the Transferor to 500
Landmark Towers, 000 Xx. Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000-0000,
Attention: Chief Financial Officer, with a copy to the Servicer as provided
below, (b) in the case of the Servicer, 1100 Landmark Towers, 000 Xx. Xxxxx
Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000-0000, Attention: Chief Financial Officer,
(c) in the case of the Trustee, to the Corporate Trust Office, (d) in the case
of the Enhancement Provider for a particular Series, the address, if any,
specified in the Supplement relating to such Series and (e) in the case of the
Rating Agency for a particular Series, the address, if any, specified in the
13-4
Supplement relating to such Series; or, as to each party, at such other address
as shall be designated by such party in a written notice to each other party.
Unless otherwise provided with respect to any Series in the related Supplement
any notice required or permitted to be mailed to a Certificateholder shall be
given by first class mail, postage prepaid, at the address of such
Certificateholder as shown in the Certificate Register, or with respect to any
notice required or permitted to be made to the Holders of Bearer Certificates,
by publication in the manner provided in the related Supplement. If and so long
as any Series or Class is listed on the Luxembourg Stock Exchange and such
Exchange shall so require, any Notice to Investor Certificateholders shall be
published in an authorized newspaper of general circulation in Luxembourg within
the time period prescribed in this Agreement. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
Section 13.6 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or rights of the Certificateholders thereof.
Section 13.7 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 8.2, this Agreement may not be
assigned by the Servicer without the prior consent of Holders of Investor
Certificates evidencing Undivided Interests aggregating not less than 66-2/3% of
the Invested Amount of each Series on a Series by Series basis. Upon such
assignment, the Trustee shall provide notice to Xxxxx'x and Standard and Poor's
in a prompt manner.
Section 13.8 Certificates Non-Assessable and Fully Paid. Except to the
extent otherwise expressly provided in Section 7.4 with respect to the
Transferor, it in the intention of the parties to this Agreement that the
Investor Certificateholders shall not be personally liable for obligations of
the Trust, that the Undivided Interests represented by the Certificates shall be
nonassessable for any losses or expenses of the Trust or for any reason
whatsoever, and that Certificates upon authentication thereof by the Trustee
pursuant to Sections 2.1 and 6.2 are and shall be deemed fully paid.
Section 13.9 Further Assurances. The Transferor and the Servicer agree to
do and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the Trustee more fully
to effect the purposes of this Agreement, including, without limitation, the
execution of any financing statements or continuation statements relating to the
Receivables and the
13-5
other Trust Property for filing under the provisions of the UCC of any
applicable jurisdiction.
Section 13.10 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Trustee, any Enhancement Provider or
the Investor Certificateholders, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
Section 13.11 Counterparts. This Agreement may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
Section 13.12 Third-Party Beneficiaries. This Agreement will inure to the
benefit of and be binding upon the parties hereto, the Certificateholders and,
to the extent provided in the related Supplement, to the Enhancement Provider
named therein, and their respective successors and permitted assigns. Except as
otherwise provided in this Article XIII, no other Person will have any right or
obligation hereunder.
Section 13.13 Actions by Certificateholders.
(a) Wherever in this Agreement a provision is made that an action may be
taken or a notice, demand or instruction given by Investor Certificateholders,
such action, notice or instruction may be taken or given by any Investor
Certificateholder, unless such provision requires a specific percentage of
Investor Certificateholders.
(b) Any request, demand, authorization, direction, notice, consent, waiver
or other act by a Certificateholder shall bind such Certificateholder and every
subsequent holder of such Certificate issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done
or omitted to be done by the Trustee or the Servicer in reliance thereon,
whether or not notation of such action is made upon such Certificate.
(c) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement or any Supplement to be given or
taken by Certificateholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Certificateholders in
person or by agent duly appointed in writing; and except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, when required, to the Transferor
or the Servicer.
13-6
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Agreement or any Supplement
and conclusive in favor of the Trustee, the Transferor and the Servicer, if made
in the manner provided in this Section.
(d) The fact and date of the execution by any Certificateholder of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
Section 13.14 Rule 144A Information. For so long as any of the Investor
Certificates of any Series or any Class are "restricted securities" within the
meaning of Rule 144(a)(3) under the Securities Act, each of the Transferor, the
Servicer, the Trustee and the Enhancement Provider for such Series agree to
cooperate with each other to provide to any Investor Certificateholders of such
Series or Class and to any prospective purchaser of Certificates designated by
such an Investor Certificateholder upon the request of such Investor
Certificateholder or prospective purchaser, any information required to be
provided to such holder or prospective purchaser to satisfy the condition set
forth in Rule 144A(d)(4) under the Securities Act.
Section 13.15 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 13.16 Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
13-7
IN WITNESS WHEREOF, the Transferor, the Servicer and the Trustee have
caused this Agreement to be duly executed by their respective officers as of the
day and year first above written.
