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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 4, 1999
CONSECO FINANCE SECURITIZATIONS CORP.
as Seller of
Home Equity Loan Trust 1999-F
-----------------------------
(Exact name of registrant as specified in its charter)
Delaware 333-95118-01 41-1859796
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(State or other jurisdiction (Commission (IRS employer
of incorporation) file number) identification No.)
1100 Landmark Towers, 345 St. Peter Street, Saint Paul, Minnesota 55102-1639
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(Address of principal executive offices)
Registrant's telephone number, including area code: (651) 293-3400
Not Applicable
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(Former name or former address, if changed since last report)
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Item 1. Changes in Control of Registrant.
Not applicable.
Item 2. Acquisition or Disposition of Assets.
Not applicable.
Item 3. Bankruptcy or Receivership.
Not applicable.
Item 4. Changes in Registrant's Certifying Accountant.
Not applicable.
Item 5. Other Events.
On October 4, 1999, the Registrant sold approximately $640,124,580 of
Certificates for Home Equity Loans, Series 1999-F (the "Certificates"),
evidencing beneficial ownership interests in Home Equity Loan Trust
1999-F (the "Trust"). The Trust property consists primarily of a pool
comprised of closed-end home equity loans (the "Home Equity Loans"),
including the right to receive payments due on the Contracts on and
after the applicable Cut-off Date as described in the Pooling and
Servicing Agreement dated as of September 1, 1999.
Item 6. Resignations of Registrant's Directors.
Not applicable.
Item 7. Financial Statements and Exhibits.
(a) Financial statements of businesses acquired.
Not applicable.
(b) Pro forma financial information.
Not applicable.
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(c) Exhibits.
The following is filed herewith. The exhibit numbers
correspond with Item 601(b) of Regulation S-K.
Exhibit No. Description
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4.1 Pooling and Servicing Agreement among
Conseco Finance Securitizations Corp., as
Seller, Green Tree Financial Corporation, as
Servicer, and U.S. Bank Trust National
Association, as Trustee, dated as of
September 1, 1999 (without Exhibits L-1,
L-2, L-3 and L-4) creating a trust entitled
Home Equity Loan Trust 1999-F.
4.2 Transfer Agreement between Green Tree
Financial Corporation and Conseco Finance
Securitizations Corp.
5.1 Opinion of Dorsey & Whitney LLP with respect
to legality
8.1 Opinion and Consent of Dorsey & Whitney LLP
with respect to tax matters.
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Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
CONSECO FINANCE SECURITIZATIONS CORP.
By: /s/ Phyllis A. Knight
-------------------------------------
Phyllis A. Knight
Senior Vice President and Treasurer
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Certificates for Home Equity Loans
Series 1999-F
POOLING AND SERVICING AGREEMENT
among
CONSECO FINANCE SECURITIZATIONS CORP.
as Seller
and
GREEN TREE FINANCIAL CORPORATION
as Originator, Servicer and Guarantor
and
U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but solely as Trustee
of
HOME EQUITY LOAN TRUST 1999-F
Dated as of September 1, 1999
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS.................................................. 1-1
Section 1.01. General................................................. 1-1
Section 1.02. Specific Terms.......................................... 1-1
Section 1.03. Calculation of Interest on the Certificates and
Subsidiary REMIC Regular Interests......................1-37
ARTICLE II ESTABLISHMENT OF TRUST; TRANSFER OF LOANS.................... 2-1
Section 2.01. Closing................................................. 2-1
Section 2.02. Conditions to the Closing............................... 2-1
Section 2.03. Conveyance of the Subsequent Loans...................... 2-3
Section 2.04. Acceptance by Trustee................................... 2-5
Section 2.05. REMIC Provisions........................................ 2-5
Section 2.06. Company Option to Substitute for Prepaid Loans.......... 2-8
ARTICLE III REPRESENTATIONS AND WARRANTIES............................... 3-1
Section 3.01. Representations and Warranties Regarding
the Seller.............................................. 3-1
Section 3.02. Representations and Warranties Regarding
Each Loan............................................... 3-2
Section 3.03. Additional Representations and Warranties............... 3-5
Section 3.04. Representations and Warranties Regarding
the Loans in the Aggregate.............................. 3-6
Section 3.05. Representations and Warranties Regarding the Loan Files.3-10
Section 3.06. Repurchases of Loans for Breach of
Representations and Warranties..........................3-10
Section 3.07. No Repurchase Under Certain Circumstances...............3-12
ARTICLE IV PERFECTION OF TRANSFER AND PROTECTION
OF SECURITY INTERESTS........................................ 4-1
Section 4.01. Transfer of Loans....................................... 4-1
Section 4.02. Costs and Expenses...................................... 4-1
ARTICLE V SERVICING OF LOANS........................................... 5-1
Section 5.01. Responsibility for Loan Administration.................. 5-1
Section 5.02. Standard of Care........................................ 5-1
Section 5.03. Records................................................. 5-1
Section 5.04. Inspection.............................................. 5-1
Section 5.05. Certificate Account..................................... 5-2
Section 5.06. Enforcement............................................. 5-4
Section 5.07. Trustee to Cooperate.................................... 5-6
Section 5.08. Costs and Expenses...................................... 5-6
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Section 5.09. Maintenance of Insurance................................ 5-7
Section 5.10. Merger or Consolidation of Servicer..................... 5-7
ARTICLE VI REPORTS AND TAX MATTERS...................................... 6-1
Section 6.01. Monthly Reports......................................... 6-1
Section 6.02. Officer's Certificate................................... 6-1
Section 6.03. Other Data.............................................. 6-1
Section 6.04. Annual Report of Accountants............................ 6-1
Section 6.05. Statements to Certificateholders and the Class C
Certificateholders...................................... 6-1
Section 6.06. Payment Of Taxes........................................ 6-7
ARTICLE VII SERVICE TRANSFER............................................. 7-1
Section 7.01. Events of Termination................................... 7-1
Section 7.02. Transfer................................................ 7-1
Section 7.03. Trustee to Act; Appointment of Successor................ 7-2
Section 7.04. Notification to Certificateholders and Class C
Certificateholders...................................... 7-3
Section 7.05. Effect of Transfer...................................... 7-3
Section 7.06. Transfer of Certificate Account......................... 7-3
ARTICLE VIII PAYMENTS..................................................... 8-1
Section 8.01. Monthly Payments........................................ 8-1
Section 8.02. Advances................................................ 8-2
Section 8.03. Class B-2 Limited Guaranty.............................. 8-2
Section 8.04. Permitted Withdrawals from the Certificate
Account; Payments....................................... 8-3
Section 8.05. Reassignment of Repurchased and Replaced Loans.......... 8-9
Section 8.06. Class C Certificateholder's Purchase Option; Auction
Sale; Additional Principal Distribution Amount.......... 8-9
Section 8.07. Capitalized Interest Account............................8-12
Section 8.08. Pre-Funding Account.....................................8-13
Section 8.09. Distributions on the Subsidiary REMIC
Regular Interests.......................................8-14
ARTICLE IX THE CERTIFICATES AND THE CLASS C CERTIFICATES................ 9-1
Section 9.01. The Certificates and the Class C Certificates........... 9-1
Section 9.02. Registration of Transfer and Exchange of Certificates
and the Class C Certificates............................ 9-2
Section 9.03. No Charge; Disposition of Void Certificates or Class C
Certificates............................................ 9-5
Section 9.04. Mutilated, Destroyed, Lost or Stolen Certificates or
Class Certificates...................................... 9-6
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Section 9.05. Persons Deemed Owners................................... 9-6
Section 9.06. Access to List of Certificateholders' and Class C
Certificateholders' Names and Addresses................. 9-6
Section 9.07. Authenticating Agents................................... 9-7
ARTICLE X INDEMNITIES..................................................10-1
Section 10.01. Real Estate.............................................10-1
Section 10.02. Liabilities to Obligors.................................10-1
Section 10.03. Tax Indemnification.....................................10-1
Section 10.04. Servicer's Indemnities..................................10-1
Section 10.05. Operation of Indemnities................................10-2
Section 10.06. REMIC Tax Matters.......................................10-2
ARTICLE XI THE TRUSTEE..................................................11-1
Section 11.01. Duties of Trustee.......................................11-1
Section 11.02. Certain Matters Affecting the Trustee...................11-2
Section 11.03. Trustee Not Liable for Certificates, Class C
Certificates or Loans...................................11-3
Section 11.04. Trustee May Own Certificates............................11-3
Section 11.05. Rights of Certificateholders to Direct Trustee and to
Waive Events of Termination.............................11-3
Section 11.06. The Servicer to Pay Trustee's Fees and Expenses.........11-4
Section 11.07. Eligibility Requirements for Trustee....................11-4
Section 11.08. Resignation or Removal of Trustee.......................11-5
Section 11.09. Successor Trustee.......................................11-5
Section 11.10. Merger or Consolidation of Trustee......................11-6
Section 11.11. Tax Returns.............................................11-6
Section 11.12. Obligor Claims..........................................11-6
Section 11.13. Appointment of Co-Trustee or Separate Trustee...........11-7
Section 11.14. Trustee and U.S. Bancorp................................11-8
Section 11.15. Trustee Advances........................................11-8
ARTICLE XII MISCELLANEOUS................................................12-1
Section 12.01. Servicer Not to Resign; Delegation of Servicing Duties..12-1
Section 12.02. Green Tree Not to Engage in Certain Transactions with
Respect to the Trust....................................12-1
Section 12.03. Maintenance of Office or Agency.........................12-1
Section 12.04. Termination.............................................12-1
Section 12.05. Acts of Certificateholders and Class C
Certificateholders......................................12-4
Section 12.06. Calculations............................................12-5
Section 12.07. Assignment or Delegation by Company.....................12-5
Section 12.08. Amendment...............................................12-5
Section 12.09. Notices.................................................12-7
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Section 12.10. Merger and Integration..................................12-8
Section 12.11. Headings................................................12-8
Section 12.12. Governing Law...........................................12-8
Exhibit A-1 -- Form of Class A-[1][2][3] Certificate
Exhibit A-2 -- Form of Class A-3A Certificate
Exhibit A-3 -- Form of Class A-1 [A] [B] ARM Certificate
Exhibit A-4 -- Form of Class A-4 IO Certificate
Exhibit B -- Form of Class M Certificate
Exhibit C -- Form of Class B-[1] [2] Certificate
Exhibit D -- Form of Assignment
Exhibit E -- Form of Certificate of Officer
Exhibit F -- Form of Opinion of Counsel for the Originator
Exhibit G -- Form of Trustee's Acknowledgment
Exhibit H -- Form of Certificate of Servicing Officer
Exhibit I -- Form of Class C Certificate [Master] [Subsidiary]
Exhibit J-1 -- Form of Certificate Regarding Repurchased Loans
Exhibit J-2 -- Form of Certificate Regarding Repurchased Loans
Exhibit J-3 -- Form of Certificate Regarding Substitution for Prepaid Loans
Exhibit K -- Form of Representation Letter
Exhibit L-1 -- List of Initial Group I Fixed-Rate Loans
Exhibit L-2 -- List of Group II Fixed-Rate Loans
Exhibit L-3 -- List of Initial Group I Adjustable Rate Loans
Exhibit L-4 -- List of Initial Group II Adjustable Rate Loans
Exhibit M -- Form of Monthly Report
Exhibit N -- Form of Addition Notice
Exhibit O -- Form of Subsequent Transfer Instrument
Exhibit P -- Form of Officer's Certificate (Subsequent Transfer)
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AGREEMENT, dated as of September 1, 1999, among Conseco Finance
Securitizations Corp., a corporation organized and existing under the laws of
the State of Minnesota, as Seller (the "Seller"), Green Tree Financial
Corporation, a corporation organized and existing under the laws of the State of
Delaware, as originator of the home equity loans described herein (the
"Originator"), as Servicer (the "Servicer") and as Limited Guarantor of the
Class B-2 Certificates (the "Guarantor"), and U.S. Bank Trust National
Association, a national banking association organized and existing under the
laws of the United States, not in its individual capacity but solely as Trustee
(the "Trustee") of Home Equity Loan Trust 1999-F (the "Trust").
WHEREAS, in the regular course of its business, Green Tree Financial
Corporation purchases, originates and services home equity loans, which loans
provide for installment payments by or on behalf of the borrowers and grant
mortgages, deeds of trust or security deeds on certain real estate securing such
loans;
WHEREAS, the Seller, in the ordinary course of its business, acquires
pools of home equity loans and other receivables from Green Tree Financial
Corporation and arranges the securitization of those receivables;
WHEREAS, the Seller intends to sell pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in thirteen classes
(each, a "Class"), which in the aggregate will evidence the entire beneficial
ownership interest in the Trust Fund (as defined herein), consisting primarily
of the Loans (as defined herein);
WHEREAS, as provided herein, the Trustee will make an election to treat
the entire segregated pool of assets comprising the Subsidiary REMIC (as defined
herein) and subject to this Agreement as a real estate mortgage investment
conduit (a "REMIC") for federal income tax purposes and such segregated pool of
assets will be designated as the "Subsidiary REMIC";
WHEREAS, the Subsidiary REMIC Regular Interests (as defined herein)
will be "regular interests" in the Subsidiary REMIC and the Class C Subsidiary
Certificate (as defined herein) will be the sole class of "residual interests"
in the Subsidiary REMIC for purposes of the REMIC Provisions (as defined herein)
under the federal income tax law;
WHEREAS, a segregated pool of assets consisting of the Subsidiary REMIC
Regular Interests will be designated as the "Master REMIC," and the Trustee will
make a separate REMIC election with respect thereto;
WHEREAS, the Certificates will be "regular interests" in the Master
REMIC, and the Class C Master Certificate (as defined herein) will be the sole
class of "residual interests" in the Master REMIC for purposes of the REMIC
Provisions (as defined herein) under federal income tax law; and
WHEREAS, the Seller, the Originator, the Servicer, the Guarantor and
the Trustee wish to set forth the terms and conditions on which the Trustee, on
behalf of the Certificateholders and
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Class C Certificateholders (as defined herein) will acquire the Loans and the
Servicer will service the Loans;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto agree as provided herein:
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ARTICLE I
DEFINITIONS
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SECTION 1.01. General. For the purpose of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires, the terms
defined in this Article include the plural as well as the singular, the words
"herein," "hereof" and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular article, section or other
subdivision, and Section references refer to Sections of this Agreement.
SECTION 1.02. Specific Terms.
"Addition Notice" means, with respect to the transfer of Subsequent
Loans to the Trust pursuant to Section 2.03 of this Agreement, a notice,
substantially in the form of Exhibit N, which shall be given not later than five
Business Days prior to the related Subsequent Transfer Date, of the Seller's
designation of Subsequent Loans, as applicable, to be sold to the Trust and the
aggregate Cut-off Date Principal Balances of such Subsequent Loans.
"Additional Principal Distribution Amount" means, for any Payment Date,
the lesser of (i) the Amount Available remaining after payment of the amounts
described in clauses (1) through (16) of Section 8.04(b) and (ii) the amount
necessary to reduce the Class M Principal Balance and Class B Principal Balance
to zero.
"Adjustable Rate Loan" means each Group I Adjustable Rate Loan or Group
II Adjustable Rate Loan.
"Adjusted Weighted Average Loan Rate" means (a) for the first 20
Payment Dates, a rate equal to the weighted average of (x) the Weighted Average
Loan Rate, weighted on the basis of Subsidiary REMIC Regular Interests S-1 and
S-3 and (y) the Weighted Average Loan Rate less 6.65%, weighted on the basis of
Subsidiary REMIC Regular Interest S-2 and (b) for each Payment Date thereafter,
a rate equal to the Weighted Average Loan Rate.
"Advance" means, with respect to any Payment Date, the amounts, if any,
deposited by the Servicer or the Trustee, as applicable, in the Certificate
Account for such Payment Date pursuant to Section 8.02.
"Advance Payment" means any payment by an Obligor in advance of the Due
Period in which it would be due under such Loan and which payment is not a
Principal Prepayment.
"Affiliate" of any specified Person means any other Person controlling
or controlled by or under common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
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by contract or otherwise; and the terms "controlling" or "controlled" have
meanings correlative to the foregoing.
"Aggregate Certificate Principal Balance" means the sum of the Class
A-1A ARM, Class A-1B ARM, Class A-1, Class A-2, Class A-3, Class A-3A, Class
M-1, Class M-2, Class B-1 and Class B-2 Principal Balances.
"Aggregate Liquidation Loss Principal Amount" means, for any Payment
Date, the excess, if any, of (a) the Aggregate Certificate Principal Balance
(after giving effect to all distributions of principal on the Certificates on
such Payment Date) over (b) the sum of the Pool Scheduled Principal Balance plus
the Pre-Funded Amount.
"Agreement" means this Pooling and Servicing Agreement, as it may be
amended from time to time.
"Amount Available" means, for any Payment Date, an amount equal to:
(a) the sum of
(i) the amount on deposit in the Certificate Account
as of the close of business on the last day of the related Due
Period,
(ii) any Advances deposited in the Certificate
Account with respect to such Payment Date, and
(iii) any amount withdrawn from the Capitalized
Interest Account pursuant to Section 8.07 or the Pre-Funding
Account pursuant to Section 8.08 and deposited in the
Certificate Account, minus
(b) the sum of
(i) the Amount Held for Future Distribution,
(ii) amounts permitted to be withdrawn by the Trustee
from the Certificate Account pursuant to clauses (ii) through
(v) of Section 8.04(a), and
(iii) any amounts on deposit in the Certificate
Account as of the close of business on the last day of the
related Due Period representing collections in respect of
Principal Prepayments in Full (other than any amounts referred
to in Section 2.06(vii)) on Loans for which a substitution has
been made in accordance with Section 2.06.
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"Amount Held for Future Distribution" means, for any Payment Date, the
total of the amounts held in the Certificate Account in respect of the Loans on
the last day of the preceding Due Period on account of Advance Payments in
respect of such Due Period.
"Applicants" has the meaning assigned in Section 9.06.
"Authenticating Agent" means any authenticating agent appointed
pursuant to Section 9.07.
"Available Funds Pass-Through Rate" means, for any Payment Date, a rate
per annum equal to the weighted average of the Expense Adjusted Loan Rates on
the then outstanding Adjustable Rate Loans.
"Average Sixty-Day Delinquency Ratio Test" means, to be considered
"satisfied" for any Payment Date, that the arithmetic average of the Sixty-Day
Delinquency Ratios for such Payment Date and for the two immediately preceding
Payment Dates is less than or equal to 20% of the Senior Subordination
Percentage.
"Average Thirty-Day Delinquency Ratio Test" means, to be considered
"satisfied" for any Payment Date, that the arithmetic average of the Thirty-Day
Delinquency Ratios for such Payment Date and for the two immediately preceding
Payment Dates is less than or equal to 12%.
"Balloon Loan" means a Loan that provides for the payment of the
unamortized principal balance of such Loan in a single payment at the maturity
of such Loan that is greater than the preceding monthly payment.
"Book-Entry Certificate" means any Certificate registered in the name
of the Depository or its nominee, ownership of which is reflected on the books
of the Depository or on the books of a person maintaining an account with such
Depository (directly or as an indirect participant in accordance with the rules
of such Depository).
"Business Day" means any day other than (a) a Saturday or a Sunday, or
(b) another day on which banking institutions in the city in which the Person
taking action hereunder are authorized or obligated by law, executive order, or
governmental decree to be closed.
"Calculation Agent" means the Person who establishes LIBOR with respect
to each Interest Reset Period. The Calculation Agent shall be the Trustee unless
the Trustee is unable or unwilling so to act, in which case the Calculation
Agent shall be a financial institution appointed by the Seller.
"Capitalized Interest Account" means a separate trust account created
and maintained pursuant to Section 8.07 in the name of the Trust in an Eligible
Institution.
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"Certificate" means a Certificate for Home Equity Loans, Series 1999-F,
Class A-1A ARM, Class A-1B ARM, Class A-1, Class A-2, Class A-3, Class A-3A,
Class A-4 IO, Class M-1, Class M-2, Class B-1 or Class B-2, executed and
delivered by the Trustee substantially in the form of Exhibit A-1, A-2, A-3, B
or C, as applicable, but does not include the Class C Certificates.
"Certificate Account" means a separate trust account created and
maintained pursuant to Section 5.05 in the name of the Trust in an Eligible
Institution.
"Certificate Owner" means the person who is the beneficial owner of a
Book-Entry Certificate or, if Definitive Certificates have been issued,
Certificateholders.
"Certificate Register" means the register maintained pursuant to
Section 9.02.
"Certificate Registrar" or "Registrar" means the registrar appointed
pursuant to Section 9.02.
"Certificateholder" or "Holder" means the person in whose name a
Certificate or Class C Certificate is registered on the Certificate Register,
except that, solely for the purposes of giving any consent, waiver, request or
demand pursuant to this Agreement, any Certificate or Class C Certificate
registered in the name of the Originator or the Seller or any of their
Affiliates shall be deemed not to be outstanding and the Percentage Interest
evidenced thereby shall not be taken into account in determining whether the
requisite Percentage Interest necessary to effect any such consent, request,
waiver or demand has been obtained; provided, however, that, solely for the
purpose of determining whether the Trustee is entitled to rely upon any such
consent, waiver, request or demand, only Certificates or Class C Certificates
which the Trustee knows to be so owned shall be so disregarded.
"Class," "Class A," "Class M," "Class B," or "Class C" means pertaining
to Class A Certificates, Class M Certificates, Class B Certificates, and/or
Class C Certificates, as the case may be.
"Class A Certificates" means the Class A-1A ARM, Class A-1B ARM, Class
A-1, Class A-2, Class A-3, Class A-3A and Class A-4 IO Certificates,
collectively.
"Class A Cross-over Date" means the Payment Date on which the Class A
Principal Balance (after giving effect to the distributions of principal on the
Class A Certificates on such Payment Date) is reduced to zero.
"Class A Distribution Amount" means, for any Payment Date, the lesser
of (a) the Class A Formula Distribution Amount and (b) that portion of the
Amount Available eligible for distribution in respect of such amount in
accordance with the priorities set forth in Section
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8.04(b), provided that, after the Class A Cross-over Date, the Class A
Distribution Amount shall be zero.
"Class A Formula Distribution Amount" means, for any Payment Date, an
amount equal to the sum of (a) one month's interest (or, as to the first Payment
Date, interest from and including the Closing Date to but excluding October 15,
1999) at (1) the Class A-1A ARM Pass- Through Rate on the Class A-1A ARM
Principal Balance, (2) the Class A-1B ARM Pass- Through Rate on the Class A-1B
ARM Principal Balance, (3) the Class A-1 Pass-Through Rate on the Class A-1
Principal Balance, (4) the Class A-2 Pass-Through Rate on the Class A-2
Principal Balance, (5) the Class A-3 Pass-Through Rate on the Class A-3
Principal Balance, (6) the Class A-3A Pass-Through Rate on the Class A-3A
Principal Balance and (7) the Class A-4 IO Pass-Through Rate on the Class A-4 IO
Notional Principal Amount, in each case to be calculated immediately prior to
such Payment Date, (b) the aggregate of the Unpaid Class A Interest Shortfalls,
if any, with respect to each Class of Class A Certificates, and (c)(i) if there
is no Class A Principal Deficiency Amount for such Payment Date, the Class A
Formula Principal Distribution Amount, or (ii) if there is a Class A Principal
Deficiency Amount for such Payment Date, the amount determined in accordance
with Section 8.04(b)(6)(i); provided, however, that the aggregate of all amounts
distributed for all Payment Dates pursuant to clause (c) shall not exceed the
aggregate of the Original Class Principal Balances of the Class A Certificates.
"Class A Formula Interest Distribution Amount" means, as to each Class
of Class A Certificates and any Payment Date, the sum of (1) the amount
specified in clause (a)(1), (2), (3), (4), (5), (6) or (7), as appropriate, of
the definition of the term "Class A Formula Distribution Amount" and (2) the
Unpaid Class A Interest Shortfall, if any, with respect to such Class.
"Class A Formula Principal Distribution Amount" means, for any Payment
Date, the sum of the Group I ARM Formula Principal Distribution Amount, the
Group II ARM Formula Principal Distribution Amount, the Group II Fixed Formula
Principal Distribution Amount and the Senior Percentage of the Formula Principal
Distribution Amount.
"Class A Interest Shortfall" means, as to each Class of Class A
Certificates and any Payment Date, the amount, if any, by which the Class A
Formula Interest Distribution Amount for such Class exceeds the amount
distributed to Holders of such Class on such Payment Date pursuant to Section
8.04(b)(2).
"Class A Principal Balance" means, for any Payment Date, the sum of the
Class A-1A ARM Principal Balance, the Class A-1B ARM Principal Balance, the
Class A-1 Principal Balance, the Class A-2 Principal Balance, the Class A-3
Principal Balance and the Class A-3A Principal Balance.
"Class A Principal Deficiency Amount" means, for any Payment Date, the
excess, if any, of (a) the Class A Principal Balance for such Payment Date over
(b) the sum of the Pool
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Scheduled Principal Balance plus the Pre-Funded Amount for the immediately
preceding Payment Date.
"Class A-1 Certificate" means any one of the Class A-1 Certificates
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit A-1 and evidencing an
interest designated as a "regular interest" in the Master REMIC for purposes of
the REMIC Provisions.
"Class A-1 Cross-over Date" means the Payment Date on which the Class
A-1 Principal Balance (after giving effect to the distributions of principal on
the Class A-1 Certificates on such Payment Date) is reduced to zero.
"Class A-1 Distribution Amount" means, for any Payment Date, that
portion of the Class A Distribution Amount to be distributed to the Class A-1
Certificateholders pursuant to Section 8.04(b) on such Payment Date.
"Class A-1 Principal Balance" means, for any Payment Date, the Original
Class A-1 Principal Balance less all amounts previously distributed to Holders
of Class A-1 Certificates in respect of principal.
"Class A-1A ARM Available Funds Limitation Interest Amount" means, for
any Payment Date, an amount equal to the sum of (1) the excess, if any, of (a)
one month's interest (or, as to the first Payment Date, interest from and
including the Closing Date to but excluding October 15, 1999) at the Class A-1A
ARM Pass-Through Rate (determined without respect to any limitation imposed by
the Available Funds Pass-Through Rate) on the Class A-1A ARM Principal Balance
over (b) the amount specified in clause (a)(1) of the definition of the term
"Class A Formula Distribution Amount" (2) the amount of any Class A-1A ARM
Available Fund Limitation Interest Amount for the preceding Payment Date to the
extent not distributed on such preceding Payment Date and (3) interest accrued
on the amounts described in clauses (1) and (2) above during the accrual period
for the current Payment Date at the Class A-1A ARM Pass Through Rate for such
Payment Date.
"Class A-1A ARM Certificate" means any one of the Class A-1A ARM
Certificates executed and delivered by the Trustee and authenticated by the
Certificate Registrar substantially in the form set forth in Exhibit A-2 and
evidencing an interest designated as a "regular interest" in the Master REMIC
for purposes of the REMIC Provisions.
"Class A-1A ARM Distribution Amount" means, for any Payment Date, that
portion of the Class A Distribution Amount to be distributed to the Class A-1A
ARM Certificateholders pursuant to Section 8.04(b) on such Payment Date.
"Class A-1A ARM Pass-Through Margin" means for any Payment Date, 0.35%
per annum.
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"Class A-1A ARM Principal Balance" means, for any Payment Date, the
Original Class A-1A ARM Principal Balance less all amounts previously
distributed to Holders of Class A-1A ARM Certificates in respect of principal.
"Class A-1B ARM Available Funds Limitation Interest Amount" means, for
any Payment Date, an amount equal to the sum of (1) the excess, if any, of (a)
one month's interest (or, as to the first Payment Date, interest from and
including the Closing Date to but excluding October 15, 1999) at the Class A-1B
ARM Pass-Through Rate (determined without respect to any limitation imposed by
the Available Funds Pass-Through Rate) on the Class A-1B ARM Principal Balance
over (b) the amount specified in clause (a)(2) of the definition of the term
"Class A Formula Distribution Amount" (2) the amount of any Class A-1B ARM
Available Fund Limitation Interest Amount for the preceding Payment Date to the
extent not distributed on such preceding Payment Date and (3) interest accrued
on the amounts described in clauses (1) and (2) above during the accrual period
for the current Payment Date at the Class A-1B ARM Pass Through Rate for such
Payment Date.
"Class A-1B ARM Certificate" means any one of the Class A-1B ARM
Certificates executed and delivered by the Trustee and authenticated by the
Certificate Registrar substantially in the form set forth in Exhibit A-2 and
evidencing an interest designated as a "regular interest" in the Master REMIC
for purposes of the REMIC Provisions.
"Class A-1B ARM Distribution Amount" means, for any Payment Date, that
portion of the Class A Distribution Amount to be distributed to the Class A-1B
ARM Certificateholders pursuant to Section 8.04(b) on such Payment Date.
"Class A-1B ARM Pass-Through Margin" means for any Payment Date, 0.42%
per annum.
"Class A-1B ARM Principal Balance" means, for any Payment Date, the
Original Class A-1B ARM Principal Balance less all amounts previously
distributed to Holders of Class A-1B ARM Certificates in respect of principal.
"Class A-2 Certificate" means any one of the Class A-2 Certificates
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit A-1 and evidencing an
interest designated as a "regular interest" in the Master REMIC for purposes of
the REMIC Provisions.
"Class A-2 Cross-over Date" means the Payment Date on which the Class
A-2 Principal Balance (after giving effect to the distributions of principal on
the Class A-2 Certificates on such Payment Date) is reduced to zero.
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"Class A-2 Distribution Amount" means, for any Payment Date, that
portion of the Class A Distribution Amount to be distributed to the Class A-2
Certificateholders pursuant to Section 8.04(b) on such Payment Date.
"Class A-2 Principal Balance" means, for any Payment Date, the Original
Class A-2 Principal Balance less all amounts previously distributed to Holders
of Class A-2 Certificates in respect of principal.
"Class A-3 Certificate" means any one of the Class A-3 Certificates
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit A-1 and evidencing an
interest designated as a "regular interest" in the Master REMIC for purposes of
the REMIC Provisions.