GREEN TREE FLOORPLAN
FUNDING CORP., Transferor
By:___________________________
Name:
Title:
GREEN TREE FINANCIAL
CORPORATION, Servicer
By:___________________________
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, Trustee
By:___________________________
Name:
Title:
EXHIBIT A
---------
FORM OF EXCHANGEABLE TRANSFEROR CERTIFICATE
-------------------------------------------
Xx. 0 Xxx Xxxx
XXXXX XXXX XXXXXXXXX RECEIVABLES MASTER TRUST
FLOORPLAN RECEIVABLE TRUST CERTIFICATE
THIS CERTIFICATE WAS ISSUED PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY BE SOLD ONLY PURSUANT TO
A REGISTRATION STATEMENT EFFECTIVE UNDER THE ACT OR AN EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE ACT. IN ADDITION, THE TRANSFER OF THIS
CERTIFICATE IS SUBJECT TO RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. A COPY OF THE POOLING AND SERVICING AGREEMENT
WILL BE FURNISHED TO THE HOLDER OF THIS CERTIFICATE BY THE TRUSTEE UPON WRITTEN
REQUEST.
This Certificate represents an Undivided Interest in
----------------------------------------------------
the Green Tree Floorplan Receivables Master Trust
-------------------------------------------------
Evidencing an undivided interest in a trust, the corpus of which consists
primarily receivables generated from time to time in the ordinary course of
business from a portfolio of revolving financing arrangements (the "Accounts")
of Green Tree Financial Corporation ("Green Tree" or the "Servicer") and other
assets and interests constituting the Trust under the Pooling and Servicing
Agreement described below.
(Not an interest in or a recourse obligation of
Green Tree Financal Corporation, Green Tree Floorplan Funding Corp.
or any Affiliate of either of them.)
This certifies that __________________ ("_______", the "Holder" or the
"Transferor," as the context requires) is the registered owner of a fractional
undivided interest in the Green Tree Floorplan Receivables Master Trust (the
"Trust") issued pursuant to the Pooling and Servicing Agreement, dated as of
December 1, 1995 (the "Pooling and Servicing Agreement"); such term to include
any amendment or Supplement thereto) among Green Tree Floorplan Funding Corp.,
as Transferor, Green Tree, as Servicer, and Norwest Bank Minnesota, National
Association, as Trustee (the "Trustee"), as supplemented by each supplement
thereto existing from time to time (the "Agreement"). The corpus of the Trust
consists of all of the Transferor's right, title and interest in, to and under
the Trust Property (as defined in the Agreement).
A-1
Although a summary of certain provisions of the Pooling and Servicing
Agreement is set forth below, this Certificate does not purport to summarize the
Pooling and Servicing Agreement and reference is made to the Pooling and
Servicing Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and obligations of the Trustee. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to them in the Pooling
and Servicing Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement, as amended from time to time, the Holder
by virtue of the acceptance hereof assents and by which the Holder is bound.
This Certificate has not been registered or qualified under the Securities
Act of 1933, as amended, or any state securities law. No sale, transfer or
other disposition of this Certificate shall be permitted other than in
accordance with the provisions of Section 6.3, 6.9 or 7.2 of the Pooling and
Servicing Agreement.
This Certificate is the Exchangeable Transferor Certificate (the
"Certificate"), which represents an undivided interest in the Trust, including
the right to receive the Collections and other amounts at the times and in the
amounts specified in the Pooling and Servicing Agreement to be paid to the
Holder of the Exchangeable Transferor Certificate. The aggregate interest
represented by this Certificate at any time in the Principal Receivables in the
Trust shall not exceed the Transferor Interest at such time. In addition to
this Certificate, Series of Investor Certificates will be issued to investors
pursuant to the Pooling and Servicing Agreement, each of which will represent an
Undivided Interest in the Trust. This Certificate shall not represent any
interest in any Enhancement, except to the extent provided in the Pooling and
Servicing Agreement. The Transferor Interest on any date of determination will
be an amount equal to the aggregate amount of Principal Receivables at the end
of the day immediately prior to such date of determination plus amounts on
deposit in the Excess Funding Account (but not including any investment earnings
thereon) minus the Aggregate Invested Amount at the end of such day.
This Certificate does not represent a recourse obligation of, or any
interest in, the Transferor or the Servicer. This Certificate is limited in
right of payment to certain Collections respecting the Receivables, all as more
specifically set forth hereinabove and in the Pooling and Servicing Agreement.
Upon the termination of the Trust pursuant to Section 12.1 of the Pooling
and Servicing Agreement, the Trustee shall assign and convey to the Holder of
the Certificate (without recourse, representation or warranty) all right, title
and interest of the Trust in the Receivables, whether then existing or
thereafter created, and all proceeds relating thereto. The Trustee shall
execute and deliver such instruments of transfer and assignment, in each case
without recourse, as shall be reasonably
A-2
requested by the Holder of the
Certificate to vest in such Holder all right, title and interest which the
Trustee had in the Receivables.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement, or be valid
for any purpose.
IN WITNESS WHEREOF, the Transferor has caused this Certificate to be duly
executed.
GREEN TREE FLOORPLAN FUNDING CORP.
By:
----------------------------------------
Name:
Title:
Date:
CERTIFICATE OF AUTHENTICATION
This is the Exchangeable Transferor Certificate referred to in the within-
mentioned Pooling and Servicing Agreement.
-------------------------------------------
Authenticating Agent
By:
----------------------------------------
Name:
Title:
A-5
EXHIBIT B
---------
FORM OF DAILY REPORT
--------------------
GREEN TREE FLOORPLAN FUNDING CORP.
_________________________
GREEN TREE FLOORPLAN RECEIVABLES MASTER TRUST
_________________________
The undersigned, a duly authorized representative of Green Tree Financial
Corporation (the "Servicer"), as Servicer pursuant to the Pooling and Servicing
Agreement dated as of December 1, 1995 (the "Pooling and Servicing Agreement")
by and among Green Tree Floorplan Funding Corp. (the "Transferor"), the Servicer
and Norwest Bank Minnesota, National Association, as Trustee, does hereby
certify as follows:
B-1
EXHIBIT C
---------
--------------------------------------------------------------------------------------------------------------------
Green Tree Floorplan Green Tree
Funding Corp. Floorplan Receivables Master Trust Monthly Report
Certificateholder's Statement Series 1995-1 -95
--------------------------------------------------------------------------------------------------------------------
Section 5.2 Class A Class B Class C Class D Total
(i) Certificate Amount
(ii) Certificate Principal Distributed
(iii) Certificate Interest Distributed
Local Distribution per $1.000 Certificates
Certificate Principal Distributed per $1,000
Certificate Interest Distributed per $1,000
(iv) Principal Collections
(v) Interest Collections
Total Collections
(vi) Aggregate Amount of Principal Receivables
Invested Amount
Floating Allocation Percentage
(vii) Receivable Delinquencies
Current
30 Days to 99 Days
60 Days to 89 Days
90 Day and Over
Total Receivables
(viii) Aggregate Investor Default Amount
(ix) Charge-Offs
Class A
Class B
Class C
Class D
Total Charge-Offs
(x) Servicing Fee
Class A
Class B
Class C
Total Charge-Offs
(xi) Reallocated Principal Collections
Class A
Class B
Class C
(xii) Excess Funding Account Balance
Average Portfolio Yield
C-1
EXHIBIT D
---------
FORM OF ANNUAL SERVICER'S CERTIFICATE
-------------------------------------
GREEN TREE FLOORPLAN FUNDING CORP.
--------------------------
GREEN TREE FLOORPLAN RECEIVABLES MASTER TRUST
--------------------------
The undersigned, a duly authorized representative of Green Tree Financial
Corporation ("Green Tree"), as Servicer pursuant to the Pooling and Servicing
Agreement dated as of December 1, 1995 (the "Pooling and Servicing Agreement")
by and among Green Tree Floorplan Funding Corp. (the "Transferor"), Green Tree,
as Servicer and Norwest Bank Minnesota, National Association, as trustee (the
"Trustee") does hereby certify that:
1. Green Tree is Servicer under the Pooling and Servicing Agreement.
2. The undersigned is duly authorized pursuant to the Pooling and
Servicing Agreement to execute and deliver this Certificate to the Trustee.
3. This Certificate is delivered pursuant to Section 3.5 of the
Pooling and Servicing Agreement.
4. A review of the activities of the Servicer during (the period
from the Closing Date until) (the twelve fiscal month period ended)
__________, 19__ was conducted under our supervision.
5. Based on such review, the Servicer has, to the best of our
knowledge, fully performed all its obligations under the Pooling and
Servicing Agreement throughout such period and no default in the
performance of such obligations has occurred or is continuing except as set
forth in paragraph 6 below.
6. The following is a description of each default in the performance
of the Servicer's obligations under the provisions of the Pooling and
Servicing Agreement, including any Supplement, known to us to have been
made during such period which sets forth in detail (i) the nature of each
such default, (ii) the action taken by the Servicer, if any, to remedy each
such default and (iii) the current status of each such default:
[If applicable, insert "None."]
D-1
IN WITNESS WHEREOF, the undersigned has duly executed this certificate this
___ day of __________, ____.
GREEN TREE FINANCIAL CORPORATION, as
Servicer
___________________________________
Name:
Title:
D-2
EXHIBIT E-1
-----------
FORM OF ANNUAL OPINION OF COUNSEL
---------------------------------
The opinion set forth below, which is to be delivered pursuant to
subsection 13.2(d)(ii) of the Pooling and Servicing Agreement, may be subject to
certain qualifications, assumptions, limitations and exceptions taken or made in
the opinion of counsel delivered on the Initial Closing Date with respect to
similar matters.
No filing or other action, other than such filing or action described in
such opinion, is necessary from the date of such opinion through __________ of
the following year to continue the perfected status of the interest of the Trust
in the collateral described in the financing statements referred to in such
opinion.
E-1-1
EXHIBIT E-2
-----------
FORM OF OPINION OF COUNSEL
--------------------------
Provisions to be Included in
Opinion of Counsel Delivered Pursuant
to Section 13.1(g)
(a) The Amendment to the [Pooling and Servicing Agreement]
[Supplement], attached hereto as Schedule 1 (the "Amendment"), has been duly
authorized, executed and delivered by the Seller and constitutes the legal,
valid and binding agreement of the Seller, enforceable in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally from time to time in effect. The enforceability of the Seller's
obligations is also subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(b) The Amendment has been entered into in accordance with the terms
and provisions of Section 13.1 of the Pooling and Servicing Agreement.
(c) The Amendment will not adversely affect in any material respect
the interests of the Investor Certificateholders. [Include this clause (iii)
only in the case of amendments effected pursuant to Section 13.01(a) of the
Pooling and Servicing Agreement.]