"Class A-3 Cross-over Date" means the Payment Date on which the Class
A-3 Principal Balance (after giving effect to the distributions of principal on
the Class A-3 Certificates on such Payment Date) is reduced to zero.
"Class A-3 Distribution Amount" means, for any Payment Date, that
portion of the Class A Distribution Amount to be distributed to the Class A-3
Certificateholders pursuant to Section 8.04(b) on such Payment Date.
"Class A-3 Principal Balance" means, for any Payment Date, the Original
Class A-3 Principal Balance less all amounts previously distributed to Holders
of Class A-3 Certificates in respect of principal.
"Class A-3A Certificate" means any one of the Class A-3A Certificates
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit A-1 and evidencing an
interest designated as a "regular interest" in the Master REMIC for purposes of
the REMIC Provisions.
"Class A-3A Cross-over Date" means the Payment Date on which the Class
A-3A Principal Balance (after giving effect to the distributions of principal on
the Class A-3A Certificates on such Payment Date) is reduced to zero.
"Class A-3A Distribution Amount" means, for any Payment Date, that
portion of the Class A Distribution Amount to be distributed to the Class A-3A
Certificateholders pursuant to Section 8.04(b) on such Payment Date.
"Class A-3A Principal Balance" means, for any Payment Date, the
Original Class A-3A Principal Balance less all amounts previously distributed to
Holders of Class A-3A Certificates in respect of principal.
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"Class A-4 IO Certificate" means any one of the Class A-4 IO
Certificates executed and delivered by the Trustee and authenticated by the
Certificate Registrar substantially in the form set forth in Exhibit A-3 and
evidencing an interest designated as a "regular interest" in the Master REMIC
for purposes of the REMIC Provisions.
"Class A-4 IO Distribution Amount" means, for any Payment Date, that
portion of the Class A Distribution Amount to be distributed to the Class A-4 IO
Certificateholders pursuant to Section 8.04(b) on such Payment Date.
"Class A-4 IO Notional Principal Amount" means, for any Payment Date,
an amount equal to (a) for the first 20 Payment Dates, the lesser of (i)
$75,000,000 or (ii) the Class A Principal Balance for such Payment Date, and (b)
thereafter, zero.
"Class B Certificates" means the Class B-1 and Class B-2 Certificates,
collectively.
"Class B Cross-over Date" means the earlier of:
(a) the Class M-2 Cross-over Date, and
(b) the Payment Date occurring in October 2002.
"Class B Percentage" means 100% minus the Senior Percentage.
"Class B Principal Balance" means, for any Payment Date, the sum of the
Class B-1 Principal Balance and the Class B-2 Principal Balance.
"Class B Principal Balance Test" means, to be considered "satisfied"
for any Payment Date, that the fraction, expressed as a percentage, the
numerator of which is the sum of (i) the Class B Principal Balance for such
Payment Date plus (ii) the Over-Collateralization Amount for such Payment Date,
and the denominator of which is the Pool Scheduled Principal Balance plus the
Pre-Funded Amount for the immediately preceding Payment Date, is equal to or
greater than 17.6%.
"Class B Principal Distribution Test" means, for any Payment Date, each
of the Average Sixty-Day Delinquency Ratio Test, the Average Thirty-Day
Delinquency Ratio Test, the Class B Principal Balance Test, the Cumulative
Realized Losses Test and the Current Realized Losses Test.
"Class B-1 Adjusted Principal Balance" means, for any Payment Date, the
Class B-1 Principal Balance for that Payment Date minus the Class B-1
Liquidation Loss Principal Amount (if any) for the immediately preceding Payment
Date.
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"Class B-1 Certificate" means any one of the Class B-1 Certificates
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit C and evidencing an
interest designated as a "regular interest" in the Master REMIC for purposes of
the REMIC Provisions.
"Class B-1 Cross-over Date" means the Payment Date on which the Class
B-1 Principal Balance (after giving effect to the distributions of principal on
the Class B-1 Certificates on such Payment Date) is reduced to zero.
"Class B-1 Distribution Amount" means, for any Payment Date, the lesser
of (a) the Class B-1 Formula Distribution Amount and (b) that portion of the
Amount Available eligible for distribution in respect of such amount in
accordance with the priorities set forth in Section 8.04(b); provided that after
the Class B-1 Cross-over Date the Class B-1 Distribution Amount shall be zero.
"Class B-1 Formula Distribution Amount" means, for any Payment Date, an
amount equal to the sum of (a) one month's interest (or, as to the first Payment
Date, interest from and including the Closing Date to but excluding October 15,
1999) at the Class B-1 Pass-Through Rate on the Class B-1 Adjusted Principal
Balance for such Payment Date, (b) any Unpaid Class B-1 Interest Shortfall, (c)
if such Payment Date is on or prior to the Class B-1 Cross-over Date, the Class
B Percentage of the Formula Principal Distribution Amount and (d) any Class B-1
Formula Liquidation Loss Interest Distribution Amount; provided, however, that
on the Class M-2 Cross-over Date, the balance of any amounts that would have
been distributable on such date pursuant to clause (c) of the definition of the
term "Class M-2 Formula Distribution Amount" (assuming a sufficient Amount
Available) but for the operation of the second proviso in such definition shall
instead be included in clause (c) of this definition; and provided, further,
that the aggregate of all amounts distributed pursuant to clause (c) of this
definition shall not exceed the Original Class B-1 Principal Balance.
"Class B-1 Formula Interest Distribution Amount" means, for any Payment
Date, the sum of the amounts specified in clauses (a) and (b) of the definition
of the term "Class B-1 Formula Distribution Amount".
"Class B-1 Formula Liquidation Loss Interest Distribution Amount"
means, for any Payment Date, the sum of (a) the Class B-1 Liquidation Loss
Interest Amount, if any, and (b) the Unpaid Class B-1 Liquidation Loss Interest
Shortfall, if any.
"Class B-1 Interest Shortfall" means, for any Payment Date, the amount,
if any, by which (a) the Class B-1 Formula Interest Distribution Amount exceeds
(b) the amount distributed to Class B-1 Certificateholders on such Payment Date
pursuant to Section 8.04(b)(5).
"Class B-1 Liquidation Loss Interest Amount" means, for any Payment
Date, an amount equal to one month's interest (or, as to the first Payment Date,
interest from and including the
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Closing Date to but excluding October 15, 1999) at the Class B-1 Pass-Through
Rate on the Class B-1 Liquidation Loss Principal Amount (if any) for the
immediately preceding Payment Date.
"Class B-1 Liquidation Loss Interest Shortfall" means, for any Payment
Date, the amount, if any, by which (a) the Class B-1 Formula Liquidation Loss
Interest Distribution Amount exceeds (b) the amount distributed to Class B-1
Certificateholders on such Payment Date pursuant to Section 8.04(b)(12).
"Class B-1 Liquidation Loss Principal Amount" means, for any Payment
Date, the lesser of (a) the Class B-1 Principal Balance (after giving effect to
all distributions of principal on the Class B-1 Certificates on such Payment
Date) and (b) the excess, if any, of the Aggregate Liquidation Loss Principal
Amount over the Class B-2 Principal Balance (after giving effect to all
distributions of principal on the Class B-2 Certificates on such Payment Date).
"Class B-1 Principal Balance" means, for any Payment Date, the Original
Class B-1 Principal Balance less all amounts previously distributed to Holders
of Class B-1 Certificates in respect of principal.
"Class B-2 Certificate" means any one of the Class B-2 Certificates
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit C and evidencing an
interest designated as a "regular interest" in the Master REMIC for purposes of
the REMIC Provisions.
"Class B-2 Distribution Amount" means, for any Payment Date, the lesser
of (a) the Class B-2 Formula Distribution Amount and (b) that portion of the
Amount Available eligible for distribution in respect of such amount in
accordance with the priorities set forth in Section 8.04(b).
"Class B-2 Formula Distribution Amount" means, for any Payment Date, an
amount equal to the sum of (a) one month's interest (or, as to the first Payment
Date, interest from and including the Closing Date to but excluding October 15,
1999) at the Class B-2 Pass-Through Rate on the Class B-2 Principal Balance, (b)
any Unpaid Class B-2 Interest Shortfall, and (c) if such Payment Date is after
the Class B-1 Cross-over Date, the Class B Percentage of the Formula Principal
Distribution Amount; provided, however, that on the Class B-1 Cross-over Date,
the balance of any amounts that would have been distributable on such date
pursuant to clause (c) of the definition of the term "Class B-1 Formula
Distribution Amount" (assuming a sufficient Amount Available) but for the
operation of the second proviso in such definition shall instead be included in
clause (c) of this definition; and provided, further, that the aggregate of all
amounts distributed pursuant to clause (c) of this definition shall not exceed
the Original Class B-2 Principal Balance.
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"Class B-2 Formula Interest Distribution Amount" means, for any Payment
Date, the sum of the amounts specified in clauses (a) and (b) of the definition
of the term "Class B-2 Formula Distribution Amount".
"Class B-2 Guaranty Fee" means, for any Payment Date, the lesser of (a)
one-twelfth of the product of 3.00% and the sum of the Pool Scheduled Principal
Balance and the Pre-Funded Amount for the immediately preceding Payment Date
(or, in the case of the October 1999 Payment Date, the Cut-off Date), or (b)
that portion of the Amount Available eligible for distribution in respect of
such amount in accordance with the priorities set forth in Section 8.04(b).
"Class B-2 Guaranty Payment" means, for any Payment Date, the amount,
if any, by which (a) the sum of the Class B-2 Formula Distribution Amount and
the Class B-2 Liquidation Loss Principal Amount exceeds (b) the Class B-2
Distribution Amount; provided that the Class B-2 Guaranty Payment shall not
exceed the amount necessary to reduce the Class B-2 Principal Balance to zero.
"Class B-2 Interest Shortfall" means, for any Payment Date, the amount,
if any, by which (a) the Class B-2 Formula Interest Distribution Amount exceeds
(b) the sum of the amounts distributed to Class B-2 Certificateholders on such
Payment Date pursuant to clauses (i) and (ii) of Section 8.04(b)(13) and any
Class B-2 Guaranty Payment.
"Class B-2 Limited Guaranty" means the limited guaranty of the
Guarantor provided pursuant to Section 8.03.
"Class B-2 Liquidation Loss Principal Amount" means, for any Payment
Date, the lesser of (a) the Class B-2 Principal Balance (after giving effect to
all distributions of principal on the Class B-2 Certificates on such Payment
Date) and (b) the Aggregate Liquidation Loss Principal Amount.
"Class B-2 Principal Balance" means, for any Payment Date, the Original
Class B-2 Principal Balance less all amounts previously distributed to Holders
of Class B-2 Certificates in respect of principal.
"Class C Certificateholder" means the person in whose name a Class C
Certificate is registered on the Certificate Register.
"Class C Certificates" means any one of the Class C Master Certificates
or Class C Subsidiary Certificates.
"Class C Master Certificate" means a Certificate for Home Equity Loans,
Series 1999-F, bearing the designation Class C Master, executed and delivered by
the Trustee substantially in
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the form of Exhibit I, and evidencing an interest designated as a "residual
interest" in the Master REMIC for purposes of the REMIC Provisions.
"Class C Master Distribution Amount" means, for any Payment Date, the
amount, if any, distributable in respect of the Class C Master Certificates
pursuant to Section 8.04(b).
"Class C Subsidiary Certificate" means a Certificate for Home Equity
Loans, Series 1999-F, bearing the designation Class C Subsidiary, executed and
delivered by the Trustee substantially in the form attached hereto as Exhibit I,
and evidencing an interest designated as a "residual interest" in the Subsidiary
REMIC for purposes of the REMIC Provisions.
"Class C Subsidiary Distribution Amount" means, for any Payment Date,
the amounts, if any, distributable in respect of the Class C Subsidiary
Certificate pursuant to Section 8.04(b).
"Class M Certificates" means the Class M-1 and Class M-2 Certificates,
collectively.
"Class M Principal Balance" means, for any Payment Date, the sum of the
Class M-1 Principal Balance and the Class M-2 Principal Balance.
"Class M-1 Adjusted Principal Balance" means, for any Payment Date, the
Class M-1 Principal Balance for that Payment Date minus the Class M-1
Liquidation Loss Principal Amount (if any) for the immediately preceding Payment
Date.
"Class M-1 Certificate" means any one of the Class M-1 Certificates
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit B and evidencing an
interest designated as a "regular interest" in the Master REMIC for purposes of
the REMIC Provisions.
"Class M-1 Cross-over Date" means the Payment Date on which the Class
M-1 Principal Balance (after giving effect to the distributions of principal on
the Class M-1 Certificates on such Payment Date) is reduced to zero.
"Class M-1 Distribution Amount" means, for any Payment Date, the lesser
of (a) the Class M-1 Formula Distribution Amount and (b) that portion of the
Amount Available eligible for distribution in respect of such amount in
accordance with the priorities set forth in Section 8.04(b); provided that after
the Class M-1 Cross-over Date the Class M-1 Distribution Amount shall be zero.
"Class M-1 Formula Distribution Amount" means, for any Payment Date, an
amount equal to the sum of (a) one month's interest (or, as to the first Payment
Date, interest from and including the Closing Date to but excluding October 15,
1999) at the Class M-1 Pass-Through Rate on the Class M-1 Adjusted Principal
Balance for such Payment Date, (b) any Unpaid Class M-1 Interest Shortfall, (c)
if such Payment Date is after the later of the Class A Cross-over Date,
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but on or prior to the Class M-1 Cross-over Date, the Senior Percentage of the
Formula Principal Distribution Amount and (d) any Class M-1 Formula Liquidation
Loss Interest Distribution Amount; provided, however, that on the Class A
Cross-over Date, the balance of any amounts that would have been distributable
on such date pursuant to clause (c) of the definition of the term "Class A
Formula Distribution Amount" (assuming a sufficient Amount Available) but for
the operation of the proviso in such definition shall instead be included in
clause (c) of this definition; and provided, further, that the aggregate of all
amounts distributed for all Payment Dates pursuant to clause (c) of this
definition shall not exceed the Original Class M-1 Principal Balance.
"Class M-1 Formula Interest Distribution Amount" means, for any Payment
Date, the sum of the amounts specified in clauses (a) and (b) of the definition
of the term "Class M-1 Formula Distribution Amount".
"Class M-1 Formula Liquidation Loss Interest Distribution Amount"
means, for any Payment Date, the sum of (a) the Class M-1 Liquidation Loss
Interest Amount, if any, and (b) the Unpaid Class M-1 Liquidation Loss Interest
Shortfall, if any.
"Class M-1 Interest Shortfall" means, for any Payment Date, the amount,
if any, by which (a) the Class M-1 Formula Interest Distribution Amount exceeds
(b) the amount distributed to Class M-1 Certificateholders on such Payment Date
pursuant to Section 8.04(b)(3).
"Class M-1 Liquidation Loss Interest Amount" means, for any Payment
Date, an amount equal to one month's interest (or, as to the first Payment Date,
interest from and including the Closing Date to but excluding October 15, 1999)
at the Class M-1 Pass-Through Rate on the Class M-1 Liquidation Loss Principal
Amount (if any) for the immediately preceding Payment Date.
"Class M-1 Liquidation Loss Interest Shortfall" means, for any Payment
Date, the amount, if any, by which (a) the Class M-1 Formula Liquidation Loss
Interest Distribution Amount exceeds (b) any amount distributed to Class M-1
Certificateholders on such Payment Date pursuant to Section 8.04(b)(10).
"Class M-1 Liquidation Loss Principal Amount" means, for any Payment
Date, the lesser of (a) the Class M-1 Principal Balance (after giving effect to
all distributions of principal on the Class M-1 Certificates on such Payment
Date) and (b) the excess, if any, of the Aggregate Liquidation Loss Principal
Amount over the aggregate of the Class M-2 Principal Balance and the Class B
Principal Balance (after giving effect to all distributions of principal on the
Class M-2 and Class B Certificates on such Payment Date).
"Class M-1 Principal Balance" means, for any Payment Date, the Original
Class M-1 Principal Balance less all amounts previously distributed to Holders
of Class M-1 Certificates in respect of principal.
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"Class M-2 Adjusted Principal Balance" means, for any Payment Date, the
Class M-2 Principal Balance for that Payment Date minus the Class M-2
Liquidation Loss Principal Amount (if any) for the immediately preceding Payment
Date.
"Class M-2 Certificate" means any one of the Class M-2 Certificates
executed and delivered by the Trustee and authenticated by the Certificate
Registrar substantially in the form set forth in Exhibit B and evidencing an
interest designated as a "regular interest" in the Master REMIC for purposes of
the REMIC Provisions.
"Class M-2 Cross-over Date" means the Payment Date on which the Class
M-2 Principal Balance (after giving effect to the distributions of principal on
the Class M-2 Certificates on such Payment Date) is reduced to zero.
"Class M-2 Distribution Amount" means, for any Payment Date, the lesser
of (a) the Class M-2 Formula Distribution Amount and (b) that portion of the
Amount Available eligible for distribution in respect of such amount in
accordance with the priorities set forth in Section 8.04(b); provided that after
the Class M-2 Cross-over Date the Class M-2 Distribution Amount shall be zero.
"Class M-2 Formula Distribution Amount" means, for any Payment Date, an
amount equal to the sum of (a) one month's interest (or, as to the first Payment
Date, interest from and including the Closing Date to but excluding October 15,
1999) at the Class M-2 Pass-Through Rate on the Class M-2 Adjusted Principal
Balance for such Payment Date, (b) any Unpaid Class M-2 Interest Shortfall, (c)
if such Payment Date is after the Class M-1 Cross-over Date, but on or prior to
the Class M-2 Cross-over Date, the Senior Percentage of the Formula Principal
Distribution Amount and (d) any Class M-2 Formula Liquidation Loss Interest
Distribution Amount; provided, however, that on the Class M-1 Cross-over Date,
the balance of any amounts that would have been distributable on such date
pursuant to clause (c) of the definition of the term "Class M-1 Formula
Distribution Amount" (assuming a sufficient Amount Available) but for the
operation of the second proviso in such definition shall instead be included in
clause (c) of this definition; and provided, further, that the aggregate of all
amounts distributed for all Payment Dates pursuant to clause (c) of this
definition shall not exceed the Original Class M-2 Principal Balance.
"Class M-2 Formula Interest Distribution Amount" means, for any Payment
Date, the sum of the amounts specified in clauses (a) and (b) of the definition
of the term "Class M-2 Formula Distribution Amount."
"Class M-2 Formula Liquidation Loss Interest Distribution Amount"
means, for any Payment Date, the sum of (a) the Class M-2 Liquidation Loss
Interest Amount, if any, and (b) the Unpaid Class M-2 Liquidation Loss Interest
Shortfall, if any.
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"Class M-2 Interest Shortfall" means, for any Payment Date, the amount,
if any, by which (a) the Class M-2 Formula Interest Distribution Amount, exceeds
(b) the amount distributed to Class M-2 Certificateholders on such Payment Date
pursuant to Section 8.04(b)(4).
"Class M-2 Liquidation Loss Interest Amount" means, for any Payment
Date, an amount equal to one month's interest (or, as to the first Payment Date,
interest from and including the Closing Date to but excluding October 15, 1999)
at the Class M-2 Pass-Through Rate on the Class M-2 Liquidation Loss Principal
Amount (if any) for the immediately preceding Payment Date.
"Class M-2 Liquidation Loss Interest Shortfall" means, for any Payment
Date, the amount, if any, by which the Class M-2 Formula Liquidation Loss
Interest Distribution Amount exceeds any amount distributed to Class M-2
Certificateholders on such Payment Date pursuant to Section 8.04(b)(11).
"Class M-2 Liquidation Loss Principal Amount" means, for any Payment
Date, the lesser of (a) the Class M-2 Principal Balance (after giving effect to
all distributions of principal on the Class M-2 Certificates on such Payment
Date) and (b) the excess, if any, of the Aggregate Liquidation Loss Principal
Amount over the Class B Principal Balance (after giving effect to all
distributions of principal on the Class B Certificates on such Payment Date).
"Class M-2 Principal Balance" means, for any Payment Date, the Original
Class M-2 Principal Balance less all amounts previously distributed to Holders
of Class M-2 Certificates in respect of principal.
"Class Principal Balance" means any of the Class A-1A ARM, Class A-1B
ARM, Class A-1, Class A-2, Class A-3, Class A-3A, Class M-1, Class M-2, Class
B-1 or Class B-2 Principal Balances.
"Closing Date" means October 4, 1999.
"Code" means the Internal Revenue Code of 1986, as amended.
"Combined LTV" means, with respect to any Loan, the percentage obtained
by dividing (i) the sum of (a) the current principal balance of such Loan, plus
(b) the outstanding principal balance, as of the date of origination of such
Loan, of any loan secured by a prior lien on the property which secures the Loan
(the "Collateral"), by (ii) the lesser of (a) the appraised value of the
Collateral based on an appraisal made for the originator of the Loan by an
independent fee appraiser (or by an employee of the Originator who is a licensed
appraiser) at the time of origination of the Loan, and (b) the sales price of
the Collateral at the time of origination of the Loan; provided that, in the
case of a Loan the proceeds of which were used to refinance an existing mortgage
loan, the amount described in clause (ii)(a) shall be the amount to be used for
purposes of clause (ii).
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"Computer Tape" means the computer tape generated by the Originator
which provides information relating to the Loans and which was used by the
Originator in selecting the Loans, and includes the master file and the history
file.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of the execution of this Agreement is
located at the address set forth in Section 12.09.
"Counsel for the Originator" means Dorsey & Whitney LLP, or other legal
counsel for the Company.
"Cumulative Realized Loss Ratio" means, for any Payment Date, a
fraction, expressed as a percentage, the numerator of which is the Cumulative
Realized Losses for that Payment Date, and the denominator of which is the
Cut-off Date Pool Principal Balance.
"Cumulative Realized Losses" means, for any Payment Date, the sum of
the Realized Losses for that Payment Date and each preceding Payment Date since
the Cut-off Date.
"Cumulative Realized Losses Test" means, to be considered "satisfied"
for any Payment Date, that the Cumulative Realized Loss Ratio for such Payment
Date is less than or equal to 7.5%.
"Current Realized Loss Ratio" means, for any Payment Date, a fraction,
expressed as a percentage, the numerator of which is the aggregate Realized
Losses for such Payment Date and each of the five immediately preceding Payment
Dates, multiplied by two, and the denominator of which is the arithmetic average
of the Pool Scheduled Principal Balance as of the sixth preceding Payment Date
and the Pool Scheduled Principal Balance for such Payment Date.
"Current Realized Losses Test" means, to be considered "satisfied" for
any Payment Date, that the Current Realized Loss Ratio for such Payment Date is
less than or equal to 2.0%.
"Custodian" means at any time an Eligible Institution, or a financial
institution organized under the laws of the United States or any State, which is
not an Affiliate of the Originator, which is subject to supervision and
examination by Federal or State authorities and whose commercial paper or
unsecured long-term debt (or, in the case of a member of a bank holding company
system, the commercial paper or unsecured long-term debt of such bank holding
company) has been rated A-1 by S&P and F-1 by Fitch in the case of commercial
paper, or BBB+ or higher by both S&P and Fitch in the case of unsecured
long-term debt, as is acting at such time as Custodian of the Loan Files
pursuant to Section 4.01.
"Cut-off Date" means with respect to each Loan (other than a Subsequent
Loan), August 31, 1999 (or the date of origination, if later).
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"Cut-off Date Pool Principal Balance" means the aggregate of the
Cut-off Date Principal Balances of all Loans.
"Cut-off Date Principal Balance" means, (i) as to any Initial Loan, the
unpaid principal balance thereof at the Cut-off Date after giving effect to all
installments of principal due prior thereto, and (ii) as to any Subsequent Loan,
the unpaid principal balance thereof at the related Subsequent Cut-off Date,
after giving effect to all installments of principal due prior thereto.
"Defaulted Loan" means a Loan with respect to which the Servicer
commenced foreclosure proceedings, made a sale of such Loan to a third party for
foreclosure or enforcement, or as to which there was a Delinquent Payment 180 or
more days past due.
"Definitive Certificates" has the meaning assigned in Section 9.02(e).
"Delinquent Payment" means, as to any Loan, with respect to any Due
Period, any payment or portion of a payment that was originally scheduled to be
made during such Due Period under such Loan (after giving effect to any
reduction in the principal amount deemed owed on such Loan by the Obligor) and
was not received or applied during such Due Period and deposited in the
Certificate Account, whether or not any payment extension has been granted by
the Servicer; provided, however, that with respect to any Liquidated Loan, the
payment scheduled to be made in the Due Period in which such Loan became a
Liquidated Loan shall not be deemed a Delinquent Payment.
"Depository" means the initial Depository, The Depository Trust
Company, the nominee of which is Cede & Co., as the registered Holder of (i) one
Class A-1A ARM Certificate evidencing $175,000,000 in Original Class A-1A ARM
Principal Balance, (ii) one Class A-1B ARM Certificate evidencing $75,000,000 in
Original Class A-1B ARM Principal Balance, (iii) one Class A-1 Certificate
evidencing $88,000,000 in Original Class A-1 Principal Balance (iv) one Class
A-2 Certificate evidencing $124,500,000 in Original Class A-2 Principal Balance,
(v) one Class A-3 Certificate evidencing $39,368,000 in Original Class A-3
Principal Balance, (vi) one Class A-3A Certificate evidencing $95,881,580 in
Original Class A-3A Principal Balance, (vii) one Class A-4 IO Certificate
evidencing a Class A-4 IO Original Notional Principal Amount of $75,000,000,
(viii) one Class M-1 Certificate evidencing $42,375,000 in Original Class M-1
Principal Balance, (ix) one Class M-2 Certificate evidencing $43,875,000 in
Original Class M-2 Principal Balance, (x) one Class B-1 Certificate evidencing
$26,250,000 in Original Class B-1 Principal Balance and (xi) one Class B-2
Certificate evidencing $28,500,420 in Original Class B-2 Principal Balance, and
any permitted successor depository. The Depository shall at all times be a
"clearing corporation" as defined in Section 8-102(5) of the Uniform Commercial
Code of the State of New York.
"Depository Participant" means a broker, dealer, bank or other
financial institution or other Person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
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"Determination Date" means the second Business Day preceding each
Payment Date during the term of this Agreement.
"Disqualified Organization" has the meaning assigned in Section
9.02(b)(3).
"Due Period" means a calendar month during the term of this Agreement.
"Electronic Ledger" means the electronic master record of promissory
notes of the Originator.
"Eligible Account" means, at any time, an account which is any of the
following: (i) an account maintained with an Eligible Institution; (ii) an
account or accounts the deposits in which are fully insured by either the Bank
Insurance Fund or the Savings Association Insurance Fund of the Federal Deposit
Insurance Corporation; (iii) a trust account (which shall be a "segregated trust
account") maintained with the corporate trust department of a federal or state
chartered depository institution or trust company with trust powers and acting
in its fiduciary capacity for the benefit of the Trustee hereunder, which
depository institution or trust company shall have capital and surplus of not
less than $50,000,000; or (iv) an account that will not cause S&P or Fitch to
downgrade or withdraw its then-current rating assigned to the Certificates, as
evidenced in writing by S&P and Fitch.
"Eligible Institution" means any depository institution (which may be
the Trustee or an Affiliate of the Trustee) organized under the laws of the
United States or any State, the deposits of which are insured to the full extent
permitted by law by the Federal Deposit Insurance Corporation, which is subject
to supervision and examination by Federal or State authorities and whose
short-term deposits have been rated A-1 by S&P and F-1 by Fitch (if rated by
Fitch) or whose unsecured long-term debt has been rated in one of the two
highest rating categories by both S&P and Fitch (if rated by Fitch).
"Eligible Investments" has the meaning assigned in Section 5.05(b).
"Eligible Servicer" means the Originator or any Person qualified to act
as Servicer of the Loans under applicable federal and state laws and
regulations, which Person services not less than an aggregate of $100,000,000 in
outstanding principal amount of manufactured housing conditional sales contracts
and installment loan agreements and home equity loans.
"Eligible Substitute Loan" means, as to (1) any Replaced Loan for which
an Eligible Substitute Loan is being substituted pursuant to Section 3.05(b),
and (2) any Prepaid Loan for which an Eligible Substitute Loan is being
substituted pursuant to Section 2.06, a Loan that (a) as of the date of its
substitution, satisfies all of the representations and warranties (which, except
when expressly stated to be as of origination, shall be deemed to be made as of
the date of its substitution rather than as of the Cut-off Date or the Closing
Date) in Section 3.02 and does not cause any of the representations and
warranties in Section 3.03, after giving effect to such
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substitution, to be incorrect, (b) after giving effect to the scheduled payment
due in the month of such substitution, has a Scheduled Principal Balance that is
not greater than the Scheduled Principal Balance of such Replaced Loan or, but
for such Principal Prepayment in Full, the Scheduled Principal Balance of such
Prepaid Loan, as the case may be, (c) has a Loan Interest Rate that is at least
equal to the Loan Interest Rate of such Replaced Loan or Prepaid Loan, as the
case may be, (d) has a remaining term to scheduled maturity that is not greater
than the remaining term to scheduled maturity of the Replaced Loan or Prepaid
Loan, as the case may be, (e) is of the same type (viz., Group I Fixed-Rate
Loan, Group II Fixed-Rate Loan, Group I Adjustable Rate Loan or Group II
Adjustable Rate Loan) as the Replaced Loan or Prepaid Loan, as the case may be,
(f) if an Adjustable Rate Loan, bears interest at a Loan Interest Rate that (i)
is subject to adjustment based on the same index as the Replaced Loan or Prepaid
Loan, as the case may be, (ii) is calculated by adding a specified percentage
amount (the "gross margin") to the index that is no less than the gross margin
on the Replaced Loan or Prepaid Loan, as the case may be, and (iii) is subject
to a minimum rate of interest no less than the minimum rate of interest on the
Replaced Loan or Prepaid Loan, as the case may be, and a maximum rate of
interest no more than 1.0% greater than the rate of interest on the Replaced
Loan or Prepaid Loan, as the case may be, (g) as of the date of its origination,
was identified by the Originator under its standard underwriting criteria as the
same credit grade as the Replaced Loan or Prepaid Loan, as the case may be, (h)
the mortgage securing such Loan is in a lien position that is the same or better
than the mortgage securing the Replaced Loan or Prepaid Loan, as the case may
be, and (i) the Combined LTV loan to value ratio of such Loan is not more than
100 basis points higher than the Combined LTV of the Replaced Loan or Prepaid
Loan, as the case may be.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Errors and Omissions Protection Policy" means the employee errors and
omissions policy maintained by the Servicer or any similar replacement policy
covering errors and omissions by the Servicer's employees, and meeting the
requirements of Section 5.09, all as such policy relates to Loans comprising a
portion of the corpus of the Trust.