E-2-1
EXHIBIT E-3
-----------
FORM OF OPINION OF COUNSEL
--------------------------
Provisions to be Included in
Opinion of Counsel Delivered Pursuant
to Sections 2.6 and 13.2(d)*
The opinions set forth below may be subject to all the qualifications,
assumptions, limitations and exceptions taken or made in the opinion of counsel
to Green Tree Floorplan Funding Corp. (the "Seller") delivered on any Closing
Date. Capitalized terms used but not defined herein are used as defined in the
Pooling and Servicing Agreement, dated as of December 1, 1995 (as amended and
supplemented, the "Agreement"), among the Seller, as seller, Green Tree
Financial Corporation, as servicer, and Norwest Bank Minnesota, National
Association, as trustee.
[(a) The Assignment has been duly authorized, executed and delivered
by the Seller, and constitutes the valid and legally binding obligation of the
Seller, enforceable against the Seller in accordance with its terms.]
(b) Assuming the Receivables [in the Additional Accounts] are created
under, and are evidenced solely by, Wholesale Financing Agreements and Asset-
Based Financing Agreements, such Receivables will constitute "chattel paper,"
"accounts" or "general intangibles" as defined under Section 9-105 of the UCC.
We note that the Seller has given us an Officer's Certificate to the effect that
the Receivables are created under Wholesale Financing Agreements and Asset-Based
Financing Agreements.
(c) If the transfer of the Receivables [in the Additional Accounts]
and all [of the related] Collateral Security to the Trust pursuant to the
Pooling and Servicing Agreement constitutes a true sale of such Receivables and
Collateral Security to the Trust:
(i) with respect to such Receivables and Collateral Security in
existence on the date hereof, such sale transfers all of the right, title
and interest of the Seller in and to such Receivables and Collateral
Security to the Trust, free and clear of any liens now existing or
hereafter created, but subject to the rights of the holder of the
Exchangeable Transferor Certificate and except for Liens permitted under
Section 2.5(a) of the Agreement;
____________
* Include bracketed language only in the case of additions of Accounts
effected pursuant to Section 2.6 of the Pooling and Servicing Agreement.
E-3-1
(ii) with respect to such Receivables and Collateral Security
which come into existence after the date hereof, upon the creation of such
Receivables and Collateral Security and the subsequent transfer of such
Receivables and Collateral Security to the Trust in accordance with the
Pooling and Servicing Agreement and receipt by the Seller of the
consideration therefor required pursuant to the Pooling and Servicing
Agreement, such sale will transfer all of the right, title and interest of
the Seller in and to such Receivables and Collateral Security to the Trust
free and clear of any liens but subject to the rights of the holder of the
Exchangeable Transferor Certificate and except for Liens permitted under
Section 2.5(a) of the Agreement;
and, in either case, no further action will thereafter be required under
Minnesota law to protect the Trust's ownership interest in the Receivables
against creditors of, or subsequent purchasers from, the Seller.
(d) If the transfer of the Receivables and Collateral Security to the
Trust pursuant to the Pooling and Servicing Agreement does not constitute a true
sale of the Receivables and the Collateral Security to the Trust, then the
Pooling and Servicing Agreement as amended and supplemented by the Assignment
creates a valid security interest in favor of the Trustee, for the benefit of
the Certificateholders, in the Seller's right, title and interest in and to the
Receivables and the Collateral Security and the proceeds thereof securing the
obligations of the Seller thereunder. Financing statements on Form UCC-1 having
been filed in the Offices of the Secretaries of State of the State of Minnesota
and [other applicable states] [and counties] and accordingly, such security
interest constitutes a perfected security interest in such Receivables and the
proceeds thereof subject to no prior liens (but subject to the Liens permitted
by Section 2.5(a) of the Agreement), enforceable as such against creditors of,
and subsequent purchasers from, the Seller, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws relating to or
affecting creditors' rights generally and to general equity principles.
E-3-2
EXHIBIT F
---------
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
-------------------------------------------------------
(As required by Section 2.6 of the Receivables
Purchase Agreement referred to below)
REASSIGNMENT NO. ____ OF RECEIVABLES, dated as
of __________, ____, by and between GREEN TREE
FLOORPLAN FUNDING CORP., as buyer (the "Buyer"),
and GREEN TREE FINANCIAL CORPORATION, as seller
(the "Seller"), pursuant to the Receivables Purchase
Agreement referred to below.
WITNESSETH
WHEREAS the Seller and the Buyer are parties to the Receivables Purchase
Agreement dated as of December 1, 1995 (as amended or supplemented, the
"Receivable Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, the Seller wishes
to remove all Receivables from certain Accounts, the Collateral Security thereof
and the related Floorplan Rights (the "Removed Accounts") and to cause the Buyer
to reconvey the Receivables of such Removed Accounts and such Collateral
Security and Floorplan Rights, whether now existing or hereafter created, and
all amounts currently held by the Buyer or thereafter received by the Trust in
respect of such Removed Accounts, from the Buyer to the Seller (as each such
term is defined in the Receivables Purchase Agreement); and
WHEREAS the Buyer is willing to accept such removal and to reconvey the
Receivables in the Removed Accounts, such Collateral Security and any related
amounts held or received by the Trust subject to the terms and conditions
hereof.
NOW, THEREFORE, the Seller and the Buyer hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used herein
shall have such defined meanings when used herein, unless otherwise defined
herein.
"Removal Date" shall mean, with respect to the Removed Accounts designated
hereby, __________________.
2. Notice of Removed Accounts. The Seller shall deliver to the Buyer,
the Trustee, any Enhancement Providers and the Rating Agencies a computer file
or microfiche or written list containing a true and complete list of the Removed
F-1
Accounts specifying for each such Account, as of the Removal Commencement Date,
its account number, the aggregate amount of Receivables outstanding in such
Accounts and the Designated Balance. Such list shall be marked as Schedule 1 to
this Reassignment and shall be incorporated into and made a part of this
Reassignment as of the Removal Date and shall amend Schedule 1 to the
Receivables Purchase Agreement.
3. Conveyance of Receivables and Accounts.
(a) The Buyer does hereby transfer, assign, set over and otherwise convey
to the Seller, without recourse, representation or warranty on and after the
Removal Date, all right, title and interest of the Trust in, to and under all
Receivables now existing at the close of business on the Removal Date and
thereafter created from time to time until the termination of the Trust in
Removed Accounts designated hereby, all Collateral Security thereof, the
related Floorplan Rights, all monies due or to become due and all amounts
received with respect thereto (Interest Receivables), all proceeds (as defined
in Section 9-306 of the UCC as in effect in the State of Minnesota and
Recoveries) thereof relating thereto.
(b) If requested by the Seller, in connection with such transfer, the Buyer
agrees to execute and deliver to the Seller, on or prior to the date of this
Reassignment, a termination statement with respect to the Receivables existing
at the close of business on the Removal Date and thereafter created from time to
time and Collateral Security thereof in the Removed Accounts reassigned hereby
(which may be a single termination statement with respect to all such
Receivables and Collateral Security) evidencing the release by the Trust of its
lien on the Receivables in the Removed Accounts and the Collateral Security, and
meeting the requirements of applicable state law, in such manner and such
jurisdictions as are necessary to remove such lien.
4. Acceptance by Buyer. The Buyer hereby acknowledges that, prior to or
simultaneously with the execution and delivery of this Reassignment, the Seller
delivered to the Buyer the computer file or such microfiche or written list
described in section 2(b) of this Reassignment.
5. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Buyer as of the date of this Reassignment and as
of the Removal Date:
(a) Legal, Valid and Binding Obligation. This Reassignment constitutes a
legal, valid and binding obligation of the Seller, enforceable against the
Seller in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights generally and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in equity);
F-2
(b) No Pay Out Event. The removal of the Accounts hereby removed shall
not, in the reasonable belief of the Seller, cause a Pay Out Event to occur or
cause the Pool Balance to be less than the Minimum Aggregate Principal
Receivables;
(c) Selection Procedures. No selection procedures believed by the Seller
to be adverse to the interests of the Beneficiaries were utilized in selecting
the Accounts to be removed; and
(d) True and Complete List. The list of Removed Accounts described in
Section 2(b) of this Assignment is, as of the Removal Commencement Date, true
and complete in all material respects.
provided, however, that in the event that the removal on such Removal Date
relates solely to Ineligible Accounts, the Seller shall be deemed to make only
the representations and warranties contained in paragraph 5(a) above.
6. Condition Precedent. In addition to the conditions precedent set
forth in Section 2.6 of the Receivables Purchase Agreement, the obligation of
the Buyer to execute and deliver this Reassignment is subject to the Seller
having delivered on or prior to the Removal Date to the Trustee and the Buyer,
any Agent, and any Enhancement Providers an Officers' Certificate certifying
that (i) as of the Removal Date, all requirements set forth in Section 2.6 of
the Agreement for removing such Accounts and reconveying the Receivables of such
Removed Accounts, the Collateral Security and the related Floorplan Rights,
whether existing at the close of business on the Removal Date or thereafter
created from time to time until the termination of the Trust, have been
satisfied, and (ii) each of the representations and warranties made by the
Seller in Section 5 hereof is true and correct as of the date of this
Reassignment and as of the Removal Date. The Buyer may conclusively rely on
such Officer's Certificate, shall have no duty to make inquiries with regard to
the matters set forth therein and shall incur no liability in so relying.
7. Ratification of Agreement. As supplemented by this Reassignment the
Receivables Purchase Agreement is in all respects ratified and confirmed and the
Receivables Purchase Agreement as so supplemented by this Reassignment shall be
read, taken and construed as one and the same instrument.
8. Counterparts. This Reassignment may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which shall constitute one and the same
instrument.
F-3
9. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF MINNESOTA, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the undersigned have caused this Reassignment to be
duly executed and delivered by their respective duly authorized officers on the
day and year first above written.
GREEN TREE FLOORPLAN
FUNDING CORP., Buyer
By:______________________
Name:____________________
Title:___________________
GREEN TREE FINANCIAL
CORPORATION, Seller
By:______________________
Name:____________________
Title:___________________
F-4
EXHIBIT G
---------
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
--------------------------------------------------------
(As required by Section 2.4
of the Receivables Purchase Agreement)
ASSIGNMENT No. _____ OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated as of
__________, ____, between Green Tree Floorplan Funding Corp., as buyer (the
"Buyer"), and Green Tree Financial Corporation, as seller (the "Seller"),
pursuant to the Receivables Purchase Agreement referred to below.