"Event of Termination" has the meaning assigned in Section 7.01.
"Expense Adjusted Loan Rate" means, with respect to any Adjustable Rate
Loan, the then applicable mortgage rate thereon, minus the Expense Fee Rate.
"Expense Fee Rate" means .50%.
"Federal Bankruptcy Code" means 11 U.S.C. Section 101 et seq.
"Fidelity Bond" means the fidelity bond maintained by the Servicer or
any similar replacement bond, meeting the requirements of Section 5.09, as such
bond relates to Loans comprising a portion of the corpus of the Trust.
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"Final Payment Date" means the Payment Date on which the final
distribution in respect of Certificates will be made pursuant to Section 12.04.
"Fitch" means Fitch IBCA, Inc., or any successor thereto; provided
that, if Fitch no longer has a rating outstanding on any Class of the
Certificates, then references herein to "Fitch" shall be deemed to refer to the
NRSRO then rating any Class of the Certificates (or, if more than one such NRSRO
is then rating any Class of the Certificates, to such NRSRO as may be designated
by the Servicer), and references herein to ratings by or requirements of Fitch
shall be deemed to have the equivalent meanings with respect to ratings by or
requirements of such NRSRO.
"Fixed Rate Loan" means each Group I Fixed-Rate Loan or Group II
Fixed-Rate Loan.
"Formula Principal Distribution Amount" means, for any Payment Date,
the sum of:
(a) all scheduled payments of principal due on each
outstanding Loan during the prior Due Period as specified in the
amortization schedule at the time applicable thereto (after adjustments
for previous Partial Principal Prepayments and after any adjustment to
such amortization schedule by reason of any bankruptcy of an Obligor or
similar proceeding or any moratorium or similar waiver or grace
period); plus
(b) all Partial Principal Prepayments applied and all
Principal Prepayments in Full received during the prior Due Period with
respect to the Loans; plus
(c) the aggregate Scheduled Principal Balance of all Loans
that became Liquidated Loans during the prior Due Period plus the
amount of any reduction in principal balance of any Loan during the
prior Due Period pursuant to bankruptcy proceedings involving the
related Obligor; plus
(d) the aggregate Scheduled Principal Balance of all Loans
repurchased, and all amounts deposited in lieu of the repurchase of any
Loan, during the prior Due Period pursuant to Section 3.05(a) or, in
the event of a substitution of a Loan in accordance with Section
3.05(b), any amount required to be deposited by the Servicer in the
Certificate Account during the prior Due Period pursuant to Section
3.06(b)(vi); plus
(e) any amount described in clauses (a) through (d) above that
was not previously distributed because of an insufficient amount of
funds available in the Certificate Account if (1) the Payment Date
occurs on or after the Payment Date on which the Class B-2 Principal
Balance has been reduced to zero, or (2) such amount was not covered by
a Class B-2 Guaranty Payment and corresponding reduction in the Class
B-2 Principal Balance; minus
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(f) the sum of the Group I ARM Formula Principal Distribution
Amount, the Group II ARM Formula Principal Distribution Amount and the
Group II Fixed Formula Principal Distribution Amount.
"GNMA" means the Government National Mortgage Association, or any
successor thereto.
"Group I Adjustable Rate Loan" means each closed-end home equity loan
identified as such in the List of Loans, which Group I Adjustable Rate Loan is
to be assigned and conveyed by the Seller to the Trust, and includes, without
limitation, all related mortgages, deeds of trust and security deeds and any and
all rights to receive payments due pursuant thereto after the Cut-off Date, or
Subsequent Cut-off Date in the case of a Subsequent Group I Adjustable Rate
Loan.
"Group I ARM Formula Principal Distribution Amount" means, for any
Payment Date, the lesser of (A) the Class A-1A ARM Principal Balance, or (B) the
sum of the following amounts with respect to the related Due Period, in each
case computed in accordance with the method specified in the relevant Group I
Adjustable Rate Loan:
(i) all scheduled payments of principal due on each
outstanding Group I Adjustable Rate Loan during the prior Due Period as
specified in the amortization schedule at the time applicable thereto
(after adjustments for previous Partial Principal Prepayments and after
any adjustment to such amortization schedule by reason of any
bankruptcy of an Obligor or similar proceeding or any moratorium or
similar waiver or grace period); plus
(ii) the aggregate Scheduled Principal Balance of all Group I
Adjustable Rate Loans repurchased, and all amounts deposited in lieu of
the repurchase of any Group I Adjustable Rate Loan, during the prior
Due Period pursuant to Section 3.06(a) or, in the event of a
substitution of a Group I Adjustable Rate Loan in accordance with
Section 3.06(b), any amount required to be deposited by the Servicer in
the Certificate Account during the prior Due Period pursuant to Section
3.06(b)(vi); plus
(iii) the aggregate Scheduled Principal Balance of all Group I
Adjustable Rate Loans that became Liquidated Loans during the prior Due
Period plus the amount of any reduction in principal balance of any
Group I Adjustable Rate Loan during the prior Due Period pursuant to
bankruptcy proceedings involving the related Obligor; plus
(iv) all Partial Principal Prepayments applied and all
Principal Prepayments in Full received during the prior Due Period with
respect to the Group I Adjustable Rate Loans; plus
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(v) the amount, if any, by which the amounts described in
clauses (i) through (iv) of the definition of the Group II ARM Formula
Principal Distribution Amount exceed the Class A-1B ARM Principal
balance immediately prior to the Payment Date.
"Group II Adjustable Rate Loan" means each closed-end home equity loan
identified as such in the List of Loans, which Group II Adjustable Rate Loan is
to be assigned and conveyed by the Seller to the Trust, and includes, without
limitation, all related mortgages, deeds of trust and security deeds and any and
all rights to receive payments due pursuant thereto after the Cutoff Date, or
Subsequent Cut-off Date in the case of a Subsequent Group II Adjustable Rate
Loan.
"Group II ARM Formula Principal Distribution Amount" means, for any
Payment Date, the lesser of (A) the Class A-1B ARM Principal Balance, or (B) the
sum of the following amounts with respect to the related Due Period, in each
case computed in accordance with the method specified in the relevant Group II
Adjustable Rate Loan:
(i) all scheduled payments of principal due on each
outstanding Group II Adjustable Rate Loan during the prior Due Period
as specified in the amortization schedule at the time applicable
thereto (after adjustments for previous Partial Principal Prepayments
and after any adjustment to such amortization schedule by reason of any
bankruptcy of an Obligor or similar proceeding or any moratorium or
similar waiver or grace period); plus
(ii) the aggregate Scheduled Principal Balance of all Group II
Adjustable Rate Loans repurchased, and all amounts deposited in lieu of
the repurchase of any Group II Adjustable Rate Loan, during the prior
Due Period pursuant to Section 3.06(a) or, in the event of a
substitution of a Group II Adjustable Rate Loan in accordance with
Section 3.06(b), any amount required to be deposited by the Servicer in
the Certificate Account during the prior Due Period pursuant to Section
3.06(b)(vi); plus
(iii) the aggregate Scheduled Principal Balance of all Group
II Adjustable Rate Loans that became Liquidated Loans during the prior
Due Period plus the amount of any reduction in principal balance of any
Group II Adjustable Rate Loan during the prior Due Period pursuant to
bankruptcy proceedings involving the related Obligor; plus
(iv) all Partial Principal Prepayments applied and all
Principal Prepayments in Full received during the prior Due Period with
respect to the Group II Adjustable Rate Loans; plus
(v) the amount, if any, by which the amounts described in
clauses (i) through (iv) of the definition of the Group I ARM Formula
Principal Distribution Amount exceed the Class A-1A ARM Principal
Balance immediately prior to the Payment Date.
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"Group II Fixed Formula Principal Distribution Amount" means, for any
Payment Date, the lesser of (A) the Class A-3A Principal Balance, or (B) the sum
of the following amounts with respect to the related Due Period, in each case
computed in accordance with the method specified in the relevant Group II Fixed
Rate Loan:
(i) all scheduled payments of principal due on each
outstanding Group II Fixed Rate Loan during the prior Due Period as
specified in the amortization schedule at the time applicable thereto
(after adjustments for previous Partial Principal Prepayments and after
any adjustment to such amortization schedule by reason of any
bankruptcy of an Obligor or similar proceeding or any moratorium or
similar waiver or grace period); plus
(ii) the aggregate Scheduled Principal Balance of all Group II
Fixed Rate Loans repurchased, and all amounts deposited in lieu of the
repurchase of any Group II Fixed Rate Loan, during the prior Due Period
pursuant to Section 3.06(a) or, in the event of a substitution of a
Group II Fixed Rate Loan in accordance with Section 3.06(b), any amount
required to be deposited by the Servicer in the Certificate Account
during the prior Due Period pursuant to Section 3.06(b)(vi); plus
(iii) all Partial Principal Prepayments applied and all
Principal Prepayments in Full received during the prior Due Period with
respect to the Group II Fixed Rate Loans; plus
(iv) the aggregate Scheduled Principal Balance of all Group II
Fixed Rate Loans that became Liquidated Loans during the prior Due
Period plus the amount of any reduction in principal balance of any
Group II Fixed Rate Loan during the prior Due Period pursuant to
bankruptcy proceedings involving the related Obligor; plus
(v) the amount, if any, by which the amounts described in
clauses (i) through (iv) of the definition of the Group I ARM Formula
Principal Distribution Amount exceed the Class A-1A ARM Principal
Balance immediately prior to the Payment Date.
"Group I Fixed-Rate Loan" means each closed-end home equity loan
identified as such in the List of Loans, which Group I Fixed-Rate Loan is to be
assigned and conveyed by the Seller to the Trust, and includes, without
limitation, all related mortgages, deeds of trust and security deeds and any and
all rights to receive payments due pursuant thereto after the Cut-off Date, or
Subsequent Cut-off Date with respect to a Subsequent Group I Fixed Rate Loan.
"Group II Fixed-Rate Loan" means each closed-end home equity loan
identified as such in the List of Loans, which Group II Fixed-Rate Loan is to be
assigned and conveyed by the Seller to the Trust, and includes, without
limitation, all related mortgages, deeds of trust and security deeds and any and
all rights to receive payments due pursuant thereto after the Cut-off Date.
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"HUD" means the United States Department of Housing and Urban
Development, or any successor thereto.
"Independent" means, when used with respect to any specified Person,
any Person who (i) is in fact independent of the Originator and the Servicer,
(ii) does not have any direct financial interest or any material indirect
financial interest in the Originator or the Servicer or in an Affiliate of
either, and (iii) is not connected with the Originator or the Servicer as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions. Whenever it is provided herein that any
Independent Person's opinion or certificate shall be furnished to the Trustee,
such opinion or certificate shall state that the signatory has read this
definition and is Independent within the meaning set forth herein.
"Initial Group I Adjustable Rate Loan" means an Initial Loan that is a
Group I Adjustable Rate Loan.
"Initial Group II Adjustable Rate Loan" means an Initial Loan that is a
Group II Adjustable Rate Loan.
"Initial Group I Fixed Rate Loan" means an Initial Loan that is a Group
I Fixed Rate Loan.
"Initial Loan" means a Loan identified on the List of Loans attached
hereto as of the Closing Date.
"Interest Reset Period" means, with respect to any Payment Date, the
period from and including the prior Payment Date (or, with respect to the first
Payment Date, from and including the Closing Date) to but excluding such Payment
Date.
"LIBOR" means, with respect to any Interest Reset Period, the offered
rate, as established by the Calculation Agent, for United States dollar deposits
for one month that appears on Telerate Page 3750 as of 11:00 A.M., London time,
on the LIBOR Determination Date for such Interest Reset Period. If on any LIBOR
Determination Date the offered rate does not appear on Telerate Page 3750, the
Calculation Agent will request each of the reference banks (which shall be major
banks that are engaged in transactions in the London interbank market selected
by the Calculation Agent) to provide the Trustee with its offered quotation for
United States dollar deposits for one month to prime banks in the London
interbank market as of 11:00 A.M., London time, on such date. If at least two
reference banks provide the Calculation Agent with such offered quotations,
LIBOR on such date will be the arithmetic mean, rounded upwards, if necessary,
to the nearest 1/100,000 of 1% (.0000001), with five one-millionths of a
percentage point rounded upward, of all such quotations. If on such date fewer
than two of the reference banks provide the Calculation Agent with such offered
quotations, LIBOR on such date will be the arithmetic mean, rounded upwards, if
necessary, to the nearest 1/100,000 of 1% (.0000001), with five one-millionths
of a percentage point rounded upward, of the offered per annum rates
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that one or more leading banks in the City of New York selected by the
Calculation Agent are quoting as of 11:00 A.M., New York City time, on such date
to leading European banks for United States dollar deposits for one month;
provided, however, that if such banks are not quoting as described above, LIBOR
for such date will be LIBOR applicable to the Interest Reset Period immediately
preceding such Interest Reset Period; and provided, further, that if the result
of the foregoing would be for three consecutive Payment Dates to base LIBOR on
the rate applicable in the immediately preceding Interest Reset Period, for such
third consecutive Payment Date the Calculation Agent shall instead select an
alternative comparable index (over which the Calculation Agent has no control)
used for determining one-month Eurodollar lending rates that is calculated and
published (or otherwise made available) by an independent third party.
"LIBOR Business Day" as used herein means a day that is both a Business
Day and a day on which banking institutions in the City of London, England are
not required or authorized by law to be closed.
"LIBOR Determination Date" means the second LIBOR Business Day prior to
the first day of the related Interest Reset Period.
"Liquidated Loan" means, with respect to any Due Period, either
(1) a Defaulted Loan as to which the Servicer has received from the
Obligor, or a third party purchaser of the Loan, all amounts which the Servicer
reasonably and in good faith expects to recover from or on account of such Loan,
or
(2) a Loan (a) upon which all or a portion of the first payment of
interest due by the Obligor was added to principal, and (b) on which the Obligor
failed to pay the full amount of principal due on the Loan, as computed by the
Servicer;
provided, however, that any Loan which the Originator is obligated to repurchase
pursuant to Section 3.06, and did so repurchase or substitute therefor an
Eligible Substitute Loan in accordance with Section 3.06, shall be deemed not to
be a Liquidated Loan; and provided, further, that with respect to Due Periods
beginning on or after September 2028, a Liquidated Loan also means any Loan as
to which the Servicer has commenced foreclosure proceedings, or made a sale of
the Loan to a third party for foreclosure or enforcement.
"Liquidation Expenses" means out-of-pocket expenses (exclusive of any
overhead expenses) which are incurred by the Servicer in connection with the
liquidation of any defaulted Loan, including, without limitation, legal fees and
expenses, and any related and unreimbursed expenditures for property taxes,
property preservation or restoration of the property to marketable condition.
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"Liquidation Proceeds" means cash (including insurance proceeds)
received in connection with the liquidation of defaulted Loans, whether through
repossession, foreclosure sale or otherwise.
"List of Loans" means the lists identifying each Loan constituting part
of the Trust Fund and attached either to this Agreement as Exhibit L-1, L-2, L-3
or L-4 or to a Subsequent Transfer Instrument, as such lists may be amended from
time to time pursuant to Section 2.06 or Section 3.06(b) to add Eligible
Substitute Loans and delete Replaced Loans or Prepaid Loans, as the case may be.
Each List of Loans shall set forth as to each Loan identified on it (i) the
Cut-off Date Principal Balance, (ii) the amount of monthly payments due from the
Obligor, (iii) the Loan Interest Rate and (iv) the maturity date.
"Loan" means each Fixed Rate Loan or Adjustable Rate Loan.
"Loan File" means, as to each Loan, (a) the original promissory note
duly endorsed in blank or in the name of the Trustee for the benefit of the
Certificateholders, (b) the original or a copy of the mortgage, deed of trust or
security deed or similar evidence of a lien on the related improved property and
evidence of due recording of such mortgage, deed of trust or security deed, if
available, and (c) if such Loan was originated by a lender other than the
Originator, the original or a copy of an assignment of the mortgage, deed of
trust or security deed by such lender to the Originator, (d) an assignment of
the mortgage, deed of trust or security deed to the Trustee or in blank, and (e)
any extension, modification or waiver agreements.
"Loan Interest Rate" means, as to any Loan, the annual rate of interest
specified in the Loan.
"Master REMIC" means the segregated pool of assets consisting of the
Subsidiary REMIC Regular Interests, with respect to which a separate REMIC
election is to be made.
"Minimum Loan Rate" means as to any Adjustable Rate Loan, the Minimum
Loan Interest Rate set forth in such Loan.
"Monthly Report" has the meaning assigned in Section 6.01.
"Monthly Servicing Fee" means, for any Payment Date, with respect to
the Loans, one-twelfth of the product of .50% and the Pool Scheduled Principal
Balance for the preceding Payment Date (or, in the case of the first Payment
Date, the Cut-off Date).
"Net Liquidation Loss" means, as to a Liquidated Loan, the difference
between (a) the Repurchase Price of such Loan, and (b) the Net Liquidation
Proceeds with respect to such Liquidated Loan, where such difference is a
positive number.
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"Net Liquidation Proceeds" means, as to a Liquidated Loan, the proceeds
received, or, for Loans which become Liquidated Loans pursuant to the last
proviso in the definition of "Liquidated Loan," the estimated proceeds to be
received, as of the last day of the Due Period in which such Loan became a
Liquidated Loan, from the Obligor, from a third party purchaser of the Loan,
under insurance, or otherwise, net of Liquidation Expenses.
"NRSRO" means any nationally recognized statistical rating
organization.
"Obligor" means the person who owes payments under a Loan.
"Officer's Certificate" means a certificate signed by the Chairman of
the Board, President or any Vice President of the Originator or the Seller and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may,
except as expressly provided herein, be salaried counsel for the Originator, the
Seller or the Servicer, as applicable, acceptable to the Trustee, the Originator
and the Seller.
"Original Aggregate Certificate Principal Balance" means $738,750,000.
"Original Class Principal Balance" means as to each Class of
Certificates, the amount set forth with respect to such Class in Section
2.05(b).
"Original Pre-Funded Amount" means the sum of the amounts deposited in
the Pre- Funding Account pursuant to Section 2.02(l) and (m).
"Original Principal Balance" means as to each Subsidiary REMIC Regular
Interest, the amount set forth with respect to such interest in Section 2.05(c).
"Over-Collateralization Amount" means, for any Payment Date, the
amount, if any, by which the Aggregate Certificate Principal Balance for such
Payment Date [before paying principal on that Payment Date] is less than the
Pool Scheduled Principal Balance for the immediately preceding Payment Date.
"Partial Principal Prepayment" means (a) any Principal Prepayment other
than a Principal Prepayment in Full and (b) any cash amount deposited in the
Certificate Account pursuant to the proviso in Section 3.06(a) or pursuant to
Section 3.06(b).
"Pass-Through Rate" means (i) with respect to each Class of
Certificates, the rate set forth for such Class in Section 2.05(b) and (ii) with
respect to each Subsidiary REMIC Regular Interest, the rate set forth for such
interest in Section 2.05(c).
"Paying Agent" has the meaning assigned in Section 8.01(c).
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"Payment Date" means the fifteenth day of each calendar month during
the term of this Agreement, or if such day is not a Business Day, the next
succeeding Business Day, commencing in October 1999.
"Percentage Interest" means, as to any Certificate or the Class C
Certificates, the percentage interest evidenced thereby in distributions made on
the related Class, such percentage interest being equal to: (i) as to any
Certificate, the percentage (carried to eight places) obtained from dividing the
denomination of such Certificate by the Original Principal Balance of the
related Class or, in the case of a Class A-4 IO Certificate, by the Class A-4 IO
Original Notional Principal Amount, and (ii) as to any Class C Certificate, the
percentage specified on the face of such Certificate. The aggregate Percentage
Interests for each Class of Certificates, the Class C Master Certificates and
Class C Subsidiary Certificates shall equal 100%, respectively.
"Permitted Transferee" means, in the case of a transfer of the Class C
Certificates, a Person that is not a Plan or a Disqualified Organization, except
as permitted by Sections 9.02(b)(2) and (3), respectively.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust
(including any beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof.
"Plan" has the meaning assigned in Section 9.02(b)(2).
"Pool Factor" means, at any time, the percentage derived from a
fraction, the numerator of which is the Aggregate Certificate Principal Balance
at such time and the denominator of which is the Original Aggregate Certificate
Principal Balance.
"Pool Scheduled Principal Balance" means, for any Payment Date, the
aggregate Scheduled Principal Balance for such Payment Date of all Loans that
were outstanding during the immediately preceding Due Period.
"Post-Funding Payment Date" means the Payment Date on, or the first
Payment Date after, the last day of the Pre-Funding Period.
"Pre-Funded Amount" means with respect to any date of determination,
the sum of the Pre-Funded Group I ARM Amount, the Pre-Funded Group II ARM Amount
and the Pre-Funded Group I Fixed Rate Amount.
"Pre-Funded Group I Fixed Rate Amount" means, with respect to any date
of determination, the amount then on deposit in the Pre-Funding Group I Fixed
Rate Subaccount, after giving effect to any sale of Subsequent Group I Fixed
Rate Loans to the Trust on such date.
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" Pre-Funded Group I ARM Amount" means, with respect to any date of
determination, the amount then on deposit in the Pre-Funding Group I ARM
Subaccount, after giving effect to any sale of Subsequent Group I Adjustable
Rate Loans to the Trust on such date.
" Pre-Funded Group II ARM Amount" means, with respect to any date of
determination, the amount then on deposit in the Pre-Funding Group II ARM
Subaccount, after giving effect to any sale of Subsequent Group II Adjustable
Rate Loans to the Trust on such date.
"Pre-Funding Account" means the account so designated, established and
maintained pursuant to Section 8.08.
"Pre-Funding Group I Fixed Rate Subaccount" means the account so
designated, established and maintained pursuant to Section 8.08.
"Pre-Funding Group I ARM Subaccount" means the account so designated,
established and maintained pursuant to Section 8.08.
"Pre-Funding Group II ARM Subaccount" means the account so designated,
established and maintained pursuant to Section 8.08.
"Pre-Funding Period" means the period beginning on the Closing Date and
ending on the earliest of (a) the date on which the amount on deposit in the
Pre-Funding Account is less than $10,000.00, or (b) the close of business on
December 14, 1999, or (c) the date on which an Event of Termination occurs.
"Prepaid Loan" has the meaning assigned in Section 2.06.
"Principal Prepayment" means a payment or other recovery of principal
on a Loan (exclusive of Liquidation Proceeds) which is received in advance of
its scheduled due date and applied upon receipt (or, in the case of a partial
prepayment, upon the next scheduled payment date on such Loan) to reduce the
outstanding principal amount due on such Loan prior to the date or dates on
which such principal amount is due.
"Principal Prepayment in Full" means any Principal Prepayment of the
entire principal balance of a Loan.
"Realized Losses" means, for any Payment Date, the aggregate Net
Liquidation Losses for all Loans that became Liquidated Loans during the
immediately preceding Due Period.
"Record Date" means, with respect to any Payment Date, the Business Day
immediately preceding such Payment Date.
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"REMIC" means a "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC Provisions" means the provisions of the federal income tax law
relating to REMICs, which appear at Sections 860A through 860G of the Code, and
related provisions and any temporary, proposed or final regulations promulgated
thereunder, as the foregoing may be in effect from time to time.
"Replaced Loan" has the meaning assigned in Section 3.06(b).
"Repurchase Price" means, with respect to a Loan to be repurchased
pursuant to Section 3.06 or which becomes a Liquidated Loan, an amount equal to
(a) the remaining principal amount outstanding on such Loan (without giving
effect to any Advances paid by the Servicer or the Trustee, as applicable, with
respect to such Loan pursuant to Section 8.02), plus (b) interest at the
Weighted Average Pass-Through Rate on such Loan from the end of the Due Period
with respect to which the Obligor last made a scheduled payment (without giving
effect to any Advances paid by the Servicer or the Trustee, as applicable, with
respect to such Loan pursuant to Section 8.02) through the date of such
repurchase or liquidation.
"Responsible Officer" means, with respect to the Trustee, the chairman
and any vice chairman of the board of directors, the president, the chairman and
vice chairman of any executive committee of the board of directors, every vice
president, assistant vice president, the secretary, every assistant secretary,
cashier or any assistant cashier, controller or assistant controller, the
treasurer, every assistant treasurer, every trust officer, assistant trust
officer and every other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by persons who at the time shall
be such officers, respectively, or to whom a corporate trust matter is referred
because of knowledge of, familiarity with, and authority to act with respect to
a particular matter.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., or any successor thereto; provided that, if S&P no
longer has a rating outstanding on any Class of the Certificates, then
references herein to "S&P" shall be deemed to refer to the NRSRO then rating any
Class of the Certificates (or, if more than one such NRSRO is then rating any
Class of the Certificates, to such NRSRO as may be designated by the Servicer),
and references herein to ratings by or requirements of S&P shall be deemed to
have the equivalent meanings with respect to ratings by or requirements of such
NRSRO.
"Scheduled Principal Balance" means, with respect to any Loan and any
Payment Date, the Cut-off Date or any Subsequent Cut-off Date, the principal
balance of such Loan as of the due date in the Due Period immediately preceding
such Payment Date, Cut-off Date or Subsequent Cut-off Date, as the case may be,
as specified in the amortization schedule at the time relating thereto (before
any adjustment to such amortization schedule by reason of any bankruptcy of an
Obligor or similar proceeding or any moratorium or similar waiver or grace
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period) after giving effect to any previous partial Principal Prepayments and to
the payment of principal due on such due date and irrespective of any
delinquency in payment by, or extension granted to, the related Obligor. If for
any Loan the Cut-off Date is the date of origination of the Loan, its Scheduled
Principal Balance as of the Cut-off Date is the principal balance of the Loan on
its date of origination.
"Senior Percentage" means, with respect to the Certificates:
(a) for any Payment Date prior to the Class B Cross-over Date,
100%; and
(b) for any Payment Date on or after the Class B Cross-over
Date, if each Class B Principal Distribution Test has been satisfied on
such Payment Date, a fraction, expressed as a percentage, the numerator
of which is the sum of the Class A Principal Balance (excluding the
Class A-1A ARM Principal Balance, the Class A-1B ARM Principal Balance
and the Class A-3A Principal Balance) and the Class M Principal Balance
for that Payment Date and the denominator of which is the Pool
Scheduled Principal Balance of the Loans, excluding the Adjustable Rate
Loans and the Group II Fixed Rate Loans, for the immediately preceding
Payment Date.
"Senior Subordination Percentage" means:
(i) on any Payment Date on which the Class A Principal Balance
has not been reduced to zero, a fraction, expressed as a percentage,
(x) the numerator of which is the sum of the Class M-1 Adjusted
Principal Balance, the Class M-2 Adjusted Principal Balance, the Class
B-1 Adjusted Principal Balance and the Class B-2 Principal Balance and
(y) the denominator of which is the Pool Scheduled Principal Balance;
or
(ii) on any Payment Date on which the Class A Principal
Balance has been reduced to zero and the Class M-1 Principal Balance
has not been reduced to zero, a fraction, expressed as a percentage,
(x) the numerator of which is the sum of the Class M-2 Adjusted
Principal Balance, the Class B-1 Adjusted Principal Balance and the
Class B-2 Principal Balance and (y) the denominator of which is the
Pool Scheduled Principal Balance; or
(iii) on any Payment Date on which the Class M-1 Principal
Balance has been reduced to zero and the Class M-2 Principal Balance
has not been reduced to zero, a fraction, expressed as a percentage,
(x) the numerator of which is the sum of the Class B-1 Adjusted
Principal Balance and the Class B-2 Principal Balance and (y) the
denominator of which is the Pool Scheduled Principal Balance; or
(iv) on any Payment Date on which the Class M-2 Principal
Balance has been reduced to zero and the Class B-1 Principal Balance
has not been reduced to zero, a fraction, expressed as a percentage,
(x) the numerator of which is the Class B-2 Adjusted
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Principal Balance and (y) the denominator of which is the Pool
Scheduled Principal Balance.
"Service Transfer" has the meaning assigned in Section 7.02.
"Servicer" means the Originator until any Service Transfer hereunder
and thereafter means the new servicer appointed pursuant to Article VII.
"Servicing Officer" means any officer of the Servicer involved in, or
responsible for, the administration and servicing of Loans whose name appears on
a list of servicing officers appearing in an Officer's Certificate furnished to
the Trustee by the Originator, as the same may be amended from time to time.
"Sixty-Day Delinquency Ratio" means, for any Payment Date, a fraction,
expressed as a percentage, the numerator of which is the aggregate of the
outstanding balances of all Loans that were delinquent 60 days or more as of the
end of the prior Due Period (including Loans in respect of which the related
real estate has been foreclosed upon but is still in inventory), and the
denominator of which is the Pool Scheduled Principal Balance for such Payment
Date.
"Step-up Rate Loan" means any Fixed Rate Loan bearing interest during
an initial period or periods at a fixed rate or fixed rates that are lower than
the fixed rate borne thereafter.
"Subsequent Cut-off Date" means, with respect to a Subsequent Loan, the
related Subsequent Transfer Date.
"Subsequent Group I Adjustable Rate Loan" means a Subsequent Loan that
is a Group I Adjustable Rate Loan.
"Subsequent Group II Adjustable Rate Loan" means a Subsequent Loan that
is a Group II Adjustable Rate Loan.
"Subsequent Group I Fixed Rate Loan" means a Subsequent Loan that is a
Group I Fixed Rate Loan.
"Subsequent Loan" means a Group I Fixed Rate Loan, a Group I Adjustable
Rate Loan or a Group II Adjustable Rate Loan sold by the Seller to the Trust
pursuant to Section 2.03, such Loan being identified as such in the Subsequent
Transfer Instrument.