W I T N E S S E T H:
-------------------
WHEREAS the Seller and the Buyer are parties to a Receivables Purchase
Agreement dated as of December 1, 1995 (as amended or supplemented, the
"Receivables Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, the Seller wishes
to designate Additional Accounts to be included as Accounts and to convey the
Receivables and related Collateral Security of such Additional Accounts, whether
now existing or hereafter created, to the Buyer as part of the corpus of the
Trust (as each such term is defined in the Receivables Purchase Agreement); and
WHEREAS the Buyer is willing to accept such designation and conveyance
subject to the terms and conditions hereof;
NOW, THEREFORE, the Seller and the Buyer hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have the
meanings ascribed to them in the Receivables Purchase Agreement unless otherwise
defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts
designated hereby, __________, 19__.
2. Designation of Additional Accounts. The Seller hereby delivers
herewith a computer file or microfiche or written list containing a true and
complete list of all such Additional Accounts specifying for each such Account,
as of the Additional Cut-off Date, its account number, the aggregate amount of
Receivables outstanding in such Account and the aggregate amount of Principal
Receivables in such Account. Such file or list shall, as of the date of this
Assignment, supplement Schedule 1 to the Receivables Purchase Agreement.
G-1
3. Conveyance of Receivables.
(a) The Seller does hereby sell, transfer, assign, set over and otherwise
convey, without recourse (other than the Limited Guaranty of the Seller for the
benefit of the Class C Certificateholders and except as expressly provided in
the Receivables Purchase Agreement), to the Buyer, on the Addition Date all of
its right, title and interest in, to and under the Receivables in such
Additional Accounts, all Collateral Security and the related Floorplan Rights
with respect thereto, owned by the Seller and existing at the close of business
on the Additional Cut-off Date and thereafter created from time to time, all
monies due or to become due and all amounts received with respect thereto and
all proceeds (including "proceeds" as defined in Section 9-306 of the UCC as in
effect in the State of Minnesota and Recoveries) thereof. The foregoing sale,
transfer, assignment, set-over and conveyance does not constitute and is not
intended to result in the creation or an assumption by the Buyer of any
obligation of the Servicer, the Seller or any other Person in connection with
the Accounts, the Receivables or under any agreement or instrument relating
thereto, including any obligation under any Financing Agreement or Floorplan
Agreement, including any other obligation to any Dealer or Manufacturer.
(b) In connection with such sale, the Seller agrees to record and file, at
its own expense, a financing statement on form UCC-1 (and continuation
statements when applicable) with respect to the Receivables now existing and
hereafter created for the sale of chattel paper, accounts and general
intangibles (as defined in Section 9-105 or 9-106 of the UCC as in effect in any
state where the Seller's or the Servicer's chief executive offices or books and
records relating to the Receivables are located) meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect the sale and assignment of the Receivables and the Collateral
Security to the Buyer, and to deliver a file-stamped copy of such financing
statements or other evidence of such filing to the Buyer on or prior to the
Addition Date to the extent, if any, that the UCC-1 financing statements filed
pursuant to Section 2.1 of the Receivables Purchase Agreement are not sufficient
for such purpose. In addition, the Seller shall cause to be timely filed in the
appropriate filing office any UCC-1 financing statement and continuation
statement necessary to perfect any sale of Receivables to the Seller. The Buyer
shall be under no obligation whatsoever to file such financing statement, or a
continuation statement to such financing statement, or to make any other filing
under the UCC in connection with such sale. The parties hereto intend that the
sales of Receivables effected by this Agreement be sales.
(c) In connection with such sale, the Seller further agrees, at its own
expense, on or prior to the Addition Date, to indicate in its books and records,
which may include its computer files, that the Receivables created in connection
with the Additional Accounts designated hereby have been sold and the Collateral
Security assigned to the Buyer pursuant to this Assignment and sold to the Trust
pursuant to
G-2
the Pooling and Servicing Agreement for the benefit of the Certificateholders
and the other Beneficiaries.
4. Acceptance by Buyer. Subject to the satisfaction of the conditions
set forth in Section 6 of this Assignment, the Buyer hereby acknowledges its
acceptance of all right, title and interest to the property, now existing and
hereafter created, conveyed to the Buyer pursuant to Section 3(a) of this
Assignment. The Buyer further acknowledges that, prior to or simultaneously
with the execution and delivery of this Assignment, the Seller delivered to the
Buyer the computer file or microfiche or written list relating to the Additional
Accounts described in Section 2 of this Assignment.
5. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Buyer, on behalf of the Trust, as of the date of
this Assignment and as of the Addition Date that:
(a) Legal, Valid and Binding Obligation. This Assignment constitutes a
legal, valid and binding obligation of the Seller, enforceable against the
Seller in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting creditors' rights in
general and except as such enforceability may be limited by general principles
of equity (whether considered in a suit at law or in equity);
(b) Organization and Good Standing. The Seller is a corporation duly
organized and validly existing and in good standing under the law of the State
of Delaware and has, in all material respects, full corporate power, authority
and legal right to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted, and to
execute, deliver and perform its obligations under this Assignment;
(c) Due Qualification. The Seller is duly qualified to do business and,
where necessary, is in good standing as a foreign corporation (or is exempt from
such requirement) and has obtained all necessary licenses and approvals in each
jurisdiction in which the conduct of its business requires such qualification
except where the failure to so qualify or obtain licenses or approvals would not
have a material adverse effect on its ability to perform its obligations
hereunder;
(d) Eligible Accounts. Each Additional Account designated hereby is an
Eligible Account;
(e) Selection Procedures. No selection procedures believed by the Seller
to be adverse to the interests of the Beneficiaries were utilized in selecting
the Additional Accounts designated hereby;
G-3
(f) Insolvency. As of the Notice Date and the Addition Date, the Seller is
not insolvent nor, after giving effect to the conveyance set forth in Section 3
of this Assignment, will it have been made insolvent, nor is it aware of any
pending insolvency;
(g) Valid Transfer. This Assignment constitutes a valid sale, transfer and
assignment to the Buyer of all right, title and interest of the Seller in the
Receivables and the Collateral Security and the proceeds thereof and upon the
filing of the financing statements described in Section 3 of this Assignment
with the Secretary of State of the State of Minnesota and other applicable
states and counties and, in the case of the Receivables and the Collateral
Security hereafter created and the proceeds thereof, upon the creation thereof,
the Buyer shall have a first priority perfected ownership interest in such
property, except for Liens permitted under Section 2.6(a) of the Receivables
Purchase Agreement;
(h) Due Authorization. The execution and delivery of this Assignment and
the consummation of the transactions provided for or contemplated by this
Assignment have been duly authorized by the Seller by all necessary corporation
action on the part of the Seller;
(i) No Conflict. The execution and delivery of this Assignment, the
performance of the transactions contemplated by this Assignment and the
fulfillment of the terms hereof, will not conflict with, result in any breach of
any of the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a material default under, any indenture,
contract, agreement, mortgage, deed of trust, or other instrument to which the
Seller is a party or by which it or its properties are bound;
(j) No Violation. The execution and delivery of this Assignment by the
Seller, the performance of the transactions contemplated by this Assignment and
the fulfillment of the terms hereof will not conflict with or violate any
material Requirements of Law applicable to the Seller;
(k) No Proceedings. There are no proceedings or, to the best knowledge of
the Seller, investigations pending or threatened against the Seller before any
Governmental Authority (i) asserting the invalidity of this Assignment, (ii)
seeking to prevent the consummation of any of the transactions contemplated by
this Assignment, (iii) seeking any determination or ruling that, in the
reasonable judgment of the Seller, would materially and adversely affect the
performance by the Seller of its obligations under this Assignment, (iv) seeking
any determination or ruling that would materially and adversely affect the
validity or enforceability of this Assignment or (v) seeking to affect adversely
the income tax attributes of the Trust under the United States federal or any
State income, single business or franchise tax systems;
G-4
(l) Record of Accounts. As of the Addition Date, Schedule 1 to this
Assignment is an accurate and complete listing in all material respects of all
the Additional Accounts as of the Additional Cut-off Date and the information
contained therein with respect to the identity of such Accounts and the
Receivables existing thereunder is true and correct in all material respects as
of the Additional Cut-off Date;
(m) No Liens. Each Receivable and all Collateral Security existing on the
Addition Date has been conveyed to the Buyer free and clear of any Lien;
(n) All Consents Required. With respect to each Receivable and all
Collateral Security existing on the Addition Date, all consents, licenses,
approvals or authorizations of or registrations or declarations with any
Governmental Authority required to be obtained, effected or given by the Seller
in connection with the conveyance of such Receivable or Collateral Security to
the Buyer, the execution and delivery of this Assignment and the performance of
the transactions contemplated hereby have been duly obtained, effected or given
and are in full force and effect; and
(o) Eligible Receivables. On the Additional Cut-off Date each Receivable
conveyed to the Buyer as of such date is an Eligible Receivable or, if such
Receivable is not an Eligible Receivable, such Receivable is conveyed to the
Buyer in accordance with Section 2.8 of the Receivables Purchase Agreement.
6. Conditions Precedent. The acceptance of the Trustee set forth in
Section 4 of this Assignment is subject to the satisfaction, on or prior to the
Addition Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Seller in Section 5 of this Assignment shall be true and
correct as of the date of this Assignment and as of the Addition Date;
(b) Agreement. Each of the conditions set forth in Section 2.4(b) of the
Receivables Purchase Agreement applicable to the designation of the Additional
Accounts to be designated hereby shall have been satisfied; and
(c) Addition Information. The Seller shall have delivered to the Buyer
such information as was reasonably requested by the Buyer to satisfy itself as
to the accuracy of the representation and warranty set forth in Section 5(d) of
this Assignment.
7. Ratification of Agreement. As supplemented by this Assignment, the
Receivables Purchase Agreement is in all respects ratified and confirmed and the
Receivables Purchase Agreement as so supplemented by this Assignment shall be
read, taken and construed as one and the same instrument.
G-5
8. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties in separate counterparts), each of which
shall be an original but all of which together shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF MINNESOTA, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Seller and the Buyer have caused this Assignment to
be duly executed and delivered by their respective duly authorized officers as
of the day and the year first above written.