"Subsequent Transfer Date" means, with respect to each Subsequent
Transfer Instrument, the date on which the related Subsequent Loans are sold to
the Trust.
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"Subsequent Transfer Instrument" means each Subsequent Transfer
Instrument dated as of a Subsequent Transfer Date executed by the Trustee, the
Originator and the Seller substantially in the form of Exhibit O, by which the
Seller sells Subsequent Loans to the Trust.
"Subsidiary REMIC" means the segregated pool of assets comprising the
Trust Fund, but excluding the Pre-Funding Account, the Capitalized Interest
Account and the Subsidiary REMIC Regular Interests.
"Subsidiary REMIC Accrued Interest" means with respect to each Payment
Date and each Subsidiary REMIC Regular Interest, an amount equal to one month's
interest (or, with respect to the first Payment Date, interest accrued from and
including the Closing Date to but excluding October 15, 1999) on the related
Subsidiary REMIC Principal Balance at the related Subsidiary REMIC Pass-Through
Rate.
"Subsidiary REMIC Pass-Through Rate" means, with respect to a
Subsidiary REMIC Regular Interest, the applicable rates set forth in Section
2.05(c).
"Subsidiary REMIC Principal Balance" means with respect to each
Subsidiary REMIC Regular Interest on any date of determination, the related
Original Principal Balance minus the aggregate of all amounts previously deemed
distributed with respect to principal thereof pursuant to Section 8.09.
"Subsidiary REMIC Regular Interest Designation" means the designations
set forth in Section 2.05(c).
"Subsidiary REMIC Regular Interest Distribution Amounts" means the
Subsidiary REMIC Regular Interest S-1 Distribution Amount and Subsidiary REMIC
Regular Interest S-2 Distribution Amount.
"Subsidiary REMIC Regular Interest S-1" means an uncertificated partial
undivided beneficial ownership interest designated as a "regular interest" in
the Subsidiary REMIC having the related Subsidiary REMIC Principal Balance and
bearing interest at the related Subsidiary REMIC Pass-Through Rate.
"Subsidiary REMIC Regular Interest S-1 Distribution Amount" means with
respect to any Payment Date, the sum of the amounts deemed to be distributed on
the Subsidiary REMIC Regular Interest S-1 for such Payment Date pursuant to
Section 8.09.
"Subsidiary REMIC Regular Interest S-2" means an uncertificated partial
undivided beneficial ownership interest designated as a "regular interest" in
the Subsidiary REMIC having the related Subsidiary REMIC Principal Balance and
bearing interest at the related Subsidiary REMIC Pass-Through Rate.
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<PAGE>
"Subsidiary REMIC Regular Interest S-3" means an uncertificated partial
undivided beneficial ownership interest designated as a "regular interest" in
the Subsidiary REMIC having the related Subsidiary REMIC Principal Balance and
bearing interest at the related Subsidiary REMIC Pass-Through Rate.
"Subsidiary REMIC Regular Interest S-3 Distribution Amount" means with
respect to any Payment Date, the sum of the amounts deemed to be distributed on
the Subsidiary REMIC Regular Interest S-3 for such Payment Date pursuant to
Section 8.09.
"Subsidiary REMIC Regular Interest S-2 Distribution Amount" means with
respect to any Payment Date, the sum of the amounts deemed to be distributed on
the Subsidiary REMIC Regular Interest S-2 for such Payment Date pursuant to
Section 8.09.
"Subsidiary REMIC Regular Interests" means Subsidiary REMIC Regular
Interest S-1 Subsidiary REMIC Regular Interest S-2 and Subsidiary REMIC Regular
Interest S-3.
"Telerate Page 3750" means the display page so designated on the Dow
Jones Telerate Service (or such other page as may replace that page on that
service, or such other service as may be nominated as the information vendor by
the Calculation Agent, for the purpose of displaying London interbank offered
rates of major banks).
"Thirty-Day Delinquency Ratio" means, for any Payment Date, a fraction,
expressed as a percentage, the numerator of which is the aggregate of the
outstanding balances of all Loans that were delinquent 30 days or more as of the
end of the prior Due Period (including Loans in respect of which the related
real estate has been foreclosed upon but is still in inventory), and the
denominator of which is the Pool Scheduled Principal Balance for such Payment
Date.
"Transfer Agreement" means that Transfer Agreement between Conseco
Finance Securitizations Corp., as Purchaser, and Green Tree Financial
Corporation, as Seller, dated as of September 1, 1999.
"Trust" means Home Equity Loan Trust 1999-F.
"Trust Fund" means the corpus of the Trust created by this Agreement
which consists of (i) all the rights, benefits and obligations arising from and
in connection with the Loans, including without limitation all related
mortgages, deeds of trust and security deeds and any and all rights to receive
payments on or with respect to the Loans due after the Cut-off Date, or
Subsequent Cut-off Date with respect to Subsequent Loans, (ii) all rights under
any hazard, flood or other individual insurance policy on the real estate
securing a Loan for the benefit of the creditor of such Loan, (iii) all rights
the Seller may have against the Originator in respect of the Loans and all
rights the Originator may have against the originating lender with respect to
Loans originated by a lender other than the Originator, (iv) all rights under
the Errors and Omissions Protection Policy and the Fidelity Bond as such policy
and bond relate to the Loans, (v) all rights
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under any title insurance policies, if applicable, on any of the properties
securing Loans, (vi) all documents contained in the Loan Files, (vii) the Class
B-2 Limited Guaranty, (viii) amounts in the Certificate Account, the Capitalized
Interest Account and the Pre-Funding Account (including all proceeds of
investments of funds in the Certificate Account) and (ix) all proceeds and
products of the foregoing.
"Trustee Advance" has the meaning assigned in Section 11.15.
"Underwriters" means Chase Securities Inc., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Credit Suisse First Boston Corporation, First Union
Capital Markets Corp. and Lehman Brothers Inc.
"Unpaid Class A Interest Shortfall" means, as to each Class of Class A
Certificates and any Payment Date, the amount, if any, of the Class A Interest
Shortfall applicable to such Class for the prior Payment Date, plus one month's
interest thereon (to the extent payment thereof is legally permissible) at the
related Pass-Through Rate.
"Unpaid Class B-1 Interest Shortfall" means, with respect to the Class
B-1 Certificates and any Payment Date, the amount, if any, of the Class B-1
Interest Shortfall for the prior Payment Date, plus one month's interest thereon
(to the extent payment thereof is legally permissible) at the Class B-1
Pass-Through Rate.
"Unpaid Class B-1 Liquidation Loss Interest Shortfall" means, with
respect to the Class B-1 Certificates and any Payment Date, the amount, if any,
of the Class B-1 Liquidation Loss Interest Shortfall for the prior Payment Date,
plus one month's interest thereon (to the extent payment thereof is legally
permissible) at the Class B-1 Pass-Through Rate.
"Unpaid Class B-2 Interest Shortfall" means, with respect to the Class
B-2 Certificates and any Payment Date, the amount, if any, of the Class B-2
Interest Shortfall for the prior Payment Date, plus one month's interest thereon
(to the extent payment thereof is legally permissible) at the Class B-2
Pass-Through Rate.
"Unpaid Class M-1 Interest Shortfall" means, with respect to the Class
M-1 Certificates and any Payment Date, the amount, if any, of the Class M-1
Interest Shortfall for the prior Payment Date, plus one month's interest thereon
(to the extent payment thereof is legally permissible) at the Class M-1
Pass-Through Rate.
"Unpaid Class M-1 Liquidation Loss Interest Shortfall" means, with
respect to the Class M-1 Certificates and any Payment Date, the amount, if any,
of the Class M-1 Liquidation Loss Interest Shortfall for the prior Payment Date,
plus one month's interest thereon (to the extent payment thereof is legally
permissible) at the Class M-1 Pass-Through Rate.
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<PAGE>
"Unpaid Class M-2 Interest Shortfall" means, with respect to the Class
M-2 Certificates and any Payment Date, the amount, if any, of the Class M-2
Interest Shortfall for the prior Payment Date, plus one month's interest thereon
(to the extent payment thereof is legally permissible) at the Class M-2
Pass-Through Rate.
"Unpaid Class M-2 Liquidation Loss Interest Shortfall" means, with
respect to the Class M-2 Certificates and any Payment Date, the amount, if any,
of the Class M-2 Liquidation Loss Interest Shortfall for the prior Payment Date,
plus one month's interest thereon (to the extent payment thereof is legally
permissible) at the Class M-2 Pass-Through Rate.
"Weighted Average Loan Rate" means, for any Payment Date, the weighted
average (determined by Scheduled Principal Balance) of the Loan Interest Rates
for all Loans that were outstanding during the immediately preceding month.
"Weighted Average Pass-Through Rate" means, for any Payment Date, with
respect to any Loan, the sum of (i) the weighted average (expressed as a
percentage and rounded to four decimal places) of the Class A-1A ARM, Class A-1B
ARM, Class A-1, Class A-2, Class A-3, Class A-3A, Class A-4IO, Class M-1, Class
M-2, Class B-1 and Class B-2 Pass-Through Rates, weighted on the basis of the
respective Class A-1A ARM, Class A-1B ARM, Class A-1, Class A-2, Class A-3,
Class A-3A, Class A-4 IO, Class M-1, Class M-2, Class B-1 and Class B-2
Principal Balances (or the Class A-4 Notional Principal Amount for the Class
A-4IO Certificate) immediately prior to such Payment Date, plus (ii) if such
Payment Date occurs prior to June 1, 2001, a rate, expressed as a percentage,
equal to (A) one year's interest (or, if less, interest for such number of
months as remain prior to the Payment Date occurring in May, 2001) on the Class
A-4 IO Notional Principal Amount at the Class A-4 IO Pass-Through Rate, by (B)
the Aggregate Certificate Principal Balance.
SECTION 1.03. Calculation of Interest on the Certificates and
Subsidiary REMIC Regular Interests. Interest on the Class A-1A ARM and Class
A-1B ARM Certificates shall be computed on the basis of actual days elapsed in a
year of 360 days. Interest on each other Class of Certificates and each
Subsidiary REMIC Regular Interest shall be computed on the basis of a 360-day
year of twelve 30-day months.
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<PAGE>
ARTICLE II
ESTABLISHMENT OF TRUST; TRANSFER OF LOANS
-----------------------------------------
SECTION 2.01. Closing.
a. There is hereby created, by the Seller as settlor, a separate trust
which shall be known as Home Equity Loan Trust 1999-F. The Trust shall be
administered pursuant to the provisions of this Agreement for the benefit of the
Certificateholders and the Class C Certificateholders.
b. The Seller hereby transfers, assigns, sets over and otherwise
conveys to the Trustee on behalf of the Trust, by execution and delivery of an
assignment substantially in the form of Exhibit D hereto, all the right, title
and interest of the Seller in and to the Loans, including all rights to receive
payments on or with respect to the Loans due after the Cut-off Date, or
Subsequent Cut-off Date in respect of the Subsequent Loans, all rights of the
Seller under the Transfer Agreement and all other assets now or hereafter
included in the Trust Fund. The Seller concurrently hereby assigns without
recourse all the right, title and interest of the Seller in and to the
Subsidiary REMIC Regular Interests to the Trustee for the benefit of the
Certificateholders. Each such transfer and assignment is intended by the Seller
to be a sale of such assets for all purposes, including, without limitation, the
Federal Bankruptcy Code, to the end that all such assets will hereafter cease to
be the property of the Seller and would not be includable in the estate of the
Seller or the Originator for purposes of Section 541 of the Federal Bankruptcy
Code.
c. Although the parties intend that each conveyance pursuant to this
Agreement of the Seller's right, title and interest in and to the Loans
(including the Subsequent Loans) and in the Subsidiary REMIC Regular Interests
shall constitute a purchase and sale and not a loan, if such conveyances are
deemed to be loans, the parties intend that the rights and obligations of the
parties to such loans shall be established pursuant to the terms of this
Agreement. If the conveyances are deemed to be loans, the parties further intend
and agree that the Originator and the Seller shall be deemed to have granted to
the Trustee and the Originator and the Seller does hereby grant to the Trustee,
a perfected first-priority security interest in the Trust Fund and in the
Subsidiary REMIC Regular Interests, and that this Agreement shall constitute a
security agreement under applicable law. If the trust created by this Agreement
terminates prior to the satisfaction of the claims of any Person under any
Certificate or Class C Certificate, the security interest created hereby shall
continue in full force and effect and the Trustee shall be deemed to be the
collateral agent for the benefit of such Person.
SECTION 2.02. Conditions to the Closing. On or before the Closing Date,
the Seller shall deliver or cause to be delivered the following documents to the
Trustee:
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a. The List of Loans attached to this Agreement as Exhibits
L-1, L-2, L-3 and L-4, certified by the Chairman of the Board,
President or any Vice President of the Seller.
b. A certificate of an officer of the Seller substantially in
the form of Exhibit E hereto.
c. An Opinion of Counsel for the Seller substantially in the
form of Exhibit F hereto.
d. A letter from KPMG LLP or another nationally recognized
accounting firm, stating that such firm has reviewed the Initial Loans
on a statistical sampling basis and, based on such sampling, concluding
that the Initial Loans conform in all material respects to the List of
Loans attached hereto as Exhibits L-1, L-2, L-3 and L-4, to a
confidence level of 97.5%, with an error rate not in excess of 1.8%,
specifying those Loans which do not so conform.
e. Copies of resolutions of the board of directors of the
Seller or of the executive committee of the board of directors of the
Seller approving the execution, delivery and performance of this
Agreement and the transactions contemplated hereunder, certified in
each case by the secretary or an assistant secretary of the Seller.
f. Officially certified recent evidence of due incorporation
and good standing of the Seller under the laws of the State of
Minnesota.
g. An Officer's Certificate listing the Servicer's Servicing
Officers.
h. Evidence of continued coverage of the Servicer under the
Errors and Omissions Protection Policy.
i. Evidence of deposit in the Certificate Account of all funds
received with respect to the Loans from the Cut-off Date to the Closing
Date, other than principal due on or before the Cut-off Date, together
with an Officer's Certificate to the effect that such amount is
correct.
j. An Officer's Certificate confirming that the Originator has
reviewed the original or a copy of each Initial Loan and each related
Loan File, that each such Loan and Loan File conforms in all material
respects with the List of Loans and that each such Loan File is
complete in accordance with the definition thereof and has been
delivered to the Trustee (or its custodian).
k. Assignments in recordable form to the Trustee of the
mortgages, deeds of trust and security deeds relating to the Initial
Loans.
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<PAGE>
l. Evidence of the deposit of $0.00 in the Pre-Funding Group I
ARM Subaccount, $0.00 in the Pre-Funding Group II ARM Subaccount and
$0.00 in the Pre- Funding Group I Fixed Rate Subaccount.
m. Evidence of the deposit of $0.00 in the Capitalized
Interest Account.
SECTION 2.03. Conveyance of the Subsequent Loans.
a. Subject to the conditions set forth in paragraph (b) below, in
consideration of the Trustee's delivery on the related Subsequent Transfer Dates
to or upon the order of the Seller of all or a portion of the balance of funds
in the Pre-Funding Group I ARM Subaccount, the Pre- Funding Group II ARM
Subaccount and Pre-Funding Group I Fixed Rate Subaccount, the Seller shall on
any Subsequent Transfer Date sell, transfer, assign, set over and convey to the
Trust by execution and delivery of a Subsequent Transfer Instrument, all the
right, title and interest of the Seller in and to the Subsequent Loans
identified on the List of Loans attached to the Subsequent Transfer Instrument,
including all rights to receive payments on or with respect to the Subsequent
Loans due after the related Subsequent Cut-off Date, and all items with respect
to such Subsequent Loans in the related Loan Files. The transfer to the Trustee
by the Seller of the Subsequent Loans shall be absolute and is intended by the
Seller, the Trustee, the Certificateholders and the Class C Certificateholders
to constitute and to be treated as a sale of the Subsequent Loans by the Seller
or the Originator to the Trust.
The purchase price paid by the Trustee shall be one hundred percent
(100%) of the aggregate Cut-off Date Principal Balances of such Subsequent
Loans. The purchase price of Subsequent Group I Fixed Rate Loans shall be paid
solely with amounts in the Pre-Funding Group I Fixed Rate Subaccount. The
purchase price of Subsequent Group I Adjustable Rate Loans shall be paid solely
with amounts in the Pre-Funding Group I ARM Subaccount. The purchase price of
Subsequent Group II Adjustable Rate Loans shall be paid solely with amounts in
the Pre-Funding Group II ARM Subaccount. This Agreement shall constitute a fixed
price contract in accordance with Section 860G(a)(3)(A)(ii) of the Code.
b. The Seller shall transfer to the Trustee the Subsequent Loans, and
the Trustee shall release funds from the Pre-Funding Group I ARM Subaccount, the
Pre-Funding Group II ARM Subaccount or the Pre-Funding Group I Fixed Rate
Subaccount, as applicable, only upon the satisfaction of each of the following
conditions on or prior to the related Subsequent Transfer Date:
(i) the Seller shall have provided the Trustee with an
Addition Notice at least five Business Days prior to the Subsequent
Transfer Date and shall have provided any information reasonably
requested by the Trustee with respect to the Subsequent Loans;
(ii) the Seller shall have delivered the related Loan File for
each Subsequent Loan to the Trustee at least two Business Days prior to
the Subsequent Transfer Date;
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(iii) the Seller shall have delivered to the Trustee a duly
executed Subsequent Transfer Instrument substantially in the form of
Exhibit O, which shall include a List of Loans identifying the related
Subsequent Loans;
(iv) as of each Subsequent Transfer Date, as evidenced by
delivery of the Subsequent Transfer Instrument, the Seller shall not be
insolvent nor shall it have been made insolvent by such transfer nor
shall it be aware of any pending insolvency;
(v) such sale and transfer shall not result in a material
adverse tax consequence to the Trust (including the Master REMIC and
the Subsidiary REMIC) or the Certificateholders or Class C
Certificateholders;
(vi) the Pre-Funding Period shall not have ended;
(vii) the Seller shall have delivered to the Trustee an
Officer's Certificate, substantially in the form attached hereto as
Exhibit P, confirming the satisfaction of each condition precedent and
the representations specified in this Section 2.03 and in Sections
3.01, 3.02, 3.03, 3.04 and 3.05;
(viii) the Seller and the Originator shall have delivered to
the Trustee Opinions of Counsel addressed to S&P, Fitch and the Trustee
with respect to the transfer of the Subsequent Loans substantially in
the form of the Opinions of Counsel delivered to the Trustee on the
Closing Date regarding certain bankruptcy, corporate and tax matters;
(ix) No Subsequent Loan will have a Combined LTV greater than
100%, and;
(x) the Seller shall have delivered assignments in recordable
form to the Trustee of the mortgages, deeds of trust and security deeds
relating to the Subsequent Loans.
c. Before the last day of the Pre-Funding Period, the Seller shall
deliver to the Trustee:
(i) A letter from KPMG LLP or another nationally recognized
accounting firm retained by the Seller (with copies provided to S&P and
Fitch, the Underwriters and the Trustee) that is in form, substance and
methodology the same as that dated October 4, 1999 and delivered under
Section 2.02(d) of this Agreement, except that it shall address the
Subsequent Loans and their conformity in all material respects to the
characteristics described in Sections 2.03 (b)(ix) and 3.04(b) of this
Agreement.
(ii) Evidence that, as a result of the purchase by the Trust
of the Subsequent Loans, none of the ratings assigned to the Class A
Certificates as of the Closing Date by S&P or Fitch will be reduced,
withdrawn or qualified.
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(iii) Evidence that the aggregate Cut-off Date Principal
Balances of the Subsequent Loans, not specifically identified as
Subsequent Loans as of the Closing Date, do not exceed 25% of the
Original Aggregate Certificate Principal Balance.
SECTION 2.04. Acceptance by Trustee.
a. On the Closing Date and each Subsequent Transfer Date, if the
conditions set forth in Section 2.02 and 2.03, respectively, have been
satisfied, the Trustee shall deliver a certificate to the Seller substantially
in the form of Exhibit G hereto (an "Acknowledgement") acknowledging conveyance
of the Loans identified on the applicable List of Loans and the related Loan
Files to the Trustee and declaring that the Trustee, directly or through a
Custodian, will hold all Loans that have been delivered in trust, upon the
trusts herein set forth, for the use and benefit of all Certificateholders and
the Class C Certificateholders. The Trustee acknowledges the assignment to it of
the Subsidiary REMIC Regular Interests and declares that it holds and will hold
the Subsidiary REMIC Regular Interests in trust for the exclusive use and
benefit of the Certificateholders. In consideration of the assignment to it of
the Subsidiary REMIC Regular Interests, the Trustee has issued on the Closing
Date, to or upon the order of the Seller, the Certificates and the Class C
Certificates representing, in the aggregate, ownership of the entire beneficial
interest in the Master REMIC.
b. The Trustee or a Custodian shall review each Loan File, as described
in Exhibit G, within 60 days of the Closing Date or later receipt by it of the
Loan File. If, in its review of the Loan Files as described in Exhibit G, the
Trustee or a Custodian discovers a breach of the representations or warranties
set forth in Sections 2.03, 3.02, 3.03, 3.04 or 3.05 of this Agreement, or in
the Officer's Certificates delivered pursuant to Section 2.02(j) or 2.03(b)(vii)
of this Agreement, the Trustee or Custodian, as the case may be, shall notify
the Seller and the Originator shall cure such breach or repurchase or replace
such Loan pursuant to Section 3.06.
SECTION 2.05. REMIC Provisions.
a. The Originator, as Servicer, and the Class C Certificateholders, by
acceptance thereof, each agrees that, in accordance with the requirements of
Section 860D(b)(1) of the Code, the federal tax return of the Trust for its
first taxable year shall provide that the segregated pools of assets comprising
the Master REMIC and the Subsidiary REMIC, respectively, each elect to be
treated as a REMIC under the Code for such taxable year and all subsequent
taxable years, and the Trustee shall sign such return. In furtherance of the
foregoing, the Trustee (at the direction of the Originator, the Seller or the
Servicer), the Originator, the Seller and the Servicer shall take, or refrain
from taking, all such action as is necessary to maintain the status of each of
the Master REMIC and Subsidiary REMIC as a REMIC under the REMIC Provisions of
the Code, including, but not limited to, the taking of such action as is
necessary to cure any inadvertent termination of REMIC status. For purposes of
the REMIC election in respect of the Subsidiary REMIC, (i) the Subsidiary REMIC
Regular Interests shall be designated as the "regular interests" in the
Subsidiary REMIC and (ii) the Class C Subsidiary Certificate shall be
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designated as the sole class of "residual interests" in the Subsidiary REMIC.
For purposes of the REMIC election in respect of the Master REMIC, (i) the
Certificates shall be designated as the "regular interests" in the Master REMIC
and (ii) the Class C Master Certificate shall be designated as the sole Class of
"residual interests" in the Master REMIC. The Trustee shall not permit the
creation of any "interests" in the Master REMIC or Subsidiary REMIC (within the
meaning of Section 860G of the Code) other than the Subsidiary REMIC Regular
Interests and the interests represented by the Certificates and the Class C
Certificates.
b. The Certificates are being issued in thirteen classes. The following
terms of the Certificates are irrevocably established as of the Closing Date:
<TABLE>
<CAPTION>
Original Class
Principal Balance
(or Notional
Class Pass-Through Rate Per Annum Principal Amount)
- ---------------- ------------------------------------------------------- --------------------
<S> <C> <C>
Class A-1A ARM a floating rate per annum equal to the lesser of $175,000,000
(a) LIBOR plus the Class A-1A ARM Pass-Through
Margin, or (b) the Available Fund Pass-Through Rate,
but in no case more than 14.0%
Class A-1B ARM a floating rate per annum equal to the lesser of $75,000,000
(a) LIBOR plus the Class A-1AB ARM Pass-Through
Margin, or (b) the Available Funds Pass-Through Rate,
but in no case more than 14.0%
Class A-1 6.29% $88,000,000
Class A-2 6.72% $124,500,000
Class A-3 6.97% $39,368,000
Class A-3A 7.35% $95,881,580
Class A-4 IO 6.65% Original Notional
Principal Amount:
$75,000,000
Class M-1 a floating rate equal to the Adjusted Weighted Average $42,375,000
Loan Rate, but in no event greater than 7.97%
Class M-2 a floating rate equal to the Adjusted Weighted Average $43,875,000
Loan Rate, but in no event greater than 9.30%
Class B-1 a floating rate equal to the Adjusted Weighted Average $26,250,000
Loan Rate, but in no event greater than 9.50%
Class B-2 a floating rate equal to the Adjusted Weighted Average $28,500,420
Loan Rate, but in no event greater than 9.50%
</TABLE>
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<PAGE>
c. The following terms of the Subsidiary REMIC Regular Interests are
irrevocably established as of the Closing Date:
Subsidiary REMIC
Regular Interest Original Class
Designation: Subsidiary REMIC Pass-Through Rate: Principal Balance:
- -------------------- ----------------------------------- ------------------
S-1 Weighted Average Loan Rate $522,749,580
S-2 Weighted Average Loan Rate $75,000,000
S-3 Weighted Average Loan Rate $141,000,420
The latest possible maturity of the Subsidiary REMIC Regular Interests is in
October 15, 2030 (calculated using a prepayment assumption of 0% and assuming no
defaults or delinquencies on the Loans).
d. The Closing Date, which is the day on which each of the Master REMIC
and Subsidiary REMIC will issue all of their respective regular and residual
interests, is hereby designated as the "startup day" of the Master REMIC and
Subsidiary REMIC within the meaning of Section 860G(a)(9) of the Code.
e. After the Closing Date, neither the Trustee, the Originator, the
Seller nor any Servicer shall (i) accept any contribution of assets to the
Trust, (ii) dispose of any portion of the Trust other than as provided in
Sections 3.06, 3.07 and 8.06, (iii) engage in any transaction that would result
in the imposition of tax on "prohibited transactions," as defined in Section
860F(a)(1) of the Code, (iv) accept any contribution after the Closing Date that
is subject to the tax imposed by Section 860G(d) of the Code or (v) engage in
any activity or enter into any agreement that would result in the receipt by the
Trust of any "net income from foreclosure property" as defined in Section
860G(c)(2) of the Code, unless, prior to any such action set forth in clauses
(i), (ii), (iii), (iv) or (v), the Trustee shall have received an unqualified
Opinion of Counsel, which opinion shall not be an expense of the Trust, stating
that such action will not, directly or indirectly, (A) adversely affect the
status of the Master REMIC or Subsidiary REMIC as a REMIC, the status of the
Certificates and Class C Master Certificate as "regular interests" and the sole
class of "residual interests," respectively, in the Master REMIC, or of the
Subsidiary REMIC Regular Interests or Class C Subsidiary Certificate as the
"regular interests" and the sole class of "residual interests," respectively, in
the Subsidiary REMIC, in each case for federal income tax purposes, (B) affect
the distributions payable hereunder to the Certificateholders or the Class C
Certificateholders or (C) result in the imposition of any lien, charge or
encumbrance upon the Trust.
f. Upon the acquisition of any real property (including interests in
real property), or any personal property incident thereto, in connection with
the default of a Loan, the Servicer and the Trustee (at the direction of the
Servicer) shall take, or cause to be taken, such action as is necessary to sell
or otherwise dispose of such property within such period as is then required by
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the Code in order for such property to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code, unless the Servicer and the
Trustee receive an Opinion of Counsel to the effect that the holding by the
Trust of such property subsequent to the period then permitted by the Code will
not result in the imposition of any taxes on "prohibited transactions" of the
Trust, as defined in Section 860F of the Code, or cause the Master REMIC or
Subsidiary REMIC to fail to qualify as a REMIC at any time that the Certificates
or Class C Certificates are outstanding. The Servicer shall manage, conserve,
protect and operate such real property, or any personal property incident
thereto, so that such property will not fail to qualify as "foreclosure
property," as defined in Section 860G(a)(8) of the Code, and that the
management, conservation, protection and operation of such property will not
result in the receipt by the Master REMIC or Subsidiary REMIC of any income
attributable to any asset which is neither a qualified mortgage nor a permitted
investment within the meaning of the REMIC Provisions.
SECTION 2.06. Seller Option to Substitute for Prepaid Loans. The Seller
may, at its option, substitute new loans for Loans as to which a Principal
Prepayment in Full has been received by the Servicer prior to December 1, 1999
("Prepaid Loans"), up to a maximum of 5% of the Cut-Off Date Pool Principal
Balance, upon satisfaction of the following conditions:
(i) the Seller shall have conveyed to the Trustee the Loan to
be substituted for the Prepaid Loan and the Loan File related to such
Loan and the Seller shall have marked the Electronic Ledger indicating
that such Loan constitutes part of the Trust;
(ii) the Loan to be substituted is an Eligible Substitute Loan
and the Seller delivers an Officers' Certificate, substantially in the
form of Exhibit J-3 hereto, to the Trustee certifying that such Loan is
an Eligible Substitute Loan;
(iii) the Seller shall have delivered to the Trustee evidence
of filing of a UCC-1 financing statement executed by the Seller as
debtor, naming the Trustee as secured party and filed in Minnesota,
listing such Loan to be substituted as collateral;
(iv) the Seller shall have delivered to the Trustee an
executed assignment to the Trustee on behalf of the Trust in recordable
form for the mortgage securing such Loan to be substituted;
(v) such substitution shall be accomplished prior to the
Determination Date immediately following the calendar month in which
the Principal Prepayment in Full was received by the Servicer, and no
such substitution shall take place after December 14, 1999;
(vi) the Seller shall have delivered to the Trustee an Opinion
of Counsel (a) to the effect that the substitution of such Loan for
such Prepaid Loan will not cause the Master REMIC or Subsidiary REMIC
to fail to qualify as a REMIC at any time under then applicable REMIC
Provisions or cause any "prohibited transaction" that will result
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<PAGE>
in the imposition of a tax under such REMIC Provisions and (b) to the
effect of paragraph 9 of Exhibit F hereto; and
(vii) if the Principal Prepayment received in respect of such
Prepaid Loan is greater than the Scheduled Principal Balance of the
Loan to be substituted, such excess shall be distributed to
Certificateholders on the related Payment Date as a prepayment of
principal.
Upon satisfaction of such conditions, the Trustee shall add such Loan
to be substituted to the List of Loans.
Any substitutions pursuant to this Section 2.06 may be accomplished on
a loan-by-loan basis or on an aggregate basis as to all Prepaid Loans with
respect to a given calendar month.
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<PAGE>
ARTICLE III
REPRESENTATIONS AND WARRANTIES
------------------------------
The Seller and the Originator make the following representations and
warranties. The Trustee will rely on the representations and warranties in
accepting the Loans in trust and issuing the Certificates and the Class C
Certificates on behalf of the Trust. The repurchase or substitution and
indemnification obligations of the Originator set forth in Section 3.06
constitute the sole remedies available to the Trust, the Certificateholders or
the Class C Certificateholders for a breach of a representation or warranty of
the Originator set forth in Sections 2.03, 3.02, 3.03, 3.04 or 3.05 of this
Agreement, or in the Officer's Certificates delivered pursuant to Sections
2.02(j) or 2.03(b)(vii) of this Agreement.
SECTION 3.01. Representations and Warranties Regarding the Seller. The
Seller represents and warrants to the Certificateholders and the Class C
Certificateholders, effective on the Closing Date and each Subsequent Transfer
Date, that:
a. Organization and Good Standing. The Seller is a corporation
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization and has the corporate power to own
its assets and to transact the business in which it is currently
engaged. The Seller is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the
character of the business transacted by it or properties owned or
leased by it requires such qualification and in which the failure so to
qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of the Seller.
b. Authorization; Binding Obligations. The Seller has the
power and authority to make, execute, deliver and perform this
Agreement and all of the transactions contemplated under this
Agreement, and to create the Trust and cause it to make, execute,
deliver and perform its obligations under this Agreement and has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Agreement and to cause the Trust to be created.
When executed and delivered, this Agreement will constitute the legal,
valid and binding obligation of the Seller enforceable in accordance
with its terms, except as enforcement of such terms may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by the availability of equitable
remedies.
c. No Consent Required. The Seller is not required to obtain
the consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any
governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement.
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<PAGE>
d. No Violations. The execution, delivery and performance of
this Agreement by the Seller will not violate any provision of any
existing law or regulation or any order or decree of any court or the
Certificate of Incorporation or Bylaws of the Seller, or constitute a
material breach of any mortgage, indenture, contract or other agreement
to which the Seller is a party or by which the Seller may be bound.
e. Litigation. No litigation or administrative proceeding of
or before any court, tribunal or governmental body is currently
pending, or to the knowledge of the Seller threatened, against the
Seller or any of its properties or with respect to this Agreement, the
Certificates or the Class C Certificates which, if adversely
determined, would in the opinion of the Seller have a material adverse
effect on the transactions contemplated by this Agreement.
f. Licensing. The Seller is duly licensed in each state in
which Loans were originated to the extent the Seller is required to be
licensed by applicable law in connection with the origination and
servicing of the Loans.
SECTION 3.02. Representations and Warranties Regarding Each Loan. The
Originator has made the following representations and warranties to the Seller
in the Transfer Agreement, which representations and warranties the Seller has
assigned to the Trustee for the benefit of the Certificateholders and the Class
C Certificateholders, as of the Closing Date with respect to each Loan
identified on the List of Loans attached to this Agreement as Exhibits L-1, L-2,
L-3 and L-4 and as of each Subsequent Transfer Date with respect to each
Subsequent Loan identified on the List of Loans attached to the related
Subsequent Transfer Instrument:
a. List of Loans. The information set forth in the List of
Loans is true and correct as of its date.
b. Payments. No scheduled payment due under the Loan was
delinquent over 31 days as of the Cut-off Date or as of the related
Subsequent Cut-off Date, if a Subsequent Loan.
c. Costs Paid and No Waivers. The terms of the Loan have not
been waived, altered or modified in any respect, except by instruments
or documents identified in the Loan File. All costs, fees and expenses
incurred in making, closing and perfecting the lien of the Loan have
been paid. The subject real property has not been released from the
lien of such Loan.
d. Binding Obligation. The Loan is the legal, valid and
binding obligation of the Obligor thereunder and is enforceable in
accordance with its terms, except as such enforceability may be limited
by laws affecting the enforcement of creditors' rights generally.
3-2
<PAGE>
e. No Defenses. The Loan is not subject to any right of
rescission, setoff, counterclaim or defense, including the defense of
usury, and the operation of any of the terms of the Loan or the
exercise of any right thereunder will not render the Loan unenforceable
in whole or in part or subject to any right of rescission, setoff,
counterclaim or defense, including the defense of usury, and no such
right of rescission, setoff, counterclaim or defense has been asserted
with respect thereto.
f. Insurance Coverage. The Originator has been named as an
additional insured party under any hazard insurance on the property
described in the Loan, to the extent required by the Originator's
underwriting guidelines. If upon origination of the Loan, the property
securing the Loan was in an area identified in the Federal Register by
the Federal Emergency Management Agency as having special flood hazards
(and if flood insurance was required by federal regulation and such
flood insurance has been made available in the locale where the
property is located), the property is covered by a flood insurance
policy of the nature and in an amount which is consistent with the
servicing standard set forth in Section 5.02.
g. Combined LTV. The Combined LTV for the Loan other than a
Group II Fixed Rate Loan is not greater than 100%.
h. Lawful Assignment. The Loan was not originated in and is
not subject to the laws of any jurisdiction whose laws would make the
transfer of the Loan under this Agreement or pursuant to transfers of
the Certificates or Class C Certificates unlawful or render the Loan
unenforceable. The Originator has duly executed a valid blanket
assignment of the Loans transferred to the Seller, and has transferred
all its right, title and interest in such Loans, including all rights
the Originator may have against the originating lender with respect to
Loans originated by a lender other than the Originator, to the Seller.
The blanket assignment, any and all documents executed and delivered by
the Originator pursuant to Sections 2.01(b) and 2.03(b), and this
Agreement each constitutes the legal, valid and binding obligation of
the Originator enforceable in accordance with its respective terms.
i. Compliance with Law. At the date of origination of the
Loan, all requirements of any federal and state laws, rules and
regulations applicable to the Loan, including, without limitation,
usury and truth in lending laws, have been complied with and the
Originator shall for at least the period of this Agreement, maintain in
its possession, available for the Trustee's inspection, and shall
deliver to the Trustee upon demand, evidence of compliance with all
such requirements.
j. Loan in Force. The Loan has not been satisfied or
subordinated in whole or in part or rescinded, and the real estate
securing such Loan has not been released from the lien of such Loan in
whole or in part.
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<PAGE>
k. Valid Lien. The Loan has been duly executed and delivered
by the Obligor, and the lien created thereby has been duly recorded, or
has been delivered to the appropriate governmental authority for
recording and will be duly recorded within 180 days, and constitutes a
valid and perfected first, second, third or fourth priority lien on the
real estate described in such Loan.
l. Capacity of Parties. The signature(s) of the Obligor(s) on
the Loan are genuine and all parties to the Loan had full legal
capacity to execute the Loan.
m. Good Title. The Originator is the sole owner of the Loan
and has the authority to sell, transfer and assign such Loan to the
Seller under the terms of the Transfer Agreement. There has been no
assignment, sale or hypothecation of the Loan by the Originator except
the usual past hypothecation of the Loan in connection with the
Originator's normal banking transactions in the conduct of its
business, which hypothecation terminates upon sale of the Loan to the
Seller. The Originator has good and marketable title to the Loan, free
and clear of any encumbrance, equity, loan, pledge, charge, claim, lien
or encumbrance of any type and has full right to transfer the Loan to
the Seller.
n. No Defaults. As of the Cut-off Date or Subsequent Cut-off
Date, as applicable, there was no default, breach, violation or event
permitting acceleration existing under the Loan and no event which,
with notice and the expiration of any grace or cure period, would
constitute such a default, breach, violation or event permitting
acceleration under such Loan (except payment delinquencies permitted by
clause (b) above). The Originator has not waived any such default,
breach, violation or event permitting acceleration except payment
delinquencies permitted by clause (b) above.
o. Equal Installments. The Loan, unless it is a Step-up Rate
Loan or an Adjustable Rate Loan, has a fixed Loan Interest Rate and
provides for monthly payments (except, in the case of a Balloon Loan,
for the final monthly payment of such loan) which fully amortize the
loan over its term.
p. Enforceability. Each Loan contains customary and
enforceable provisions so as to render the rights and remedies of the
holder thereof adequate for the realization against the collateral of
the benefits of the lien provided thereby.
q. One Original. There is only one original executed
promissory note, which promissory note has been delivered to the
Trustee or its Custodian on or before the Closing Date or Subsequent
Transfer Date if a Subsequent Loan.
r. Genuine Documents. All documents submitted are genuine, and
all other representations as to each Loan, including the List of Loans,
are true and correct. Any copies of documents provided by the
Originator are accurate and complete (except that,
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<PAGE>
with respect to each Loan that was originated by a lender other than
the Originator, the Originator makes such representation and warranty
only to the best of the Originator's knowledge).
s. Origination. Each Loan was originated by a home equity
lender in the ordinary course of such lender's business or was
originated by the Originator directly.
t. Underwriting Guidelines. Each Loan was originated or
purchased in accordance with the Originator's then-current underwriting
guidelines.
u. Good Repair. The property described in the Loan is, to the
best of the Originator's knowledge, free of damage and in good repair.
v. Qualified Mortgage. The Loan represents a "qualified
mortgage" within the meaning of the REMIC Provisions. The Originator
represents and warrants that, either as of (i) the date of origination
(within the meaning of the REMIC Provisions) or (ii) the Closing Date
or, if a Subsequent Loan, the Subsequent Transfer Date, the fair market
value of the interest in real property securing each Loan was not less
than 80% of the "adjusted issue price" (in each case within the meaning
of the REMIC Provisions) of such Loan.
w. Interest Rate and Payment Amount Adjustments. With respect
to each Loan which does not provide for a fixed interest rate over the
life of the Loan, the Loan Interest Rate and monthly payment have been
adjusted in accordance with the terms of the Loan. All required notices
of interest rate and payment amount adjustments have been sent to the
Obligor on a timely basis and the computations of such adjustments were
properly calculated. All Loan Interest Rate adjustments have been made
in strict compliance with state and federal law and the terms of the
related Loan.
x. Adjustable Rate Loans. If an Adjustable Rate Loan, it is
covered by an American Land Title Association lender's title insurance
policy, with an adjustable rate mortgage endorsement, such endorsement
substantially in the form of ALTA Form 6.0 or 6.1. The applicable terms
of the Adjustable Rate Loan pertaining to adjustments of the Loan
Interest Rate and the monthly payment and payment adjustments in
connection therewith are enforceable and will not affect the priority
of the lien of the related mortgage. The Loan Interest Rate and monthly
payment on the Adjustable Rate Loan have been timely and appropriately
adjusted, if such adjustment is required, and the respective Obligor
timely and appropriately advised.
SECTION 3.03. Additional Representations and Warranties. The Seller
hereby represents and warrants to the Trustee for the benefit of the
Certificateholders and the Class C Certificateholders, as of the Closing Date
with respect to each Loan identified on the List of Loans attached to this
Agreement as Exhibits L-1, L-2, L-3 and L-4 and as of each Subsequent
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<PAGE>
Transfer Date with respect to each Subsequent Loan identified on the List of
Loans attached to the related Subsequent Transfer Instrument:
a. Lawful Assignment. The Loan was not originated in and is
not subject to the laws of any jurisdiction whose laws would make the
transfer of the Loan under this Agreement or pursuant to transfers of
the Certificates or Class C Certificates unlawful or render the Loan
unenforceable. The Seller has duly executed a valid blanket assignment
of the Loans transferred to the Trust, and has transferred all its
right, title and interest in such Loans. The blanket assignment, any
and all documents executed and delivered by the Seller pursuant to
Sections 2.01(b) and 2.03(b), and this Agreement each constitutes the
legal, valid and binding obligation of the Seller enforceable in
accordance with its respective terms.
b. Good Title. The Seller is the sole owner of the Loan and
has the authority to sell, transfer and assign such Loan to the Trust
under the terms of this Agreement. There has been no assignment, sale
or hypothecation of the Loan by the Seller, which hypothecation
terminates upon sale of the Loan to the Trust. The Seller has good and
marketable title to the Loan, free and clear of any encumbrance,
equity, loan, pledge, charge, claim, lien or encumbrance of any type
and has full right to transfer the Loan to the Trust.
SECTION 3.04. Representations and Warranties Regarding the Loans in the
Aggregate. The Originator has represented and warranted to the Seller in the
Transfer Agreement, which representations and warranties the Seller has assigned
to the Trustee for the benefit of the Certificateholders and the Class C
Certificateholders, as of the Closing Date with respect to the Initial Loans,
and as of each Subsequent Transfer Date with respect to the related Subsequent
Loans, that:
a. Amounts. As of the Closing Date, the sum of the Cut-off
Date Pool Principal Balance, plus the Original Pre-Funded Amount,
equals at least the Original Aggregate Certificate Principal Balance.
By Cut-off Date Principal Balance, the Initial Loans plus the
Subsequent Loans specifically identified as of the Closing Date
represent at least 75% of the Original Aggregate Certificate Principal
Balance.
b. Characteristics.
Group I Fixed Rate Loans. The Group Fixed Rate Loans have the
following characteristics: (i) 100% are secured by a mortgage, deed of
trust or security deed on the related real estate; (ii) none has a
remaining maturity of more than 360 months; (iii) none has a final
scheduled payment date later than September 2029; and (iv) none of the
Initial Group I Fixed Rate Loans has a Loan Interest Rate less than
6.94%.
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<PAGE>
The weighted average (by Scheduled Principal Balance) loan to
value ratio of the Group I Fixed Rate Loans as of the Post-Funding
Payment Date will not be more than 200 basis points more than such
ratio with respect to the Initial Group I Fixed Rate Loans.
The weighted average (by Scheduled Principal Balance) of the
Loan Interest Rates of the Group I Fixed Rate Loans as of the
Post-Funding Payment Date will not be more than 25 basis points less
than the weighted average of the Loan Interest Rates of the Initial
Group I Fixed Rate Loans. None of the Subsequent Group I Fixed Rate
Loans will have a Loan Interest Rate less than 6.94%.
The percentage (by Scheduled Principal Balance) of the Group I
Fixed Rate Loans as of the Post-Funding Payment Date which are
identified by the Originator under its standard underwriting criteria
as "B," "C," and "D" credits will not be more than 300 basis points,
200 basis points, and 100 basis points, respectively, more than the
percentage of Initial Group I Fixed Rate Loans identified as B, C, and
D credits.
Group II Fixed Rate Loans. The Group II Fixed Rate Loans have
the following characteristics: (i) 100% are secured by a mortgage, deed
of trust or security deed on the related real estate; (ii) none has a
remaining maturity of more than 360 months; (iii) none has a final
scheduled payment date later than September 2029; and (iv) none of the
Group II Fixed Rate Loans has a Loan Interest Rate less than 7.66%.
Group I Adjustable Rate Loans. The Group I Adjustable Rate
Loans have the following characteristics: (i) 100% are secured by a
mortgage, deed of trust or security deed creating a first lien on the
related real estate; (ii) none has a remaining maturity of more than
360 months; (iii) none has a final scheduled payment date later than
September 2029; (iv) the Loan Interest Rate on each is subject to
semiannual adjustment, after an initial period of up to 36 months, to
equal the sum of (A) the per annum rate equal to the average of
interbank offered rates for six-month U.S. dollar-denominated deposits
in the London market based on quotations of major banks, as published
in The Wall Street Journal, plus (B) a fixed percentage amount
specified in the related Loan (the "gross margin"), provided that the
Loan Interest Rate will not increase or decrease on any adjustment date
by more than 3.0% per annum and will not exceed a maximum rate
specified in the related Loan; (v) none has a gross margin of less than
2.0% or more than 10.0%; (vi) none had a principal balance at
origination of more than $240,000; and (vii) none of the Initial Group
I Adjustable Rate Loans have a Loan Interest Rate less than 6.94%.
None of the Initial Group I Adjustable Rate Loans has a
Minimum Loan Rate of less than 6.94%. None of the Subsequent Group I
Adjustable Rate Loans will have a Minimum Loan Rate of less than 6.94%.
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<PAGE>
The weighted average (by Scheduled Principal Balance) loan to
value ratio of the Group I Adjustable Rate Loans as of the Post-Funding
Payment Date will not be more than 200 basis points more than such
ratio with respect to the Initial Group I Adjustable Rate Loans.
The weighted average (by Scheduled Principal Balance) of the
Loan Interest Rates of the Group I Adjustable Rate Loans as of the
Post-Funding Payment Date will not be more than 25 basis points less
than the weighted average of the Loan Interest Rates of the Initial
Group I Adjustable Rate Loans.
The percentage (by Scheduled Principal Balance) of the Group I
Adjustable Rate Loans as of the Post-Funding Payment Date which are
identified by the Originator under its standard underwriting criteria
as "B," "C," and "D" credits will not be more than 300 basis points,
200 basis points, and 100 basis points, respectively, more than the
percentage of Initial Group I Adjustable Rate Loans identified as B, C,
and D credits.
Group II Adjustable Rate Loans. The Group II Adjustable Rate
Loans have the following characteristics: (i) 100% are secured by a
mortgage, deed of trust or security deed on the related real estate;
(ii) none has a remaining maturity of more than 360 months; (iii) none
has a final scheduled payment date later than September 2029; (iv) the
Loan Interest Rate on each is subject to semiannual adjustment, after
an initial period of up to 36 months, to equal the sum of (A) the per
annum rate equal to the average of interbank offered rates for
six-month U.S. dollar-denominated deposits in the London market based
on quotations of major banks, as published in The Wall Street Journal,
plus (B) a fixed percentage amount specified in the related Loan (the
"gross margin"), provided that the Loan Interest Rate will not increase
or decrease on any adjustment date by more than 3.0% per annum and will
not exceed a maximum rate specified in the related Loan; (v) none has a
gross margin of less than 2.0% or more than 10.0%; and (vi) none of the
Initial Group II Adjustable Rate Loans have a Loan Interest Rate less
than 6.94%.
None of the Initial Group II Adjustable Rate Loans has a
Minimum Loan Rate of less than 6.94%. None of the Subsequent Group II
Adjustable Rate Loans will have a Minimum Loan Rate of less than 6.94%.
The weighted average (by Scheduled Principal Balance) loan to
value ratio of the Group II Adjustable Rate Loans as of the
Post-Funding Payment Date will not be more than 200 basis points more
than such ratio with respect to the Initial Group II Adjustable Rate
Loans.
The weighted average (by Scheduled Principal Balance) of the
Loan Interest Rates of the Group II Adjustable Rate Loans as of the
Post-Funding Payment Date will not be
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more than 25 basis points less than the weighted average of the Loan
Interest Rates of the Initial Group II Adjustable Rate Loans.
The percentage (by Scheduled Principal Balance) of the Group
II Adjustable Rate Loans as of the Post-Funding Payment Date which are
identified by the Originator under its standard underwriting criteria
as "B," "C," and "D" credits will not be more than 300 basis points,
200 basis points, and 100 basis points, respectively, more than the
percentage of Initial Group II Adjustable Rate Loans identified as B,
C, and D credits.
c. Geographic Concentrations.
Group I Fixed Rate Loans. By Cut-off Date Principal Balance,
10.12% of the Initial Group I Fixed Rate Loans are secured by property
located in California, 7.09% in Michigan and 5.12% in Texas. No other
state represents more than 5% of the aggregate Cut-off Date Principal
Balances of the Initial Group I Fixed Rate Loans.
No more than 1% of Group I Fixed Rate Loans by Cut-off Date
Principal Balance are secured by property located in an area with the
same five-digit zip code.
Group II Fixed Rate Loans. By Cut-off Date Principal Balance,
8.38% of the Group II Fixed Rate Loans are secured by property located
in Illinois, 8.19% in Ohio, 7.29% in North Carolina, 7.26% in Michigan,
6.46% in Missouri, 6.25% in Kansas and 5.69% in Pennsylvania. No other
state represents more than 5% of the aggregate Cut-off Date Principal
Balances of the Group II Fixed Rate Loans.
No more than 1% of Group II Fixed Rate Loans by Cut-off Date
Principal Balance are secured by property located in an area with the
same five-digit zip code.
Group I Adjustable Rate Loans. By Cut-off Date Principal
Balance, 9.23% of the Initial Group I Adjustable Rate Loans are secured
by property located in California, 7.25% in Washington, 6.96% in Ohio,
5.38% in Colorado and 5.03% in Maryland. No other state represents more
than 5% of the aggregate Cut-off Date Principal Balances of the Initial
Group I Adjustable Rate Loans.
No more than 1% of the Group I Adjustable Rate Loans by
Cut-off Date Principal Balance are secured by property located in an
area with the same five-digit zip code.
Group II Adjustable Rate Loans. By Cut-off Date Principal
Balance, 12.94% of the Initial Group II Adjustable Rate Loans are
secured by property located in California, 10.64% in Maryland, 7.65% in
Virginia, 5.82% in Washington, 5.37% in Colorado and 5.25% in Ohio. No
other state represents more than 5% of the aggregate Cut-off Date
Principal Balances of the Initial Group II Adjustable Rate Loans.
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No more than 1% of the Group II Adjustable Rate Loans by
Cut-off Date Principal Balance are secured by property located in an
area with the same five-digit zip code.
d. Marking Records. The Originator has caused the portions of
the Electronic Ledger relating to the Loans to be clearly and
unambiguously marked to indicate that such Loans constitute part of the
Trust and are owned by the Trust in accordance with the terms of the
Trust created hereunder.
e. No Adverse Selection. No adverse selection procedures have
been employed in selecting the Loans.
f. Lender Concentration. No more than 5.0% of the Loans, by
Cut-off Date Principal Balance, were originated by any one lender
(other than the Originator).
SECTION 3.05. Representations and Warranties Regarding the Loan Files.
The Originator has represented and warranted to the Seller in the Transfer
Agreement, which representations and warranties the Seller has assigned to the
Trustee for the benefit of the Certificateholders and the Class C
Certificateholders that:
a. Possession. On the Closing Date, the Trustee or a Custodian
will have possession of each original Initial Loan and the related Loan
File. On each Subsequent Transfer Date, the Originator will have
possession of each original Subsequent Loan being transferred to the
Trust on that Subsequent Transfer Date and the related Loan File. There
are and there will be no custodial agreements or servicing contracts in
effect materially and adversely affecting the rights of the Originator
to make, or cause to be made, any delivery required hereunder or under
the Transfer Agreement.
b. Bulk Transfer Laws. The transfer, assignment and conveyance
of the Loans and the Loan Files by the Originator pursuant to the
Transfer Agreement is not subject to the bulk transfer or any similar
statutory provisions in effect in any applicable jurisdiction.
SECTION 3.06. Repurchases of Loans for Breach of Representations and
Warranties.
a. Subject to Section 3.06, the Originator shall repurchase a Loan, at
its Repurchase Price, not later than 90 days after the day on which the
Originator, the Servicer, the Seller or the Trustee first discovers or should
have discovered a breach of a representation or warranty of the Originator set
forth in Sections 2.03, 3.02, 3.03, 3.04 or 3.05, or in the Officer's
Certificates delivered pursuant to Sections 2.02(j) or 2.03(b)(vii), that
materially and adversely affects the Trust's, the Certificateholders' or the
Class C Certificateholders' interest in such Loan and which breach has not been
cured within such time; provided, however, that (i) in the event that a party
other than the Originator first becomes aware of such breach, such discovering
party shall notify
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the Originator in writing within 5 Business Days of the date of such discovery
and (ii) with respect to any Loan incorrectly described on the List of Loans
with respect to Cut-off Date Principal Balance, which the Originator would
otherwise be required to repurchase pursuant to this Section, the Originator
may, in lieu of repurchasing such Loan, deliver to the Seller for deposit in the
Certificate Account within 90 days from the date of such discovery cash in an
amount sufficient to cure such deficiency or discrepancy. Any such cash so
deposited shall be distributed to Certificateholders and the Class C
Certificateholders on the immediately following Payment Date as a collection of
principal or interest on such Loan, according to the nature of the deficiency or
discrepancy. Notwithstanding any other provision of this Agreement, the
obligation of the Originator under this Section shall not terminate upon a
Service Transfer pursuant to Article VII.
b. On or prior to the date that is the second anniversary of the
Closing Date, the Originator may, at its election, substitute an Eligible
Substitute Loan for a Loan that it is obligated to repurchase pursuant to
Section 3.06(a) (such Loan being referred to as the "Replaced Loan") upon
satisfaction of the following conditions:
(i) the Originator shall have conveyed to the Seller the Loan
to be substituted for the Replaced Loan and the Loan File related to
such Loan and the Originator shall have marked the Electronic Ledger
indicating that such Loan constitutes part of the Trust;
(ii) the Loan to be substituted is an Eligible Substitute Loan
and the Originator delivers an Officers' Certificate, substantially in
the form of Exhibit J-2 hereto, to the Trustee certifying that such
Loan is an Eligible Substitute Loan;
(iii) the Originator shall have delivered to the Trustee
evidence of filing of a UCC-1 financing statement executed by the
Originator as debtor, naming the Seller as secured party and filed in
Minnesota, listing such Loan to be substituted as collateral;
(iv) the Originator shall have delivered to the Trustee an
executed assignment to the Seller and to the Trustee on behalf of the
Trust in recordable form for the mortgage securing such Loan to be
substituted;
(v) the Originator shall have delivered to the Trustee an
Opinion of Counsel (a) to the effect that the substitution of such Loan
for such Replaced Loan will not cause the Master REMIC or Subsidiary
REMIC to fail to qualify as a REMIC at any time under then applicable
REMIC Provisions or cause any "prohibited transaction" that will result
in the imposition of a tax under such REMIC Provisions and (b) to the
effect of paragraph 9 of Exhibit F hereto; and
(vi) if the Scheduled Principal Balance of such Replaced Loan
is greater than the Scheduled Principal Balance of the Loan to be
substituted, the Originator shall have delivered to the Seller for
deposit in the Certificate Account the amount of such excess
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and shall have included in the Officers' Certificate required by clause
(ii) above a certification that such deposit has been made.
Upon satisfaction of such conditions, the Trustee shall add such Loan
to be substituted to, and delete such Replaced Loan from, the List of Loans.
Such substitution shall be effected prior to the first Determination Date that
occurs more than 90 days after the Originator becomes aware, or should have
become aware, or receives written notice from the Trustee, of the breach
referred to in Section 3.05(a). Promptly after any such substitution of a Loan,
the Originator shall give written notice of such substitution to S&P and Fitch.
c. If the Originator is required to repurchase a Loan under Section
3.06(a) or has elected to substitute an Eligible Substitute Loan for a Loan
under Section 3.06(b), and if the reason for such repurchase or substitution is
that the Originator has failed to deliver to the Trustee the Loan File for the
Loan to be repurchased or substituted for (except in the case of a failure to
deliver evidence of the lien on the related improved property and evidence of
due recording of such mortgage, deed of trust or security deed, if available),
then, notwithstanding the time periods set out in Sections 3.06(a) and 3.06(b),
the Originator shall either (i) repurchase such Loan, at its respective
Repurchase Price, within 30 days of the Closing Date, or (ii) substitute an
Eligible Substitute Loan for the Loan within 90 days of the Closing Date.
d. The Originator shall defend and indemnify the Seller, the Trustee,
the Certificateholders, and the Class C Certificateholders against all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel, which may be asserted against or incurred by any of them as
a result of any third-party action arising out of any breach of any such
representation and warranty.
SECTION 3.07. No Repurchase Under Certain Circumstances.
Notwithstanding any provision of this Agreement to the contrary, no repurchase
or substitution pursuant to Section 3.06 shall be made unless the Originator (at
its own expense) obtains for the Trustee an Opinion of Counsel addressed to the
Trustee that any such repurchase or substitution would not, under the REMIC
Provisions, (i) cause the Master REMIC or Subsidiary REMIC to fail to qualify as
a REMIC while any regular interest in such REMIC is outstanding, (ii) result in
a tax on prohibited transactions within the meaning of Section 860F(a)(2) of the
Code or (iii) constitute a contribution after the startup day subject to tax
under Section 860G(d) of the Code. The Originator diligently shall attempt to
obtain such Opinion of Counsel. In the case of a repurchase or deposit pursuant
to Section 3.06(a) or 3.07, the Originator shall, notwithstanding the absence of
such opinion as to the imposition of any tax as the result of such purchase or
deposit, repurchase such Loan or make such deposit and shall guarantee the
payment of such tax by paying to the Trustee the amount of such tax not later
than five Business Days before such tax shall be due and payable to the extent
that amounts previously paid over to and then held by the Trustee pursuant to
Section 6.06 are insufficient to pay such tax and all other taxes chargeable
under Section 6.06. Pursuant to Section 6.06, the Servicer is hereby directed to
withhold, and shall withhold and pay over to the Trustee, an amount sufficient
to pay such tax and any other
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taxes imposed on "prohibited transactions" under Section 860F(a)(i) of the Code
or imposed on "contributions after startup date" under Section 860G(d) of the
Code from amounts otherwise distributable to the Class C Certificateholders. The
Servicer shall give notice to the Trustee at the time of such repurchase of the
amounts due from the Originator pursuant to the guarantee of the Originator
described above and give notice as to who should receive such payment.
The Trustee shall have no obligation to pay any such amounts pursuant
to this Section other than from moneys provided to it by the Originator or from
moneys held in the funds and accounts created under this Agreement. The Trustee
shall be deemed conclusively to have complied with this Section if it follows
the directions of the Originator.
In the event any tax that is guaranteed by the Originator pursuant to
this Section 3.06 is refunded to the Trust or otherwise is determined not to be
payable, the Originator shall be repaid the amount of such refund or that
portion of any guarantee payment made by the Originator that is not applied to
the payment of such tax.