GREEN TREE FLOORPLAN
FUNDING CORP., Buyer
By:______________________
Name:____________________
Title:___________________
GREEN TREE FINANCIAL
CORPORATION, Seller
By:______________________
Name:____________________
Title:___________________
G-6
EXHIBIT H
---------
FORM OF AGREED UPON PROCEDURES
------------------------------
The Servicer and Trustee will engage a first of nationally recognized
independent public accountants (who may also render other services to the
Servicer or any of its subsidiaries) to perform certain agreed-upon procedures
substantially similar to the following:
1) The accountants will obtain the Master Trust schedules showing the daily
amount of eligible accounts receivable activity (hereinafter referred to as
the "Daily Report") for five days within the period and compare amounts set
forth on the Daily Report representing sales, returns, cash collections,
exchanges, allowances and bad debt charge offs with the corresponding
amounts set forth in the Servicer's accounts receivable reports and verify
the mathematical accuracy of the Daily Report.
2) For five days within the period, the accountants will compare the cash
collections appearing on the Servicer's accounts receivable reports to an
entry on the relevant Daily Report. The accountants will compare the cash
transfers indicated on the Daily Reports to entries on the relevant Master
Trust bank statements.
3) The accountants will compare the aggregate Dealer balances in the "current"
and "90 days and over" categories as reflected on the monthly Settlement
Statement to the corresponding amounts set ford in the Servicer's accounts
receivable aging reports as of three month-ends within the period.
4) For five weekly periods, the accountants will compare beginning and ending
total receivables balances on the Servicer's accounts receivable reports
with the corresponding balances on the corresponding Daily Report and will
verify the mathematical accuracy of the calculation of beginning and ending
principal receivable balances and beginning and ending imputed yield
receivable balances.
5) For five days within the period, the accountants will recompute the daily
allocation of Principal, Finance Charge and Imputed Yield collections to
each series based upon information appearing on the Daily Reports.
6) For monthly Settlement Statement during the period, the accountants will
compare the information appearing therein to the information appearing in
the corresponding Daily Reports.
7) The public accountants will inquire as to changes in the Discount Factor.
H-1
EXHIBIT I
---------
FORM OF RECONVEYANCE OF RECEIVABLES
-----------------------------------
RECONVEYANCE OF RECEIVABLES, dated as of __________, 19__ by and between
GREEN TREE FLOORPLAN FUNDING CORP., a corporation organized and existing under
the laws of the State of Delaware (the "Transferor"), and Norwest Bank
Minnesota, National Association, a national banking association (the "Trustee")
pursuant to the Pooling and Servicing Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Transferor and the Trustee are parties to the Pooling and
Servicing Agreement dated as of December 1, 1995 (hereinafter as such agreement
may have been, or may from time to time be, amended, supplemented or otherwise
modified, the "Pooling and Servicing Agreement") by and among the Transferor,
Green Tree Financial Corporation as Servicer, and the Trustee;
WHEREAS, pursuant to the Pooling and Servicing Agreement, the Transferor
wishes to cause the Trustee to reconvey all of the Receivables and proceeds
thereof, whether now existing or hereafter created, from the Trust to the
Transferor pursuant to the terms of Section 12.4 of the Pooling and Servicing
Agreement upon termination of the Trust pursuant to subsection 12.1(a) of the
Pooling and Servicing Agreement (as each such term is defined in the Pooling and
Servicing Agreement);
WHEREAS, the Trustee is willing to reconvey the Receivables subject to the
terms and conditions hereof;
NOW THEREFORE, the Transferor and the Trustee hereby agree as follows:
1. Defined Terms. All terms defined in the Pooling and Servicing
Agreement and used herein shall have such defined meanings when used herein,
unless otherwise defined herein.
"Reconveyance Date" shall mean __________, 19__.
2. Return of Lists of Receivables. The Trustee shall deliver to the
Transferor or the bailee of the Transferor, not later than three Business Days
after the Reconveyance Date, each and every computer file or microfiche list of
Receivables delivered to the Trustee pursuant to the terms of the Pooling and
Servicing Agreement.
3. Conveyance of Receivables. (a) The Trustee does hereby reconvey to
the Transferor, without recourse, representation or warranty, on and after the
Reconveyance Date, all right, title and interest of the Trust in and to each and
every
I-1
Receivable now existing and hereafter created, all monies due or to become
due with respect thereto (including all Imputed Yield Receivables), all proceeds
(as defined in Section 9-306 of the UCC as in effect in the Relevant UCC State)
of such Receivables, except for amounts, if any, held by the Trustee pursuant to
subsection 12.3(b) of the Pooling and Servicing Agreement.
(b) In connection with such transfer, the Trustee agrees to execute and
deliver to the Transferor on or prior to the date of this Reconveyance, such UCC
termination statements as the Transferor may reasonably request, evidencing the
release by the Trust of its lien on the Receivables.
4. Counterparts. This Reconveyance may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
5. Governing Law. THIS RECONVEYANCE SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF MINNESOTA, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS.
IN WITNESS WHEREOF, the undersigned have caused this Reconveyance of
Receivables to be duly executed and delivered by their respective duly
authorized officers on the day and year first above written.
GREEN TREE FLOORPLAN
FUNDING CORP.
By:______________________
Name:____________________
Title:___________________
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By:______________________
Name:____________________
Title:___________________
I-2
SCHEDULE 1
----------
LIST OF ACCOUNTS
----------------
SCHEDULE 2
----------
DESIGNATION OF COLLECTION ACCOUNT
---------------------------------