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ARTICLE IV
PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS
-----------------------------------------------------------
SECTION 4.01. Transfer of Loans.
a. On or prior to the Closing Date, or the Subsequent Transfer Date in
the case of Subsequent Loans, the Originator shall deliver the Loan Files to the
Trustee. The Trustee shall maintain the Loan Files at its office or with a duly
appointed Custodian, who shall act as the agent of the Trustee on behalf of the
Certificateholders. The Trustee may release a Loan File to the Servicer pursuant
to Section 5.07. The Originator has filed a form UCC-1 financing statement
regarding the sale of the Loans to the Seller, and shall file continuation
statements in respect of such UCC-1 financing statement as if such financing
statement were necessary to perfect the security interest granted pursuant to
Section 2.01. The Originator shall take any other actions necessary to maintain
the perfection of such security interest.
b. If at any time during the term of this Agreement the Originator does
not have a long-term senior debt rating of A- or higher from both S&P and Fitch
(if rated by Fitch), (i) the Originator shall within 30 days execute and deliver
to the Trustee (if it has not previously done so) endorsements of each Loan and
assignments in recordable form of each mortgage, deed of trust or security deed
securing a Loan, and (ii) the Trustee, at the Originator's expense, shall within
60 days file in the appropriate recording offices the assignments to the Trustee
on behalf of the Trust of each mortgage, deed of trust or security deed securing
a Loan; provided, however, that the recording of such assignments shall not be
required if the Trustee receives written confirmation from both S&P and Fitch
that the ratings of the Certificates would not be reduced or withdrawn by the
failure to execute and file such assignments; provided, however, that the
recording of such assignments shall not be required if the Originator delivers
an Opinion of Counsel to the effect that such assignment and recordation is not
necessary to effect the assignment to the Trustee of the Originator's lien on
the real property securing each Loan.
c. If, as of the Post-Funding Payment Date, the aggregate Scheduled
Principal Balance of Loans secured by real property located in Maryland
("Maryland Loans") exceeds 10% of the Pool Scheduled Principal Balance, the
Originator shall, within sixty (60) days, submit to the appropriate recording
offices the assignments to the Trustee on behalf of the Trust of the number of
mortgages, deeds of trust or security deeds required to reduce to less than 10%
of the Pool Scheduled Principal Balance the aggregate Scheduled Principal
Balance of Maryland Loans as to which such assignments are not recorded.
SECTION 4.02. Costs and Expenses. The Servicer agrees to pay all
reasonable costs and disbursements in connection with the vesting (including the
perfection and the maintenance of perfection, as against all third parties) in
the Trust of all right, title and interest in and to the Loans (including,
without limitation, the mortgage or deed of trust on the related real estate
granted thereby).
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ARTICLE V
SERVICING OF LOANS
------------------
SECTION 5.01. Responsibility for Loan Administration. The Servicer will
have the sole obligation to manage, administer, service and make collections on
the Loans and perform or cause to be performed all contractual and customary
undertakings of the holder of the Loans to the Obligor. Green Tree Financial
Corporation, if it is the Servicer, may delegate some or all of its servicing
duties to a wholly owned subsidiary of Green Tree Financial Corporation, for so
long as such subsidiary remains, directly or indirectly, a wholly owned
subsidiary of Green Tree Financial Corporation. Notwithstanding any such
delegation Green Tree Financial Corporation shall retain all of the rights and
obligations of the Servicer hereunder. The Trustee, at the request of a
Servicing Officer, shall furnish the Servicer with any powers of attorney or
other documents necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties hereunder. Green Tree Financial Corporation
is hereby appointed the Servicer until such time as any Service Transfer shall
be effected under Article VII.
The Servicer shall, with respect to each Loan which does not provide
for a fixed interest rate over the life of the Loan, make adjustments to the
interest rate and the payments due on such Loan in compliance with applicable
regulatory adjustable mortgage loan requirements and the terms of the Loan. The
Servicer shall establish procedures to monitor the interest rate adjustment
dates and the interest rate in order to assure that it correctly calculates any
applicable interest rate change, and it will comply with those procedures. The
Servicer shall execute and deliver all appropriate notices required by the
applicable adjustable mortgage loan laws and regulations and the Loans regarding
such interest rate adjustments and payment adjustments.
SECTION 5.02. Standard of Care. In managing, administering, servicing
and making collections on the Loans pursuant to this Agreement, the Servicer
will exercise that degree of skill and care consistent with the highest degree
of skill and care that the Servicer exercises with respect to similar loans
(including manufactured housing contracts) serviced by the Servicer; provided,
however, that such degree of skill and care shall be at least as favorable as
the degree of skill and care generally applied by prudent servicers of home
equity loans for prudent institutional investors.
SECTION 5.03. Records. The Servicer shall, during the period it is
servicer hereunder, maintain such books of account and other records as will
enable the Trustee to determine the status of each Loan.
SECTION 5.04. Inspection.
a. At all times during the term hereof, the Servicer shall afford the
Trustee and its authorized agents reasonable access during normal business hours
to the Servicer's records relating to the Loans, which have not previously been
provided to the Trust, and will cause its
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personnel to assist in any examination of such records by the Trustee. The
examination referred to in this Section will be conducted in a manner which does
not unreasonably interfere with the Servicer's normal operations or customer or
employee relations. Without otherwise limiting the scope of the examination the
Trustee may make, the Trustee may, using generally accepted audit procedures,
verify the status of each Loan and review the Electronic Ledger and records
relating thereto for conformity to Monthly Reports prepared pursuant to Article
VI and compliance with the standards represented to exist as to each Loan in
this Agreement.
b. At all times during the term hereof, the Servicer shall keep
available a copy of the List of Loans at its principal executive office for
inspection by Certificateholders.
c. A Certificateholder holding Certificates representing in the
aggregate at least 5% of the Aggregate Certificate Principal Balance shall have
the rights of inspection afforded to the Trustee pursuant to this Section 5.04.
SECTION 5.05. Certificate Account.
a. On or before the Closing Date, the Servicer shall establish the
Certificate Account on behalf of the Trust, which shall be an Eligible Account.
The Servicer shall pay into the Certificate Account, as promptly as practicable
(but not later than the next Business Day) following receipt thereof, all
amounts received with respect to the Loans, other than extension fees and
assumption fees, which fees shall be retained by the Servicer as compensation
for servicing the Loans, and other than Liquidation Expenses permitted by
Section 5.08. The Trustee shall hold all amounts paid into the Certificate
Account under this Agreement in trust for the Trustee, the Certificateholders
and the Class C Certificateholders until payment of any such amounts is
authorized under this Agreement. Only the Trustee may withdraw funds from the
Certificate Account.
b. If the Servicer so directs, the institution maintaining the
Certificate Account shall, in the name of the Trustee in its capacity as such,
invest the amounts in the Certificate Account in Eligible Investments that
mature not later than one Business Day prior to the next succeeding Payment
Date. Any investment of funds in the Certificate Account shall be made in
Eligible Investments held by a financial institution in accordance with the
following requirements: (1) all Eligible Investments shall be held in an account
with such financial institution in the name of the Trustee, and the agreement
governing such account shall be governed by the laws of the State of Minnesota,
(2) with respect to securities held in such account, such securities shall be
(i) certificated securities (as such term is used in N.Y. U.C.C. ss.
8-102(4)(i)), securities deemed to be certificated securities under applicable
regulations of the United States government, or uncertificated securities issued
by an issuer organized under the laws of the State of New York or the State of
Delaware, (ii) either (A) in the possession of such institution, (B) in the
possession of a clearing corporation (as such term is used in Minn. Stat. ss.
8-102(5)) in the State of New York, registered in the name of such clearing
corporation or its nominee, not endorsed for collection or surrender or any
other purpose not involving transfer, not containing any evidence of a right or
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interest inconsistent with the Trustee's security interest therein, and held by
such clearing corporation in an account of such institution, (C) held in an
account of such institution with the Federal Reserve Bank of New York or the
Federal Reserve Bank of Minneapolis, or (D) in the case of uncertificated
securities, issued in the name of such institution, and (iii) identified, by
book entry or otherwise, as held for the account of, or pledged to, the Trustee
on the records of such institution, and such institution shall have sent the
Trustee a confirmation thereof, and (3) with respect to repurchase obligations
held in such account, such repurchase obligations shall be identified by such
institution, by book entry or otherwise, as held for the account of, or pledged
to, the Trustee on the records of such institution, and the related securities
shall be held in accordance with the requirements of clause (2) above. Once such
funds are invested, such institution shall not change the investment of such
funds. All income and gain from such investments shall be added to the
Certificate Account and distributed on such Payment Date pursuant to Section
8.04(b). Losses, if any, realized on amounts in the Certificate Account invested
pursuant to this paragraph shall first be credited against undistributed
investment earnings on amounts in the Certificate Account invested pursuant to
this paragraph, and shall thereafter be deemed to reduce the amount on deposit
in the Certificate Account and otherwise available for distribution to
Certificateholders and the Class C Certificateholders pursuant to Section 8.01.
The Servicer and the Trustee shall in no way be liable for losses on amounts
invested in accordance with the provisions hereof. Funds in the Certificate
Account not so invested must be insured to the extent permitted by law by the
Federal Deposit Insurance Corporation. "Eligible Investments" are any of the
following:
(i) direct obligations of, and obligations fully guaranteed
by, the United States of America, or any agency or instrumentality of
the United States of America the obligations of which are backed by the
full faith and credit of the United States of America;
(ii) (A) demand and time deposits in, certificates of deposit
of, bankers' acceptances issued by, or federal funds sold by any
depository institution or trust company (including the Trustee or any
Affiliate of the Trustee, acting in its commercial capacity)
incorporated under the laws of the United States of America or any
state thereof and subject to supervision and examination by federal
and/or state authorities, so long as, at the time of such investment or
contractual commitment providing for such investment, the commercial
paper or other short-term debt obligations of such depository
institution or trust company are rated at least A-1+ by S&P and F-1+ by
Fitch (if rated by Fitch) and (B) any other demand or time deposit or
certificate of deposit which is fully insured by the Federal Deposit
Insurance Corporation;
(iii) shares of an investment company registered under the
Investment Company Act of 1940, whose shares are registered under the
Securities Act of 1933 and have a rating of AAA by both S&P and Fitch,
and whose only investments are in securities described in clauses (i)
and (ii) above;
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(iv) repurchase obligations with respect to (A) any security
described in clause (i) above or (B) any other security issued or
guaranteed by an agency or instrumentality of the United States of
America, in either case entered into with a depository institution or
trust company (acting as principal) described in clause (ii)(A) above;
(v) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States of
America or any State thereof which have a credit rating of at least AA
from both S&P and Fitch (if rated by Fitch) at the time of such
investment; provided, however, that securities issued by any particular
corporation will not be Eligible Investments to the extent that
investment therein will cause the then outstanding principal amount of
securities issued by such corporation and held as part of the corpus of
the Trust to exceed 10% of amounts held in the Certificate Account;
(vi) commercial paper having a rating of at least A-1+ from
S&P and at least F-1+ from Fitch (if rated by Fitch) at the time of
such investment; and
(vii) other obligations or securities that are acceptable to
both S&P and Fitch as an Eligible Investment hereunder and will not
reduce the rating assigned to any Class of Certificates by both S&P and
Fitch below the lower of the then-current rating or the rating assigned
to such Certificates as of the Closing Date by both S&P and Fitch, as
evidenced in writing;
provided that any such investment must constitute a "cash flow investment"
within the meaning of the REMIC Provisions.
The Trustee may trade with itself or an Affiliate in the purchase or
sale of such Eligible Investments.
c. If at any time the Trustee receives notice (from S&P, Fitch, the
Servicer or otherwise) that the Certificate Account has ceased to be an Eligible
Account, the Trustee shall, as soon as practicable but in no event later than
five Business Days of the Trustee's receipt of such notice, transfer the
Certificate Account and all funds and Eligible Investments therein to an
Eligible Account. Following any such transfer, the Trustee shall notify S&P,
Fitch and the Servicer of the location of the Certificate Account.
SECTION 5.06. Enforcement.
a. The Servicer shall, consistent with customary servicing procedures,
act with respect to the Loans in such manner as will maximize the receipt of
principal and interest on such Loans and Liquidation Proceeds with respect to
Liquidated Loans.
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b. In accordance with the standard of care specified in Section 5.02,
the Servicer may, in its own name, if possible, or as agent for the Trust,
commence proceedings for the foreclosure of any subject real estate, or may take
such other steps that in the Servicer's reasonable judgment will maximize
Liquidation Proceeds with respect to the Loan, including, for example, the sale
of the Loan to a third party for foreclosure or enforcement and, in the case of
any default on a related prior mortgage loan, the advancing of funds to correct
such default and the advancing of funds to pay off a related prior mortgage
loan, which advances are Liquidation Expenses that will be reimbursed to the
Servicer out of related Liquidation Proceeds before the related Net Liquidation
Proceeds are paid to Certificateholders and the Class C Certificateholders. The
Servicer shall also deposit in the Certificate Account any Net Liquidation
Proceeds received in connection with any Loan which became a Liquidated Loan in
a prior Due Period.
c. The Servicer may sue to enforce or collect upon Loans, in its own
name, if possible, or as agent for the Trust. If the Servicer elects to commence
a legal proceeding to enforce a Loan, the act of commencement shall be deemed to
be an automatic assignment of the Loan to the Servicer for purposes of
collection only. If, however, in any enforcement suit or legal proceeding it is
held that the Servicer may not enforce a Loan on the ground that it is not a
real party in interest or a holder entitled to enforce the Loan, the Trustee on
behalf of the Trust shall, at the Servicer's expense, take such steps as the
Servicer deems necessary to enforce the Loan, including bringing suit in its
name or the names of the Certificateholders and the Class C Certificateholders.
d. The Servicer may grant to the Obligor on any Loan any rebate, refund
or adjustment out of the Certificate Account that the Servicer in good faith
believes is required because of the Principal Prepayment in Full of the Loan.
The Servicer will not permit any rescission or cancellation of any Loan.
e. The Servicer shall enforce any due-on-sale clause in a Loan if such
enforcement is called for under its then current servicing policies for
obligations similar to the Loans, provided that such enforcement is permitted by
applicable law and will not adversely affect any applicable insurance policy. If
an assumption of a Loan is permitted by the Servicer, upon conveyance of the
related property the Servicer shall use its best efforts to obtain an assumption
agreement in connection therewith.
f. Any provision of this Agreement to the contrary notwithstanding, the
Servicer shall not agree to the modification or waiver of any provision of a
Loan at a time when such Loan is not in default or such default is not
reasonably foreseeable, if such modification or waiver would both (i) be treated
as a taxable exchange under Section 1001 of the Code or any proposed, temporary
or final Treasury Regulations promulgated thereunder and (ii) cause the Trust to
fail to qualify as a REMIC or cause the imposition of any tax on "prohibited
transactions" or "contributions after the startup date" under the REMIC
Provisions.
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SECTION 5.07. Trustee to Cooperate.
a. Upon payment in full on any Loan, the Servicer will notify the
Trustee and Green Tree Financial Corporation (if Green Tree Financial
Corporation is not the Servicer) on the next succeeding Payment Date by
certification of a Servicing Officer (which certification shall include a
statement to the effect that all amounts received in connection with such
payments which are required to be deposited in the Certificate Account pursuant
to Section 5.05 have been so deposited) and shall request delivery of the Loan
and Loan File to the Servicer. Upon receipt of such delivery and request, the
Trustee shall promptly release or cause to be released such Loan and Loan File
to the Servicer. Upon receipt of such Loan and Loan File, each of Green Tree
Financial Corporation (if different from the Servicer) and the Servicer is
authorized to execute an instrument in satisfaction of such Loan and to do such
other acts and execute such other documents as the Servicer deems necessary to
discharge the Obligor thereunder and eliminate any lien on the related real
estate. The Servicer shall determine when a Loan has been paid in full; provided
that, to the extent that insufficient payments are received on a Loan credited
by the Servicer as prepaid or paid in full and satisfied, the shortfall shall be
paid by the Servicer out of its own funds, without any right of reimbursement
therefor (except from additional amounts recovered from the related Obligor or
otherwise in respect of such Loan), and deposited in the Certificate Account.
b. From time to time as appropriate for servicing and foreclosing in
connection with a Loan, the Trustee shall, upon written request of a Servicing
Officer and delivery to the Trustee of a receipt signed by such Servicing
Officer, cause the original Loan and the related Loan File to be released to the
Servicer and shall execute such documents as the Servicer shall deem necessary
to the prosecution of any such proceedings. The Trustee shall stamp the face of
each such Loan to be released to the Servicer with a notation that the Loan has
been assigned to the Trustee. Upon request of a Servicing Officer, the Trustee
shall perform such other acts as reasonably requested by the Servicer and
otherwise cooperate with the Servicer in enforcement of the Certificateholders'
and Class C Certificateholders' rights and remedies with respect to Loans.
c. The Servicer's receipt of a Loan and/or Loan File shall obligate the
Servicer to return the original Loan and the related Loan File to the Trustee
when its need by the Servicer has ceased unless the Loan shall be liquidated or
repurchased or replaced as described in Section 3.05 or 8.06.
SECTION 5.08. Costs and Expenses. Except as provided in Section 8.04(b)
for the reimbursement of Advances, all costs and expenses incurred by the
Servicer in carrying out its duties hereunder (including payment of the
Trustee's fees pursuant to Section 11.06, fees and expenses of accountants and
payments of all fees and expenses incurred in connection with the enforcement of
Loans (including enforcement of Loans and foreclosures upon real estate securing
any such Loans) and all other fees and expenses not expressly stated hereunder
to be for the account of the Trust) shall be paid by the Servicer and the
Servicer shall not be entitled to reimbursement hereunder, except that the
Servicer shall be reimbursed out of the Liquidation
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Proceeds of a Liquidated Loan for customary out-of-pocket Liquidation Expenses
incurred by it. The Servicer shall not incur such Liquidation Expenses unless it
determines in its good faith business judgment that incurring such expenses will
increase the Net Liquidation Proceeds on the related Loan.
If the Servicer fails to make a timely interest rate or monthly payment
adjustment on a Loan which does not provide for a fixed interest rate over the
life of the Loan, the Servicer shall use its own funds to satisfy any shortage
in the Obligor's remittance so long as such shortage shall continue; any such
amount paid by the Servicer shall be reimbursable to it from any subsequent
amounts collected on account of the related Loan with respect to such
adjustments.
SECTION 5.09. Maintenance of Insurance. The Servicer shall at all times
keep in force a policy or policies of insurance covering errors and omissions
for failure to maintain insurance as required by this Agreement, and a fidelity
bond. Such policy or policies and such fidelity bond shall be in such form and
amount as is generally customary among persons who service a portfolio of home
equity loans having an aggregate principal amount of $10,000,000 or more, and
which are generally regarded as servicers acceptable to institutional investors.
The Servicer shall cause to be maintained with respect to the real property
securing a Loan hazard insurance (excluding flood insurance coverage) if such
Loan is secured by a first priority mortgage, deed of trust or security deed or
the initial principal balance of such Loan exceeds $30,000.
SECTION 5.10. Merger or Consolidation of Servicer. Any Person into
which the Servicer 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 Servicer shall be a party shall be the successor of
the Servicer hereunder, provided such Person shall be an Eligible Servicer,
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. The
Servicer shall promptly notify S&P and Fitch in the event it is a party to any
merger, conversion or consolidation.
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ARTICLE VI
REPORTS AND TAX MATTERS
-----------------------
SECTION 6.01. Monthly Reports. No later than one Business Day following
each Determination Date, the Servicer shall deliver to the Trustee, S&P and
Fitch a Monthly Report, substantially in the form of Exhibit M hereto.
SECTION 6.02. Officer's Certificate. Each Monthly Report pursuant to
Section 6.01 shall be accompanied by a certificate of a Servicing Officer
substantially in the form of Exhibit H, certifying the accuracy of the Monthly
Report and that no Event of Termination or event that with notice or lapse of
time or both would become an Event of Termination has occurred, or if such event
has occurred and is continuing, specifying the event and its status.
SECTION 6.03. Other Data. In addition, the Originator and (if different
from the Originator) the Servicer shall, on request of the Trustee, S&P or
Fitch, furnish the Trustee, S&P and/or Fitch such underlying data as may be
reasonably requested.
SECTION 6.04. Annual Report of Accountants. On or before May 1 of each
year, commencing May 1, 2000, the Servicer at its expense shall cause a firm of
independent public accountants which is a member of the American Institute of
Certified Public Accountants to issue to the Servicer a report that such firm
has examined selected documents, records and management's assertions relating to
loans serviced by the Servicer and stating that, on the basis of such
examination, such servicing has been conducted in compliance with the minimum
servicing standards identified in the Mortgage Bankers Association of America's
Uniform Single Attestation Program for Mortgage Bankers, or any successor
uniform program, except for such significant exceptions or errors in records
that, in the opinion of such firm, generally accepted attestation standards
requires it to report.
SECTION 6.05. Statements to Certificateholders and the Class C
Certificateholders.
a. The Servicer shall prepare and furnish to the Trustee the statements
specified below relating to the Class A Certificates, the Class M Certificates
and the Class B Certificates on or before the third Business Day next preceding
each Payment Date.
b. Concurrently with each distribution to Certificateholders, the
Trustee shall, so long as it has received the Monthly Report from the Servicer,
forward or cause to be forwarded by mail to each Holder of a Class A Certificate
and (if the Originator is not the Servicer) the Originator a statement setting
forth the following:
(i) the amount of such distribution to Holders of each Class
of Class A Certificates allocable to interest, separately identifying
any Unpaid Class A Interest
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Shortfall included in such distribution and any remaining Unpaid Class
A Interest Shortfall after giving effect to such distribution;
(ii) the amount of such distribution to Holders of each Class
of Class A Certificates allocable to principal, separately identifying
the aggregate amount of any Principal Prepayments included therein;
(iii) the amount, if any, by which the Class A Formula
Distribution Amount for such Payment Date exceeds the Class A
Distribution Amount for such Payment Date;
(iv) the Class A-1A ARM Principal Balance, the Class A-1B ARM
Principal Balance, the Class A-1 Principal Balance, the Class A-2
Principal Balance, the Class A-3 Principal Balance, the Class A-3A
Principal Balance and the Class A-4 IO Notional Principal Amount after
giving effect to the distribution of principal on such Payment Date;
(v) the Pool Scheduled Principal Balance, and of that amount
the aggregate Scheduled Principal Balance of the Group I Adjustable
Rate Loans, the Group II Adjustable Rate Loans, the Group I Fixed Rate
Loans and the Group II Fixed Rate Loans, for such Payment Date;
(vi) the Senior Percentage for such Payment Date;
(vii) the Pool Factor;
(viii) the number and aggregate principal balances of Loans,
identifying separately the Group I Adjustable Rate Loans, the Group II
Adjustable Rate Loans, the Group I Fixed Rate Loans and the Group II
Fixed Rate Loans, delinquent (a) 30-59 days and (b) 60 or more days;
(ix) the Class B Principal Balance Test (as set forth in
Exhibit M hereto);
(x) the Class B Principal Distribution Test (as set forth in
Exhibit M hereto);
(xi) the number of Liquidated Loans, identifying such Loans
(including those which are Group I Adjustable Rate Loans, Group II
Adjustable Rate Loans, the Group I Fixed Rate Loans and the Group II
Fixed Rate Loans) and the Net Liquidation Loss on such Loans; and
(xii) the Pre-Funded Group I ARM Amount, the Pre-Funded Group
II ARM Amount and the Pre-Funded Group I Fixed Rate Amount for such
Payment Date.
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The Trustee and the Servicer shall, if any Certificateholder, Class C
Certificateholder or Underwriter inquires by telephone, provide the information
contained in the most recent Monthly Report.
In the case of information furnished pursuant to clauses (i) through
(iv) above, the amounts shall be expressed as a dollar amount per Class A
Certificate with a 1% Percentage Interest or per $1,000 denomination of Class A
Certificate.
Within 75 days after the end of each calendar year, the Certificate
Registrar shall furnish or cause to be furnished to each Person who at any time
during the calendar year was the Holder of a Class A Certificate a statement
containing the information with respect to interest accrued and principal paid
on its Class A Certificates during such calendar year. Such obligation of the
Certificate Registrar shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Certificate
Registrar pursuant to any requirements of the Code as from time to time in
force.
c. On each Payment Date, the Trustee shall forward or cause to be
forwarded by mail to each Holder of a Class M-1 Certificate a copy of the
monthly statement forwarded to the Holders of Class A Certificates on such
Payment Date. The Servicer shall also furnish to the Trustee, which shall
forward such information to the Class M-1 Certificateholders as part of their
monthly statement, the following information:
(i) the amount of such distribution to Holders of Class M-1
Certificates allocable to interest, separately identifying any Unpaid
Class M-1 Interest Shortfall included in such distribution and any
remaining Unpaid Class M-1 Interest Shortfall after giving effect to
such distribution;
(ii) the amount of such distribution to Holders of Class M-1
Certificates allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments included therein;
(iii) the amount, if any, by which the Class M-1 Formula
Distribution Amount for such Payment Date exceeds the Class M-1
Distribution Amount for such Payment Date;
(iv) the Class M-1 Principal Balance after giving effect to
the distribution of principal on such Payment Date;
(v) the Unpaid Class M-1 Liquidation Loss Interest Shortfall
after giving effect to any distribution on such Payment Date pursuant
to Section 8.04(b)(10); and
(vi) the information set forth in clauses (v) through (xii) of
Section 6.05(c).
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In the case of the information in clauses (i) through (v) above, the
amounts shall be expressed as a dollar amount per Class M-1 Certificate with a
1% Percentage Interest or per $1,000 denomination of Class M-1 Certificate.
Within 75 days after the end of each calendar year, the Certificate
Registrar shall furnish or cause to be furnished to each Person who at any time
during the calendar year was the Holder of a Class M-1 Certificate a statement
containing the applicable distribution information provided pursuant to this
Section aggregated for such calendar year or applicable portion thereof during
which such Person was the Holder of a Class M-1 Certificate. Such obligation of
the Certificate Registrar shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Certificate
Registrar pursuant to any requirements of the Code as from time to time in
force.
d. On each Payment Date, the Trustee shall forward or cause to be
forwarded by mail to each Holder of a Class M-2 Certificate a copy of the
monthly statements forwarded to the Holders of Class A and Class M-1
Certificates on such Payment Date. The Servicer shall also furnish to the
Trustee, which shall forward such information to the Class M-2
Certificateholders as part of their monthly statement, the following
information:
(i) the amount of such distribution to Holders of Class M-2
Certificates allocable to interest, separately identifying any Unpaid
Class M-2 Interest Shortfall included in such distribution and any
remaining Unpaid Class M-2 Interest Shortfall after giving effect to
such distribution;
(ii) the amount of such distribution to Holders of Class M-2
Certificates allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments included therein;
(iii) the amount, if any, by which the Class M-2 Formula
Distribution Amount for such Payment Date exceeds the Class M-2
Distribution Amount for such Payment Date;
(iv) the Class M-2 Principal Balance after giving effect to
the distribution of principal on such Payment Date;
(v) the Unpaid Class M-2 Liquidation Loss Interest Shortfall,
after giving effect to any distribution on such Payment Date pursuant
to Section 8.04(b)(11); and
(vi) the information set forth in clauses (v) through (xii) of
Section 6.05(c).
In the case of the information in clauses (i) through (v) above, the
amounts shall be expressed as a dollar amount per Class M-2 Certificate with a
1% Percentage Interest or per $1,000 denomination of Class M-2 Certificate.
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Within 75 days after the end of each calendar year, the Certificate
Registrar shall furnish or cause to be furnished to each Person who at any time
during the calendar year was the Holder of a Class M-2 Certificate a statement
containing the applicable distribution information provided pursuant to this
Section aggregated for such calendar year or applicable portion thereof during
which such Person was the Holder of a Class M-2 Certificate. Such obligation of
the Certificate Registrar shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Certificate
Registrar pursuant to any requirements of the Code as from time to time in
force.
e. On each Payment Date, the Trustee shall forward or cause to be
forwarded by mail to each Holder of a Class B-1 Certificate a copy of the
monthly statements forwarded to the Holders of Class A and Class M Certificates
on such Payment Date. The Servicer shall also furnish to the Trustee, which
shall forward such information to the Class B-1 Certificateholders as part of
their monthly statement, the following information:
(i) the amount of such distribution to Holders of Class B-1
Certificates allocable to interest, separately identifying any Unpaid
Class B-1 Interest Shortfall included in such distribution and any
remaining Unpaid Class B-1 Interest Shortfall after giving effect to
such distribution;
(ii) the amount of such distribution to Holders of Class B-1
Certificates allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments included therein;
(iii) the amount, if any, by which the Class B-1 Formula
Distribution Amount for such Payment Date exceeds the Class B-1
Distribution Amount for such Payment Date;
(iv) the Class B-1 Principal Balance after giving effect to
the distribution of principal on such Payment Date;
(v) the Unpaid Class B-1 Liquidation Loss Interest Shortfall,
after giving effect to any distribution on such Payment Date pursuant
to Section 8.04(b)(12);
(vi) the Class B Percentage for such Payment Date; and
(vii) the information set forth in clauses (v) through (xii)
of Section 6.05(c).
In the case of the information in clauses (i) through (v) above, the
amounts shall be expressed as a dollar amount per Class B-1 Certificate with a
1% Percentage Interest or per $1,000 denomination of Class B-1 Certificate.
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<PAGE>
Within 75 days after the end of each calendar year, the Certificate
Registrar shall furnish or cause to be furnished to each Person who at any time
during the calendar year was the Holder of a Class B-1 Certificate a statement
containing the applicable distribution information provided pursuant to this
Section aggregated for such calendar year or applicable portion thereof during
which such Person was the Holder of a Class B-1 Certificate. Such obligation of
the Certificate Registrar shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Certificate
Registrar pursuant to any requirements of the Code as from time to time in
force.
f. On each Payment Date, the Trustee shall forward or cause to be
forwarded by mail to each Holder of a Class B-2 Certificate a copy of the
monthly statements forwarded to the Holders of Class A, Class M and Class B-1
Certificates on such Payment Date. The Servicer shall also furnish to the
Trustee, which shall forward such information to the Class B-2
Certificateholders as part of their monthly statement, the following
information:
(i) the amount of such distribution to Holders of Class B-2
Certificates allocable to interest, separately identifying any Unpaid
Class B-2 Interest Shortfall included in such distribution and any
remaining Unpaid Class B-2 Interest Shortfall after giving effect to
such distribution;
(ii) the amount of such distribution to Holders of Class B-2
Certificates allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments included therein;
(iii) the amount, if any, by which the sum of the Class B-2
Formula Distribution Amount and the Class B-2 Liquidation Loss
Principal Amount, if any, for such Payment Date exceeds the Class B-2
Distribution Amount for such Payment Date;
(iv) the Class B-2 Principal Balance after giving effect to
the distribution of principal on such Payment Date;
(v) the Class B Percentage for such Payment Date; and
(vi) the information set forth in clauses (v) through (xii) of
Section 6.05(c).
In the case of the information in clauses (i) through (iv) above, the
amounts shall be expressed as a dollar amount per Class B-2 Certificate with a
1% Percentage Interest or per $1,000 denomination of Class B-2 Certificate.
Within 75 days after the end of each calendar year, the Certificate
Registrar shall furnish or cause to be furnished to each Person who at any time
during the calendar year was the Holder of a Class B-2 Certificate a statement
containing the applicable distribution information provided pursuant to this
Section aggregated for such calendar year or applicable portion thereof during
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which such Person was the Holder of a Class B-2 Certificate. Such obligation of
the Certificate Registrar shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Certificate
Registrar pursuant to any requirements of the Code as from time to time in
force.
g. Copies of all reports and statements provided to the Trustee for the
Certificateholders shall also be provided to S&P, Fitch and the Class C
Certificateholders.
SECTION 6.06. Payment of Taxes. The Servicer shall be responsible for
and agrees to prepare, make and timely file all federal, state, local or other
tax returns, information statements and other returns and documents of every
kind and nature whatsoever required to be made or filed by or on behalf of the
Trust pursuant to the Code and other applicable tax laws and regulations. Each
such return, statement and document shall, to the extent required by the Code or
other applicable law and at the request of the Servicer, be signed on behalf of
the Trust by the Trustee. The Trustee shall have no responsibility whatsoever
for the accuracy or completeness of any such return, statement or document. The
Servicer agrees to indemnify the Trustee and hold it harmless for, from, against
and in respect to any and all liability, loss, damage and expense which may be
incurred by the Trustee based upon or as a result of the Trustee's execution of
any and all such tax returns, statements and documents. The Servicer, if and for
so long as it is a Class C Certificateholder, shall be designated the "tax
matters person" on behalf of the Trust in the same manner as a partnership may
designate a "tax matters partner," as such term is defined in Section 6231(a)(7)
of the Code. To the extent permitted by the REMIC Provisions, any subsequent
holder of the Class C Certificate, by acceptance thereof, irrevocably designates
and appoints the Servicer as its agent to perform the responsibilities of the
"tax matters person" on behalf of the Trust if, and during such time as, the
Servicer is not the holder of the Class C Certificates. The Servicer may, at its
expense, retain such outside assistance as it deems necessary in the performance
of its obligations under this paragraph. The Servicer shall provide to the
Internal Revenue Service the name, title, address and telephone number of the
person who will serve as the representative of the REMIC.
Each of the Holders of the Certificates or the Class C Certificates, by
acceptance thereof, agrees to file tax returns consistent with and in accordance
with any elections, decisions or other reports made or filed with regard to
federal, state or local taxes on behalf of the Trust. The Servicer, as tax
matters person or as agent for the tax matters person, shall represent the Trust
in connection with all examinations of the Trust's affairs by tax authorities,
including resulting administrative and judicial proceedings. Each of the Holders
of the Certificates and Class C Certificates, by acceptance thereof, agrees to
cooperate with the Servicer in such matters and to do or refrain from doing any
or all things reasonably required by the Servicer to conduct such proceedings,
provided that no such action shall be required by the Servicer of any
Certificateholder that would entail unnecessary or unreasonable expenses for
such Certificateholder in the performance of such action.
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The Class C Master Certificateholders and Class C Subsidiary
Certificateholders shall pay, on behalf of the Trust, any foreign, federal,
state or local income, property, excise, sales, receipts or any other similar or
related taxes or charges which may be imposed upon the Master REMIC or
Subsidiary REMIC, respectively, as a REMIC or otherwise and shall, to the extent
provided in Section 10.06, be entitled to be reimbursed out of the Certificate
Account or, if such tax or charge results from a failure by the Trustee, the
Originator or any Servicer to comply with the provisions of Section 2.04 or
3.07, or a failure by any Servicer to comply with the provisions of this Section
6.06, the Trustee, the Originator or such Servicer, as the case may be, shall
indemnify the Class C Certificateholders for the payment of any such tax or
charge. The Trustee shall be entitled to withhold from amounts otherwise
distributable to the Class C Certificateholders any taxes or charges payable by
the Class C Certificateholders hereunder.
In the event a Class C Certificate is transferred to a "disqualified
organization," within the meaning of Section 860E(e)(5) of the Code, pursuant to
Section 860D(a)(6)(B) of the Code the Originator shall provide to the Internal
Revenue Service and the persons specified in Sections 860(E)(e)(5) and (6) of
the Code all information necessary for the application of Section 860E(e) and
any other applicable provision of the Code with respect to the transfer of the
Class C Certificate to such disqualified organization including, without
limitation, a computation showing the present value of the total anticipated
excess inclusions with respect to such Class C Certificate for periods after the
transfer as defined in the REMIC Provisions. In addition, to the extent required
by the REMIC Provisions, the Originator shall, upon the written request of
persons designated in Section 860E(e)(5) of the Code, furnish to such requesting
party and the Internal Revenue Service information sufficient to compute the
present value of anticipated excess inclusions within 60 days of the receipt of
such written request.
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ARTICLE VII
SERVICE TRANSFER
----------------
SECTION 7.01. Events of Termination. "Event of Termination" means the
occurrence of any of the following:
a. Any failure by the Servicer to make any payment or deposit
required to be made hereunder (including an Advance) and the
continuance of such failure for a period of four Business Days;
b. Failure on the Servicer's part to observe or perform in any
material respect any covenant or agreement in this Agreement (other
than a covenant or agreement which is elsewhere in this Section
specifically dealt with) which continues unremedied for 30 days;
c. Any assignment by the Servicer of its duties or rights
hereunder except as specifically permitted hereunder, or any attempt to
make such an assignment;
d. A court having jurisdiction in the premises shall have
entered a decree or order for relief in respect of the Servicer in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Servicer, as the case may be, or for any substantial
liquidation of its affairs;
e. The Servicer shall have commenced a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall have consented to the entry of an order
for relief in an involuntary case under any such law, or shall have
consented to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian or sequestrator (or other
similar official) of the Servicer or for any substantial part of its
property, or shall have made any general assignment for the benefit of
its creditors, or shall have failed to, or admitted in writing its
inability to, pay its debts as they become due, or shall have taken any
corporate action in furtherance of the foregoing;
f. The failure of the Servicer to be an Eligible Servicer; or
g. If Green Tree Financial Corporation is the Servicer, Green
Tree Financial Corporation's servicing rights under its master
seller-servicer agreement with GNMA are terminated by GNMA.
SECTION 7.02. Transfer. If an Event of Termination has occurred and is
continuing, either the Trustee or Certificateholders, in the aggregate,
representing 25% or more of the
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Aggregate Certificate Principal Balance, by notice in writing to the Servicer
(and to the Trustee if given by the Certificateholders) may terminate all (but
not less than all) of the Servicer's management, administrative, servicing and
collection functions (such termination being herein called a "Service
Transfer"). On receipt of such notice (or, if later, on a date designated
therein), all authority and power of the Servicer under this Agreement, whether
with respect to the Loans, the Loan Files or otherwise (except with respect to
the Certificate Account, the transfer of which shall be governed by Section
7.06), shall pass to and be vested in the Trustee pursuant to and under this
Section 7.02; and, without limitation, the Trustee is authorized and empowered
to execute and deliver on behalf of the Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do any and all
acts or things necessary or appropriate to effect the purposes of such notice of
termination. The Trustee shall cause all assignments of mortgages, deeds of
trust or security deeds securing the Loans to be duly recorded. Each of the
Originator and the Servicer agrees to cooperate with the Trustee in effecting
the termination of the responsibilities and rights of the Servicer hereunder,
including, without limitation, the transfer to the Trustee for administration by
it of all cash amounts which shall at the time be held by the Servicer for
deposit, or have been deposited by the Servicer, in the Certificate Account, or
for its own account in connection with its services hereafter or thereafter
received with respect to the Loans. The Servicer shall transfer to the new
servicer (i) the Servicer's records relating to the Loans in such electronic
form as the new servicer may reasonably request and (ii) any Loan Files in the
Servicer's possession.
SECTION 7.03. Trustee to Act; Appointment of Successor. On and after
the time the Servicer receives a notice of termination pursuant to Section 7.02,
the Trustee shall be the successor in all respects to the Servicer in its
capacity as servicer under this Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
hereof, and the Servicer shall be relieved of such responsibilities, duties and
liabilities arising after such Service Transfer; provided, however, that (i) the
Trustee will not assume any obligations of the Originator pursuant to Section
3.06, and (ii) the Trustee shall not be liable for any acts or omissions of the
Servicer occurring prior to such Service Transfer or for any breach by the
Servicer of any of its obligations contained herein or in any related document
or agreement. As compensation therefor, the Trustee shall be entitled to receive
reasonable compensation out of the Monthly Servicing Fee. Notwithstanding the
above, the Trustee may, if it shall be unwilling so to act, or shall, if it is
legally unable so to act, appoint, or petition a court of competent jurisdiction
to appoint, an Eligible Servicer as the successor to the Servicer hereunder in
the assumption of all or any part of the responsibilities, duties or liabilities
of the Servicer hereunder. Pending appointment of a successor to the Servicer
hereunder, unless the Trustee is prohibited by law from so acting, the Trustee
shall act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Loans as it and such successor
shall agree; provided, however, that no such monthly compensation shall, without
the written consent of 100% of the Certificateholders, exceed the Monthly
Servicing Fee. The Trustee and such
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successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
SECTION 7.04. Notification to Certificateholders and Class C
Certificateholders.
a. Promptly following the occurrence of any Event of Termination, the
Servicer shall give written notice thereof to the Trustee, to S&P, to Fitch, to
the Certificateholders and to the Class C Certificateholders at their respective
addresses appearing on the Certificate Register.
b. Within 10 days following any termination or appointment of a
successor to the Servicer pursuant to this Article VII, the Trustee shall give
written notice thereof to S&P, to Fitch, to the Certificateholders and to the
Class C Certificateholders at their respective addresses appearing on the
Certificate Register.
SECTION 7.05. Effect of Transfer.
a. After the Service Transfer, the Trustee or new Servicer shall notify
Obligors to make payments directly to the new Servicer that are due under the
Loans after the effective date of the Service Transfer.
b. After the Service Transfer, the replaced Servicer shall have no
further obligations with respect to the management, administration, servicing or
collection of the Loans and the new Servicer shall have all of such obligations,
except that the replaced Servicer will transmit or cause to be transmitted
directly to the new Servicer for its own account, promptly on receipt and in the
same form in which received, any amounts (properly endorsed where required for
the new Servicer to collect them) received as payments upon or otherwise in
connection with the Loans.
c. A Service Transfer shall not affect the rights and duties of the
parties hereunder (including but not limited to the indemnities of the Servicer
and the Originator pursuant to Article X and Sections 3.07, 11.06 and 11.12(f))
other than those relating to the management, administration, servicing or
collection of the Loans after the Service Transfer.
SECTION 7.06. Transfer of Certificate Account. Notwithstanding the
provisions of Section 7.02, if the Certificate Account shall be maintained with
the Servicer and an Event of Termination shall occur and be continuing, the
Servicer shall, after five days' written notice from the Trustee, or in any
event within ten days after the occurrence of the Event of Termination,
establish a new account or accounts in trust for the Certificateholders and the
Class C Certificateholders conforming with the requirements of this Agreement at
the corporate trust department of the Trustee or with an institution other than
the Servicer and promptly cause the Trustee to transfer all funds in the
Certificate Account to such new account, which shall thereafter be deemed the
Certificate Account for the purposes hereof.
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ARTICLE VIII
PAYMENTS
--------
SECTION 8.01. Monthly Payments.
a. Subject to the terms of this Article VIII, each Holder of a
Certificate or Class C Certificate as of a Record Date shall be paid on the next
succeeding Payment Date by check mailed to such Certificateholder or Class C
Certificateholder at the address for such Certificateholder or Class C
Certificateholder appearing on the Certificate Register (or, if such
Certificateholder holds Certificates of a Class with an aggregate Percentage
Interest of at least 5% of such Class and so requests, by wire transfer pursuant
to instructions delivered to the Trustee at least 10 days prior to such Payment
Date), the sum equal to such Certificateholder's or Class C Certificateholder's
Percentage Interest of the Class A-1A ARM Distribution Amount, the Class A-1B
ARM Distribution Amount, the Class A-1 Distribution Amount, the Class A-2
Distribution Amount, the Class A-3 Distribution Amount, the Class A-3A
Distribution Amount, the Class A-4 IO Distribution Amount, the Class M-1
Distribution Amount, the Class M-2 Distribution Amount, the Class B-1
Distribution Amount, the Class B-2 Distribution Amount, any Class B-2 Guaranty
Payment or the Class C Master Distribution Amount, as applicable. Final payment
of any Certificate or a Class C Certificate shall be made only upon presentation
and surrender of such Certificate or Class C Certificate at the office or agency
of the Paying Agent.
b. Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, which shall credit the amount of such distribution to
the accounts of its Depository Participants in accordance with its normal
procedures. Each Depository Participant shall be responsible for disbursing such
distribution to the Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the Certificate Owners that it represents. All such credits
and disbursements with respect to a Book- Entry Certificate are to be made by
the Depository and the Depository Participants in accordance with the provisions
of the Book-Entry Certificates. Neither the Trustee, the Certificate Registrar,
the Seller nor the Originator shall have any responsibility therefor except as
otherwise provided by applicable law. To the extent applicable and not contrary
to the rules of the Depository, the Trustee shall comply with the provisions of
the form of the Certificates as set forth in Exhibits A through C hereto, and
the Class C Certificates as set forth in Exhibit I hereto.
c. The Trustee shall either act as the paying agent or appoint an
Eligible Institution to be the paying agent (in either such case, the "Paying
Agent") to make the payments to the Certificateholders and the Class C
Certificateholders required hereunder. The Trustee's corporate trust operations
department, with an office at 180 East Fifth Street, Third Floor, St. Paul,
Minnesota 55101, Attention: Tamara Schultz-Fugh, shall initially act as Paying
Agent. The Trustee shall require the Paying Agent (if other than the Trustee) to
agree in writing that all
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amounts held by the Paying Agent for payment hereunder will be held in trust for
the benefit of the Certificateholders and the Class C Certificateholders and
that it will notify the Trustee of any failure by the Servicer to make funds
available to the Paying Agent for the payment of amounts due on the Certificates
and the Class C Certificates.
SECTION 8.02. Advances.
a. Not later than one Business Day following the Determination Date,
the Servicer shall advance all Delinquent Payments for the immediately preceding
Due Period by depositing the aggregate amount of such Delinquent Payments in the
Certificate Account; provided, however, that the Servicer shall be obligated to
advance Delinquent Payments only to the extent that the Servicer, in its sole
discretion, expects to be able to recover such Advances from funds subsequently
available therefor in the Certificate Account in accordance with Section
8.04(b). If the Servicer fails to advance all Delinquent Payments required under
this Section 8.02, the Trustee shall be obligated to advance such Delinquent
Payments pursuant to Section 11.15.
b. The Servicer shall be entitled to reimbursement of an Advance from
subsequent funds available therefor in the Certificate Account in accordance
with Section 8.04(b).
SECTION 8.03. Class B-2 Limited Guaranty.
(i) No later than the Determination Date, the Servicer (if other than
the Guarantor) shall notify the Guarantor of the amount of the Class B-2
Guaranty Payment (if any) for the related Payment Date. Not later than the
Business Day preceding each Payment Date, the Guarantor shall deposit the Class
B-2 Guaranty Payment, if any, for such Payment Date into the Certificate
Account. Any Class B-2 Guaranty Payment shall be distributable to Class B-2
Certificateholders pursuant to Section 8.01.
(ii) The obligations of the Guarantor under this Section 8.03 shall not
terminate upon or otherwise be affected by a Service Transfer pursuant to
Article VII of this Agreement.
(iii) The obligation of the Guarantor to provide the Class B-2 Limited
Guaranty under this Agreement shall terminate on the Final Payment Date.
(iv) The obligation of the Guarantor to make the Class B-2 Guaranty
Payments described in subsection (i) above shall be unconditional and
irrevocable. The Guarantor acknowledges that its obligation to make the Class
B-2 Guaranty Payments described in subsection (i) above shall be deemed a
guaranty by the Guarantor of indebtedness of the Trust for money borrowed from
the Class B-2 Certificateholders.
(v) If the Guarantor fails to make a Class B-2 Guaranty Payment in
whole or in part, the Guarantor shall promptly notify the Trustee, and the
Trustee shall promptly notify S&P and Fitch.
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(vi) In consideration of providing the Class B-2 Limited Guaranty, the
Guarantor shall be entitled to the Class B-2 Guaranty Fee payable in accordance
with Section 8.04(b)(19).
SECTION 8.04. Permitted Withdrawals from the Certificate Account;
Payments.
a. The Trustee shall, from time to time as provided herein, make
withdrawals from the Certificate Account of amounts deposited in said account
pursuant to Section 5.05 that are attributable to the Loans for the following
purposes:
(i) to make payments in the amounts and in the manner provided
for in Section 8.04(b);
(ii) to pay to the Originator with respect to each Loan or
property acquired in respect thereof that has been repurchased or
replaced pursuant to Section 3.06, all amounts received thereon and not
required to be distributed to Certificateholders as of the date on
which the related Scheduled Principal Balance or Repurchase Price is
determined;
(iii) to reimburse the Servicer out of Liquidation Proceeds
for Liquidation Expenses incurred by it and not otherwise reimbursed,
to the extent such reimbursement is permitted pursuant to Section 5.08;
(iv) to withdraw any amount deposited in the Certificate
Account that was not required to be deposited therein; or
(v) to make any rebates or adjustments deemed necessary by the
Servicer pursuant to Section 5.06(d).
Since, in connection with withdrawals pursuant to clause (iii), the
Servicer's entitlement thereto is limited to collections or other recoveries on
the related Loan, the Servicer shall keep and maintain separate accounting, on a
Loan by Loan basis, for the purpose of justifying any withdrawal from the
Certificate Account pursuant to such clause.
b. On each Payment Date, the Trustee shall apply the Amount Available
for such Payment Date to make payment in the following order of priority,
subject to Section 8.04(c) and the last sentence of this Section 8.04(b):
(1) if neither Green Tree Financial Corporation nor a wholly
owned subsidiary of the Originator is the Servicer, to pay, with
respect to the Loans, the Monthly Servicing Fee and any other
compensation owed to the Servicer pursuant to Section 7.03;
(2) to pay the Class A Formula Interest Distribution Amount as
follows (and in the following order of priority):
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(i) the amount in clause (a)(1) of the definition of
Class A Formula Distribution Amount to the Class A-1A ARM
Certificateholders; the amount in clause (a)(2) of the
definition of Class A Formula Distribution Amount to the Class
A-1B ARM Certificateholders; the amount in clause (a)(3) of
the definition of Class A Formula Distribution Amount to the
Class A-1 Certificateholders; the amount in clause (a)(4) of
the definition of Class A Formula Distribution Amount to the
Class A-2 Certificateholders; the amount in clause (a)(5) of
the definition of Class A Formula Distribution Amount to the
Class A-3 Certificateholders; the amount in clause (a)(6) of
the definition of Class A Formula Distribution Amount to the
Class A-3A Certificateholders; and the amount in clause (a)(7)
of the definition of Class A Formula Distribution Amount to
the Class A-4 IO Certificateholders; or, if the Amount
Available is less than the amount necessary to pay all Class A
Formula Interest Distribution Amounts, (x) to the Class A-3A
Certificateholders to the extent of principal and interest
collections on the Group II Fixed Rate Loans, and (y) to the
other Class A Certificates to the extent of principal and
interest collections on all other Loans, and among such other
Class A Certificates, pro rata in accordance with their
respective entitlements to interest; and
(ii) to each Class of Class A Certificates the
amount, if any, of the Unpaid Class A Interest Shortfall of
such Class or, if the remaining Amount Available is less than
the amount necessary to pay all Unpaid Class A Interest
Shortfalls, pro rata to each Class of Class A Certificates
based on the Unpaid Class A Interest Shortfall of each such
Class;
(3) after payment of the amounts specified in clauses (1) and
(2) above, to the Class M-1 Certificateholders as follows (and in the
following order of priority):
(i) the amount in clause (a) of the definition of
Class M-1 Formula Distribution Amount; and
(ii) any Unpaid Class M-1 Interest Shortfall;
(4) after payment of the amounts specified in clauses (1)
through (3) above, to the Class M-2 Certificateholders as follows (and
in the following order of priority):
(i) the amount in clause (a) of the definition of
Class M-2 Formula Distribution Amount; and
(ii) any Unpaid Class M-2 Interest Shortfall;
(5) after payment of the amounts specified in clauses (1)
through (4) above, to the Class B-1 Certificateholders as follows (and
in the following order of priority):
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(i) the amount in clause (a) of the definition of
Class B-1 Formula Distribution Amount; and
(ii) any Unpaid Class B-1 Interest Shortfall;
(6) after payment of the amounts specified in clauses (1)
through (5) above, to pay principal in respect of the Class A
Certificates as follows:
(i) if there is a Class A Principal Deficiency Amount
for such Payment Date, the remaining Amount Available (x) to
the Class A-3A Certificateholders to the extent of principal
and interest collections on the Group II Fixed Rate Loans, and
(y) to the other Class A Certificates to the extent of
principal and interest collections on all other Loans, and
among such other Class A Certificates; and
(ii) if there is no Class A Principal Deficiency
Amount for such Payment Date, the remaining Amount Available
up to the Class A Formula Principal Distribution Amount as
follows:
(A) if the remaining Amount Available is
less than the Class A Formula Principal Distribution
Amount, then (x) to the Class A-3A Certificateholders
to the extent of principal and interest collections
on the Group II Fixed Rate Loans, and (y) to the
other Class A Certificates to the extent of principal
and interest collections on all other Loans, and
among such other Class A Certificates, pro rata to
each Class of Class A Certificates (other than the
Class A-3A and Class A-4 IO Certificates) based upon
the amounts that would have been distributed pursuant
to clause (B), below, had the remaining Amount
Available been equal to the Class A Formula Principal
Distribution Amount;
(B) if the remaining Amount Available is not
less than the Class A Formula Principal Distribution
Amount, then
(a) (i) to the Class A-1A ARM
Certificateholders, the Group I ARM Formula
Principal Distribution Amount, and (ii) to
the Class A-1B ARM Certificateholders, the
Group II ARM Formula Principal Distribution
Amount;
(b) to the Class A-3A Certificates,
the Group II Fixed Formula Principal
Distribution Amount;
(c) if such Payment Date is on or
prior to the Class A-1 Cross-over Date, to
the Class A-1 Certificateholders, the Senior
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Percentage of the Formula Principal
Distribution Amount, but in no event more
than is necessary to reduce the Class A-1
Principal Balance to zero;
(d) if such Payment Date is on or
after the Class A-1 Cross-over Date, but on
or prior to the Class A-2 Cross-over Date,
to the Class A-2 Certificateholders, the
Senior Percentage of the Formula Principal
Distribution Amount, and minus any amounts
paid to the Class A-1 Certificateholders on
such Payment Date pursuant to clause (c)
above, but in no event more than is
necessary to reduce the Class A-2 Principal
Balance to zero;
(e) if such Payment Date is on or
after the Class A-2 Cross-over Date, but on
or prior to the Class A-3 Cross-over Date,
to the Class A-3 Certificateholders, the
Senior Percentage of the Formula Principal
Distribution Amount and minus any amounts
paid to the Class A-1 and Class A-2
Certificateholders on such Payment Date
pursuant to clauses (c) and (d) above, but
in no event more than is necessary to reduce
the Class A-3 Principal Balance to zero;
(f) if such Payment Date is on or
after the Payment Date on which the Class
A-1, A-2 and A-3 Certificates have been paid
in full to the Class A-1A ARM
Certificateholder, a pro rata portion (based
on the Class A-1A ARM Principal Balance as a
percentage of the sum of the Class A-1A ARM
Principal Balance and the Class A-1B ARM
Principal Balance) of the Senior Percentage
times (a) the sum of the amounts described
in clauses (a) through (e) of the definition
of Formula Principal Distribution Amount
over the sum of (x) the amounts described in
clauses (B)(i) through (iv) of the
definition of the Group I ARM Formula
Principal Distribution Amount and (y) the
amounts described in clauses (B)(i) through
(iv) of the definition of the Group II ARM
Formula Principal Distribution Amount, less
(b) the amount, if any, to be distributed in
payment of principal on the Class A-1, A- 2
and A-3 Certificates on such Payment Date;
and
(g) if such Payment Date is on or
after the Payment Date on which the Class
A-1, A-2 and A-3 Certificates (other than
the Class A-1A ARM Certificates and the
Class A-1B ARM Certificates) have been paid
in full, the allocable portion (based on the
Class A-1B ARM Principal Balance as a
percentage of the sum of the Class A-1A ARM
Principal Balance and the Class A-1B
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<PAGE>
ARM Principal Balance) of the Senior
Percentage times (a) the sum of the amounts
described in clauses (a) through (e) of the
definition of Formula Principal Distribution
Amount over the sum of (x) the amounts
described in clauses (B)(i) through (iv) of
the definition of the Group I ARM Formula
Principal Distribution Amount and (y) the
amounts described in clauses (B)(i) through
(iv) of the definition of the Group II ARM
Formula Principal Distribution Amount, less
(b) the amount, if any, to be distributed in
payment of principal on the Class A-1, A-2
and A-3 Certificates on such Payment Date;
(7) after payment of the amounts specified in clauses (1)
through (6) above, to the Class M-1 Certificateholders, the amount in
clause (c) of the definition of Class M-1 Formula Distribution Amount;
(8) after payment of the amounts specified in clauses (1)
through (7) above, to the Class M-2 Certificateholders, the amount in
clause (c) of the definition of Class M-2 Formula Distribution Amount;
(9) after payment of the amounts specified in clauses (1)
through (8) above, to the Class B-1 Certificateholders, the amount in
clause (c) of the definition of Class B-1 Formula Distribution Amount;
(10) after payment of the amounts specified in clauses (1)
through (9) above, to the Class M-1 Certificateholders as follows (and
in the following order of priority):
(i) any Class M-1 Liquidation Loss Interest Amount;
and
(ii) any Unpaid Class M-1 Liquidation Loss Interest
Shortfall;
(11) after payment of the amounts specified in clauses (1)
through (10) above, to the Class M-2 Certificateholders as follows (and
in the following order of priority):
(i) any Class M-2 Liquidation Loss Interest Amount;
and
(ii) any Unpaid Class M-2 Liquidation Loss Interest
Shortfall;
(12) after payment of the amounts specified in clauses (1)
through (11) above, to the Class B-1 Certificateholders as follows (and
in the following order of priority):
(i) any Class B-1 Liquidation Loss Interest Amount;
and
(ii) any Unpaid Class B-1 Liquidation Loss Interest
Shortfall;
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(13) after payment of the amounts specified in clauses (1)
through (12) above, to the Class B-2 Certificateholders as follows (and
in the following order of priority):
(i) the amount in clause (a) of the definition of
Class B-2 Formula Distribution Amount;
(ii) any Unpaid Class B-2 Interest Shortfall; and
(iii) the amount in clause (c) of the definition of
Class B-2 Formula Distribution Amount;
(14) after payment of the amounts specified in clauses (1)
through (13) above, to the Class A-1A ARM Certificateholders and Class
A-1B ARM Certificateholders as follows:
to the Class A-1A ARM Certificateholders, any Class A-1A ARM
Available Funds Limitation Interest Amount, and to the Class
A-1B ARM Certificateholders, any Class A-1B ARM Available
Funds Limitation Interest Amount; or, if the Amount Available
is less than the amount necessary to pay both such interest
amounts, pro rata to the Class A-1A ARM Certificates and the
Class A-1B ARM Certificates in accordance with their
respective entitlements to such interest amounts;
(15) if Green Tree Financial Corporation or a wholly owned
subsidiary of Green Tree Financial Corporation is the Servicer, after
payment of the amounts specified in clauses (1) through (14) above, to
pay the Servicer the Monthly Servicing Fee with respect to the Loans;
(16) after payment of the amounts specified in clauses (1)
through (15) above, to reimburse the Servicer or the Trustee, as
applicable, for any unreimbursed Advances made with respect to the
Loans in respect of current or prior Payment Dates and to reimburse the
Obligor for any unreimbursed Advances made pursuant to Section 8.02;
(17) if such Payment Date is on or after the Payment Date on
which the Class C Certificateholder (or its assignee) may purchase the
Loans as provided in Section 8.06 and the ClassC Certificateholder has
not delivered to the Trustee the notice of its purchase option as
provided in Section 8.06(b), then, pursuant to Section 8.06(f), after
payment of the amounts specified in clauses (1) through (16) above, to
the Class M-1, Class M-2, Class B-1 and Class B-2 Certificates, the
Additional Principal Distribution Amount, allocated among such classes
pro rata based upon the outstanding Principal Balance of each such
Class on such Payment Date;
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<PAGE>
(18) after payment of the amounts specified in clauses (1)
through (17) above, to reimburse the Class C Certificateholders for
expenses incurred by and reimbursable to them pursuant to Section
10.06;
(19) after payment of the amounts specified in clauses (1)
through (18) above, to reimburse the Guarantor for any prior
unreimbursed Class B-2 Guaranty Payments;
(20) after payment of the amounts specified in clauses (1)
through (19) above, to pay the Class B-2 Guaranty Fee to the Guarantor;
and
(21) after payment of the amounts specified in clauses (1)
through (20) above, to pay the remainder, if any, of the Amount
Available to the Class C Master Certificateholder.
If the Trustee shall not have received the applicable Monthly Report by
any Payment Date, the Trustee shall, in accordance with this Section 8.04(b),
distribute all funds then in the Certificate Account to Certificateholders, to
the extent of such funds, on such Payment Date.
c. Notwithstanding the priorities set forth above, any Pre-Funded Group
I ARM Amount, Pre-Funded Group II ARM Amount or Pre-Funded Group I Fixed Rate
Amount deposited in the Certificate Account shall be applied solely to pay
principal of the Class A-1A ARM Certificates, Class A-1B ARM Certificates or
Class A-1 Certificates, respectively, and any amount withdrawn from the
Capitalized Interest Account and deposited in the Certificate Account shall be
applied solely as described in Section 8.07.
SECTION 8.05. Reassignment of Repurchased and Replaced Loans. Upon
receipt by the Trust, by deposit in the Certificate Account, of the Repurchase
Price under Section 3.06(a), or upon receipt by the Trust of an Eligible
Substitute Loan under Section 3.06(b) and receipt by the Trust, by deposit in
the Certificate Account, of any additional amount under Section 3.06(b)(vi), and
upon receipt of a certificate of a Servicing Officer in the form attached hereto
as Exhibit J-1 or J-2, as applicable, the Trustee shall convey and assign to the
Originator all of the Certificateholders' right, title and interest in the
repurchased Loan or Replaced Loan without recourse, representation or warranty,
except as to the absence of liens, charges or encumbrances created by or arising
as a result of actions of the Trustee. Upon such deposit of the Repurchase Price
or receipt of such Eligible Substitute Loan and related deposit of any
additional amount under Section 3.06(b)(vi), the Servicer shall be deemed to
have released any claims to such Loan as a result of Advances with respect to
such Loan.
SECTION 8.06. Class C Certificateholder's Purchase Option; Auction
Sale; Additional Principal Distribution Amount.
a. The Class C Certificateholder shall, subject to subsection (b)
hereof, have the option to purchase all of the Loans and all property acquired
in respect of any Loan remaining in
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the Trust at a price (such price being referred to as the "Minimum Purchase
Price") equal to the greater of:
(i) the sum of (x) 100% of the principal balance of each Loan
(other than any Loan as to which title to the underlying property has
been acquired and whose fair market value is included pursuant to
clause (y) below), together with accrued and unpaid interest on each
such Loan at a rate per annum equal to the Weighted Average
Pass-Through Rate, plus (y) the fair market value of such acquired
property (as reasonably determined by the Servicer as of the close of
business on the third Business Day preceding the date of such
purchase), and
(ii) the Aggregate Certificate Principal Balance as of the
date of such purchase (less any amounts on deposit in the Certificate
Account on such purchase date and representing payments of principal in
respect of the Loans) plus an amount necessary to pay the Class A
Formula Interest Distribution Amount, the Class A-1A ARM Formula
Available Funds Limitation Interest Distribution Amount, the Class A-1B
ARM Formula Available Funds Limitation Interest Distribution Amount,
the Class M-1 Formula Interest Distribution Amount, the Class M-1
Formula Liquidation Loss Interest Distribution Amount, the Class M-2
Formula Interest Distribution Amount, the Class M-2 Formula Liquidation
Loss Interest Distribution Amount, the Class B-1 Formula Interest
Distribution Amount, the Class B-1 Formula Liquidation Loss Interest
Distribution Amount and the Class B-2 Formula Interest Distribution
Amount due on the Payment Date occurring in the calendar month
following such purchase date (less any amounts on deposit in the
Certificate Account on such purchase date and representing payments of
interest in respect of the Loans at a rate per annum equal to the
Weighted Average Pass-Through Rate).
b. The purchase by the Class C Certificateholder of all of the Loans
pursuant to this Section 8.06 shall be conditioned upon:
(i) the Pool Scheduled Principal Balance, at the time
of any such purchase, aggregating not more than 20% of the
Cut-off Date Pool Principal Balance,
(ii) such purchase being made pursuant to a plan of
complete liquidation in accordance with Section 860F of the
Code, as provided in Section 12.04,
(iii) the Class C Certificateholder having provided
the Trustee and the Depository (if any) with at least 30 days'
written notice, and
(iv) the Trustee not having accepted a qualifying bid
for the Loans pursuant to subsection (e) below.
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If such option is exercised, the Class C Certificateholder shall provide to the
Trustee (at the Class C Certificateholder's expense) the certification required
by Section 12.04, which certificate shall constitute a plan of complete
liquidation within the meaning of Section 860F of the Code, and the Trustee
shall promptly sign such certification and release to the Class C
Certificateholder the Loan Files pertaining to the Loans being purchased.
c. The Class C Certificateholder may assign its rights under this
Section 8.06, separately from its other rights as Holder of the Class C
Certificates, by giving written notice of such assignment to the Trustee.
Following the Trustee's receipt of such notice of assignment, the Trustee shall
recognize only such assignee (or its assignee in turn) as the Person entitled to
exercise the purchase option set forth in Section 8.06(a).
d. The Servicer shall notify the Trustee and the Class C
Certificateholder (whether or not the Class C Certificateholder has then
assigned its rights under this Section 8.06 pursuant to subsection (c)) no later
than two Business Days after the Determination Date relating to the first Due
Period which includes the date on which the Pool Scheduled Principal Balance
first becomes less than 20% of the Cut-off Date Pool Principal Balance, to the
effect that the Pool Scheduled Principal Balance is then less than 20% of the
Cut-off Date Pool Principal Balance.
e. If the Class C Certificateholder (or its assignee) has not delivered
to the Trustee the notice of exercise of its purchase option required by
subsection (b) by the Payment Date occurring in the month following the
Determination Date specified in subsection (d), then promptly after the
following Payment Date the Trustee shall begin a process for soliciting bids in
connection with an auction for the Loans. The Trustee shall provide the Class C
Certificateholder (or its assignee) written notice of such auction at least 10
Business Days prior to the date bids must be received in such auction (the
"Auction Date").
If at least two bids are received, the Trustee shall solicit
and resolicit new bids from all participating bidders until only one bid remains
or the remaining bidders decline to resubmit bids. The Trustee shall accept the
highest of such remaining bids if it is equal to or in excess of the greater of
(i) the Minimum Purchase Price and (ii) the fair market value of the Loans and
related property (such amount being referred to as the "Minimum Auction Price").
If less than two bids are received or the highest bid after the resolicitation
process is completed is not equal to or in excess of the Minimum Auction Price,
the Trustee shall not consummate such sale. If a bid meeting the Minimum
Purchase Price is received, then the Trustee may, and if so requested by the
Class C Certificateholder shall, consult with a financial advisor, which may be
an underwriter of the Certificates, to determine if the fair market value of the
Loans and related property has been offered.
If the first auction conducted by the Trustee does not produce
any bid at least equal to the Minimum Auction Price, then the Trustee shall,
beginning on the Payment Date occurring approximately three months after the
Auction Date for the failed first auction, commence another auction in
accordance with the requirements of this subsection (e). If such
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second auction does not produce any bid at least equal to the Minimum Auction
Price, then the Trustee shall, beginning on the Payment Date occurring
approximately three months after the Auction Date for the failed second auction,
commence another auction in accordance with the requirements of this subsection
(e), and shall continue to conduct similar auctions approximately every three
months thereafter until the earliest of (i) delivery by the Class C
Certificateholder or its assignee of notice of exercise of its purchase option
under subsection (a), (ii) receipt by the Trustee of a bid meeting the
conditions specified in the preceding paragraph, or (iii) the Payment Date on
which the principal balance of all the Loans is reduced to zero.
If the Trustee receives a bid meeting the conditions specified
in this subsection (e), then the Trustee's written acceptance of such bid shall
constitute a plan of complete liquidation within the meaning of Section 860F of
the Code, and the Trustee shall release to the winning bidder, upon payment of
the bid purchase price, the Loan Files pertaining to the Loans being purchased.
f. If the Class C Certificateholder (or its assignee) has not delivered
to the Trustee the notice of exercise of its purchase option required by
subsection (b) by the Payment Date occurring in the month following the
Determination Date specified in subsection (d), then on the following Payment
Date and each Payment Date thereafter the Class M-1, Class M-2, Class B-1 and
Class B-2 Certificates shall be entitled to receive the Additional Principal
Distribution Amount, allocated among such classes pro rata based upon the
outstanding Principal Balance of each such Class on each such Payment Date.
SECTION 8.07. Capitalized Interest Account.
a. On or before the Closing Date, the Trustee shall establish the
Capitalized Interest Account on behalf of the Trust, which must be an Eligible
Account, and shall deposit therein $0.00 received from the Seller pursuant to
Section 2.02(m). The Capitalized Interest Account shall be entitled "Capitalized
Interest Account, U.S. Bank Trust National Association as Trustee for the
benefit of holders of Home Equity Loan Certificates, Series 1999-F." On the
Payment Date occurring in each of October, November and December 1999, if the
Monthly Report for such Payment Date indicates that the Amount Available (after
payment of the amount specified in clause (1) of Section 8.04(b) and including
in the Amount Available only payments in respect of interest on the Loans) is
not sufficient to pay the Class A Formula Interest Distribution Amount, plus the
Class M-1 Formula Interest Distribution Amount, plus the Class M-2 Formula
Interest Distribution Amount, plus the Class B-1 Formula Interest Distribution
Amount, the Trustee shall withdraw the amount of such deficiency, or the amount
of funds in the Capitalized Interest Account (net of any investment earnings
thereon), if less, and shall deposit such funds in the Certificate Account for
distribution on such Payment Date in order first to pay any deficiency in the
Amount Available to pay the Class A Formula Interest Distribution Amount, second
to pay any deficiency in the Amount Available to pay the Class M-1 Formula
Interest Distribution Amount, third to pay any deficiency in the Amount
Available to pay the Class M-2 Formula
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Interest Distribution Amount, and fourth to pay any deficiency in the Amount
Available to pay the Class B-1 Formula Interest Distribution Amount.
b. The Capitalized Interest Account shall be part of the Trust but not
part of the Subsidiary REMIC or the Master REMIC. The Trustee on behalf of the
Trust shall be the legal owner of the Capitalized Interest Account. The Seller
shall be the beneficial owner of the Capitalized Interest Account, subject to
the foregoing power of the Trustee to transfer amounts in the Capitalized
Interest Account to the Certificate Account. Funds in the Capitalized Interest
Account shall, at the direction of the Seller, be invested in Eligible
Investments that mature no later than the Business Day prior to the next
succeeding Payment Date. All net income and gain from such investments shall be
distributed to the Seller on such Payment Date. All amounts earned on amounts on
deposit in the Capitalized Interest Account shall be taxable to the Seller.
c. Any funds remaining in the Capitalized Interest Account after the
Payment Date in December 1999 shall be distributed to the Seller. After such
date no further amounts shall be deposited in or withdrawn from the Capitalized
Interest Account. Any losses on such investments shall be deposited in the
Capitalized Interest Account by the Seller out of its own funds immediately as
realized.
SECTION 8.08. Pre-Funding Account.
a. On or before the Closing Date, the Trustee shall establish the
Pre-Funding Account on behalf of the Trust, which must be an Eligible Account,
and shall deposit therein the amounts received from the Seller pursuant to
Section 2.02(l). The Pre-Funding Account shall be entitled "Pre-Funding Account,
U.S. Bank Trust National Association as Trustee for the benefit of holders of
Home Equity Loan Certificates, Series 1999-F." The Trustee shall maintain within
the Pre-Funding Account four subaccounts as follows: the "Pre-Funding Group I
ARM Subaccount," the "Pre-Funding Group II ARM Subaccount," and the "Pre-Funding
Group I Fixed Rate Subaccount" which pertain to the Subsequent Loans, and the
"Undelivered Loan Subaccount." Funds deposited in the Pre-Funding Account shall
be held in trust by the Trustee for the Holders of the Certificates and the
Class C Certificates for the uses and purposes set forth herein, which pertains
to Loans identified on the exception report but not delivered to the Trustee as
of the Closing Date.
b. On or before the Closing Date the Originator shall deposit in the
Pre-Funding Group I ARM Subaccount, the Pre-Funding Group II ARM Subaccount and
the Pre-Funding Group I Fixed Rate Subaccount, the respective amounts specified
in Section 2.02(l). Amounts on deposit in such subaccounts shall be withdrawn by
the Trustee as follows:
(i) On any Subsequent Transfer Date, the Trustee shall
withdraw from the Pre-Funding Group I ARM Subaccount an amount equal to
100% of the Cut-off Date Principal Balance of each Subsequent Group I
Adjustable Rate Loan transferred and assigned to the Trustee on such
Subsequent Transfer Date and pay such amount to or
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upon the order of the Originator upon satisfaction of the conditions
set forth in Section 2.03(b) with respect to such transfer and
assignment.
(ii) On any Subsequent Transfer Date, the Trustee shall
withdraw from the Pre-Funding Group II ARM Subaccount an amount equal
to 100% of the Cut-off Date Principal Balance of each Subsequent Group
II Adjustable Rate Loan transferred and assigned to the Trustee on such
Subsequent Transfer Date and pay such amount to or upon the order of
the Originator upon satisfaction of the conditions set forth in Section
2.03(b) with respect to such transfer and assignment.
(iii) On any Subsequent Transfer Date, the Trustee shall
withdraw from the Pre-Funding Group I Fixed Rate Subaccount an amount
equal to 100% of the Cut-off Date Principal Balance of each Subsequent
Group I Fixed Rate Loan transferred and assigned to the Trustee on such
Subsequent Transfer Date and pay such amount to or upon the order of
the Originator upon satisfaction of the conditions set forth in Section
2.03(b) with respect to such transfer and assignment.
(iv) On the Business Day immediately preceding the
Post-Funding Payment Date, the Trustee shall deposit into the
Certificate Account any amounts remaining in the Pre-Funding Group I
ARM Subaccount, the Pre-Funding Group II ARM Subaccount and the
Pre-Funding Group I Fixed Rate Subaccount, net of investment earnings.
c. The Pre-Funding Account shall be part of the Trust but not part of
the Master REMIC or Subsidiary REMIC. The Trustee on behalf of the Trust shall
be the legal owner of the Pre-Funding Account. The Seller shall be the
beneficial owner of the Pre-Funding Account, subject to the foregoing power of
the Trustee to transfer amounts in the Pre-Funding Account to the Certificate
Account. Funds in the Pre-Funding Account shall, at the direction of the
Servicer, be invested in Eligible Investments of the kind described in clauses
(i) and (ii)(A) of the definition of "Eligible Investments" and that mature no
later than the Business Day prior to the next succeeding Payment Date. All
amounts earned on deposits in the Pre-Funding Account shall be taxable to the
Seller. The Trustee shall release to the Seller all investment earnings in the
Pre-Funding Account on the first Payment Date after the end of the Pre-Funding
Period.
SECTION 8.09. Distributions on the Subsidiary REMIC Regular Interests.
a. On each Payment Date the Trustee shall be deemed to distribute to
itself, as the holder of the Subsidiary REMIC Regular Interests, the Subsidiary
REMIC Regular Interest Distribution Amounts in the following order of priority
to the extent of the Amount Available:
(i) Subsidiary REMIC Accrued Interest on the Subsidiary REMIC
Regular Interests S-1 and S-2 for such Payment Date, plus any
Subsidiary REMIC Accrued Interest thereon remaining unpaid from any
previous Payment Date;
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(ii) Subsidiary REMIC Accrued Interest on the Subsidiary REMIC
Regular Interest S-3 for such Payment Date, plus any Subsidiary REMIC
Accrued Interest thereon remaining unpaid from any previous Payment
Date;
(iii) Principal equal to the Class A Formula Principal
Distribution Amount, first on the Subsidiary REMIC Regular Interest S-1
until the related Subsidiary REMIC Principal Balance is reduced to
zero, and then on the Subsidiary REMIC Regular Interest S-2 until the
related Subsidiary REMIC Principal Balance is reduced to zero; and
(iv) Principal equal to the Class M Formula Principal
Distribution Amount and the Class B Formula Principal Distribution
Amount on the Subsidiary REMIC Regular Interest S-3 until the related
Subsidiary REMIC Principal Balance is reduced to zero.
b. On each Payment Date the Trustee shall be deemed to distribute from
the Master REMIC, to the holders of the Certificates in the priority set forth
in Section 8.04(b), the Subsidiary REMIC Regular Interest Distribution Amounts
deemed to have been received by the Master REMIC from the Subsidiary REMIC under
this Section 8.09.
c. Notwithstanding the deemed distributions on the Subsidiary REMIC
Regular Interests described in this Section 8.09, distributions of funds from
the Certificate Account shall be made only in accordance with Section 8.04.
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ARTICLE IX
THE CERTIFICATES AND THE CLASS C CERTIFICATES
---------------------------------------------
SECTION 9.01. The Certificates and the Class C Certificates. The Class
A, the Class M, the Class B and the Class C Certificates shall be substantially
in the forms set forth in Exhibits A-1, A-2, A-3, B, C and I, as applicable, and
shall, on original issue, be executed by the Trustee on behalf of the Trust to
or upon the order of the Originator. The Group I Fixed Rate Loans, Group I
Adjustable Rate Loans and Group II Adjustable Rate Loans together and the Group
II Fixed Rate Loans separately shall be deemed to be separate sub-trusts under
the Trust. The Class A, the Class M and the Class B Certificates shall be
evidenced by (i) one or more Class A-1A ARM Certificates evidencing $175,000,000
in Original Class A-1A ARM Principal Balance, (ii) one or more Class A-1B ARM
Certificates evidencing $75,000,000 in Original Class A-1B ARM Principal
Balance, (iii) one or more Class A-1 Certificates evidencing $88,000,000 in
Original Class A-1 Principal Balance, (iv) one or more Class A-2 Certificates
evidencing $124,500,000 in Original Class A-2 Principal Balance, (v) one or more
Class A-3 Certificates evidencing $39,368,000 in Original Class A-3 Principal
Balance, (vi) one or more Class A-3A Certificates evidencing $95,881,580 in
Original Class A-3A Principal Balance, (vii) one or more Class A-4 IO
Certificates evidencing a Class A-4 IO Original Notional Principal Amount of
$75,000,000, (viii) one or more Class M-1 Certificates evidencing $42,375,000 in
Original Class M-1 Principal Balance, (ix) one or more Class M-2 Certificates
evidencing $43,875,000 in Original Class M-2 Principal Balance, (x) one or more
Class B-1 Certificates evidencing $26,250,000 in Original Class B-1 Principal
Balance and (xi) one or more Class B-2 Certificates representing $28,500,420 in
Original Class B-2 Principal Balance, beneficial ownership of such Classes of
Certificates (other than the Class B-2 Certificates) to be held through
Book-Entry Certificates in minimum dollar denominations of $1,000 and integral
multiples of $1.00 in excess thereof. The Class C Subsidiary Certificate shall
be evidenced by a single Class C Certificate issued on the Closing Date to the
Originator and shall represent 100% of the Percentage Interest of the Class C
Subsidiary Certificates. The Class C Master Certificate shall be evidenced by a
single Class C Certificate issued on the Closing Date to the Originator and
shall represent 100% of the Percentage Interest of the Class C Master
Certificates.
The Certificates and the Class C Certificates shall be executed by
manual signature on behalf of the Trustee by a duly authorized Responsible
Officer or authorized signatory. Certificates or the Class C Certificates
bearing the signatures of individuals who were at any time the proper officers
of the Trustee shall bind the Trustee, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the execution and delivery
of such Certificate or Class C Certificates, or did not hold such offices at the
date of such Certificates or Class C Certificates. No Certificate or Class C
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless such Certificate or Class C Certificate has been
executed by manual signature in accordance with this Section, and such signature
upon any Certificate or Class C Certificate shall be conclusive evidence, and
the only evidence, that such Certificates or Class C Certificate has been duly
executed and delivered hereunder. All
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Certificates and the Class C Certificates shall be dated the date of their
execution, except for those Certificates and the Class C Certificates executed
on the Closing Date, which shall be dated the Closing Date.
SECTION 9.02. Registration of Transfer and Exchange of Certificates and
the Class C Certificates.
a. The Trustee shall keep at the office or agency to be maintained in
accordance with Section 12.03 a "Certificate Register" in which the Trustee
shall provide for the registration of Certificates and the Class C Certificates
and of transfers and exchanges of Certificates and the Class C Certificates as
herein provided. The Trustee initially appoints itself to be the "Certificate
Registrar" and transfer agent for the purpose of registering Certificates and
the Class C Certificates and transfers and exchanges of Certificates and the
Class C Certificates as provided herein. The Trustee will give prompt written
notice to Certificateholders, the Class C Certificateholders and the Servicer of
any change in the Certificate Registrar.
b. (1) Subject to clauses (2) and (3) below, no transfer of a Class C
Certificate shall be made by the Seller or any other Person unless such transfer
is exempt from the registration requirements of the Securities Act of 1933 (the
"Act"), as amended, and any applicable state securities laws or is made in
accordance with the Act and laws. In the event that any such transfer is to be
made, (A) the Originator may require a written Opinion of Counsel acceptable to
and in form and substance satisfactory to the Originator that such transfer may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the Act and laws or is being made pursuant to the Act and
laws, which Opinion of Counsel shall not be an expense of the Trustee or the
Originator, and (B) the Trustee shall require the transferee to execute an
investment letter substantially in the form of Exhibit K attached hereto, which
investment letter shall not be an expense of the Trustee or the Originator. The
Class C Certificateholder desiring to effect such transfer shall, and does
hereby agree to, indemnify the Trustee, the Originator and the Certificate
Registrar against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
(2) No transfer of a Class A-3A, Class M, Class B or Class C
Certificate or any interest therein shall be made to any employee benefit plan
that is subject to ERISA, or that is described in Section 4975(e)(1) of the Code
or to any person or entity purchasing on behalf of, or with assets of, such an
employee benefit plan (each, a "Plan"), unless the Plan delivers to the
Originator and the Trustee, an Opinion of Counsel in form satisfactory to the
Originator and the Trustee that the purchase and holding of such Certificate or
Class C Certificate by such Plan will not result in the assets of the Trust
being deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee, the
Originator or the Servicer to any obligation or liability in addition to those
undertaken in this Agreement. Unless such opinion is delivered and in the case
of Definitive Certificates, each person acquiring such a Certificate or Class C
Certificate will be deemed to represent to the Trustee, the Originator and the
Servicer either (i) that such person is neither a Plan, nor acting on behalf of
a Plan,
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subject to ERISA or to Section 4975 of the Code, or (ii) that the purchase and
holding of the Certificate by such Plan will not result in the assets of the
Trust being deemed to be Plan assets and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee, the
Originator or the Servicer to any obligation or liability in addition to those
undertaken in this Agreement.
(3) Notwithstanding anything to the contrary contained herein,
(A) no Class C Certificate, nor any interest therein, shall be transferred, sold
or otherwise disposed of to a "disqualified organization," within the meaning of
Section 860E(e)(5) of the Code (a "Disqualified Organization"), including, but
not limited to, (i) the United States, a state or political subdivision thereof,
a foreign government, an international organization or an agency or
instrumentality of any of the foregoing, (ii) an organization (other than a
cooperative described in Section 521 of the Code) which is exempt from the taxes
imposed by Chapter 1 of the Code and not subject to the tax imposed on unrelated
business income by Section 511 of the Code, or (iii) a cooperative described in
Section 1381(a)(2)(C) of the Code, and (B) prior to any registration of any
transfer, sale or other disposition of a Class C Certificate, the proposed
transferee shall deliver to the Trustee, under penalties of perjury, an
affidavit that such transferee is not a Disqualified Organization, with respect
to which the Trustee shall have no actual knowledge that such affidavit is
false, and the transferor and the proposed transferee shall each deliver to the
Trustee an affidavit with respect to any other information reasonably required
by the Trustee pursuant to the REMIC Provisions, including, without limitation,
information regarding the transfer of noneconomic residual interests and
transfers of any residual interest to or by a foreign person; provided, however,
that, upon the delivery to the Trustee of an Opinion of Counsel, in form and
substance satisfactory to the Trustee and rendered by Independent counsel, to
the effect that the beneficial ownership of a Class C Certificate by any
Disqualified Organization will not result in the imposition of federal income
tax upon the Trust or any Certificateholder or Class C Certificateholder or any
other person or otherwise adversely affect the status of the Trust as a REMIC,
the foregoing prohibition on transfers, sales and other dispositions, as well as
the foregoing requirement to deliver a certificate prior to any registration
thereof, shall, with respect to such Disqualified Organization, terminate.
Notwithstanding any transfer, sale or other disposition of a Class C
Certificate, or any interest therein, to a Disqualified Organization or the
registration thereof in the Certificate Register, such transfer, sale or other
disposition and any registration thereof, unless accompanied by the Opinion of
Counsel described in the preceding sentence, shall be deemed to be void and of
no legal force or effect whatsoever and such Disqualified Organization shall be
deemed not to be a Class C Certificateholder for any purpose hereunder,
including, but not limited to, the receipt of distributions on a Class C
Certificate, and shall be deemed to have no interest whatsoever in a Class C
Certificate. Each Class C Certificateholder, by his acceptance thereof, shall be
deemed for all purposes to have consented to the provisions of this Section
9.02(b)(3).
(4) Any transfer, sale or other disposition not in compliance
with the provisions of this Section 9.02(b) shall be deemed to be void and of no
legal force or effect whatsoever and such transferee shall be deemed not to be
the Certificateholder or Class C
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Certificateholder, as applicable, for any purpose hereunder, including, but not
limited to, the receipt of distributions on the Certificate or Class C
Certificate, and shall be deemed to have no interest whatsoever in the
Certificate or Class C Certificate.
(5) The Trustee shall give notice to S&P and Fitch promptly
following any transfer, sale or other disposition of a Class C Certificate.
c. At the option of a Certificateholder or a Class C Certificateholder,
Certificates and the Class C Certificates may be exchanged for other
Certificates or Class C Certificates of authorized denominations of a like
aggregate original denomination, upon surrender of such Certificates or the
Class C Certificates to be exchanged at the Corporate Trust Office. Whenever any
Certificates or the Class C Certificates are so surrendered for exchange, the
Trustee shall execute and deliver the Certificates or Class C Certificates which
the Certificateholder or Class C Certificateholders making the exchange is
entitled to receive. Every Certificate or Class C Certificate presented or
surrendered for transfer or exchange shall be duly endorsed by, or shall be
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by, the holder thereof or
his or her attorney duly authorized in writing.
d. Except as provided in paragraph (e) below, the Book-Entry
Certificates shall at all times remain registered in the name of the Depository
or its nominee and at all times: (i) registration of the Certificates may not be
transferred by the Trustee except to another Depository; (ii) the Depository
shall maintain book-entry records with respect to the Certificate Owners and
with respect to ownership and transfers of such Certificates; (iii) ownership
and transfers of registration of the Certificates on the books of the Depository
shall be governed by applicable rules established by the Depository; (iv) the
Depository may collect its usual and customary fees, charges and expenses from
its Depository Participants; (v) the Trustee shall deal with the Depository,
Depository Participants and indirect participating firms as representatives of
the Certificate Owners of the Certificates for purposes of exercising the rights
of Holders under this Agreement, and requests and directions for and votes of
such representatives shall not be deemed to be inconsistent if they are made
with respect to different Certificate Owners; and (vi) the Trustee may rely and
shall be fully protected in relying upon information furnished by the Depository
with respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and persons shown on
the books of such indirect participating firms as direct or indirect Certificate
Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
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e. If (x)(i) the Seller or the Depository advises the Trustee in
writing that the Depository is no longer willing or able properly to discharge
its responsibilities as Depository and (ii) the Trustee or the Originator is
unable to locate a qualified successor or (y) the Originator at its sole option
advises the Trustee in writing that it elects to terminate the book-entry system
through the Depository, the Trustee shall notify all Certificate Owners, through
the Depository, of the occurrence of any such event and of the availability of
definitive, fully registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration, the Trustee shall issue the Definitive
Certificates. Neither the Originator 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 all references herein to obligations imposed upon or to be
performed by the Depository shall be deemed to be imposed upon and performed by
the Trustee, to the extent applicable with respect to such Definitive
Certificates and the Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
f. On or prior to the Closing Date, there shall be delivered to the
Depository one Class A-1A ARM Certificate, one Class A-1B ARM Certificate, one
Class A-1 Certificate, one Class A-2 Certificate, one Class A-3 Certificate, one
Class A-3A Certificate, one Class A-4 IO Certificate, one Class M-1 Certificate,
one Class M-2 Certificate and one Class B-1 Certificate, each in registered form
registered in the name of the Depository's nominee, Cede & Co., the total face
amount of which represents 100% of the Original Class Principal Balance (or, in
the case of the Class A-4 IO Certificates, the Class A-4 IO Original Notional
Principal Amount) of each Class, respectively. Each such Certificate registered
in the name of the Depositary's nominee shall bear the following legend:
"Unless this Certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC") to the Trustee
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein."
SECTION 9.03. No Charge; Disposition of Void Certificates or Class C
Certificates. No service charge shall be made to a Certificateholder or Class C
Certificateholder for any transfer or exchange of a Certificate or a Class C
Certificate, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of a Certificate or a Class C
Certificate. All Certificates and Class C Certificates surrendered for transfer
and exchange shall be disposed of in a manner approved by the Trustee.
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SECTION 9.04. Mutilated, Destroyed, Lost or Stolen Certificates or
Class C Certificates. If (a) any mutilated Certificate or Class C Certificate is
surrendered to the Certificate Registrar, or the Certificate Registrar receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate or Class C Certificate, and (b) there is delivered to the
Certificate Registrar and the Trustee such security or indemnity as may be
required by each to save it harmless, then in the absence of notice to the
Certificate Registrar or the Trustee that such Certificate or Class C
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate or Class C Certificate, a new Certificate
or Class C Certificate of like tenor and original denomination. Upon the
issuance of any new Certificate or Class C Certificate under this Section 9.04,
the Trustee may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. Any duplicate Certificate or Class C Certificate
issued pursuant to this Section 9.04 shall constitute complete and indefeasible
evidence of ownership of the Percentage Interest, as if originally issued,
whether or not the mutilated, destroyed, lost or stolen Certificate or Class C
Certificate shall be found at any time.
SECTION 9.05. Persons Deemed Owners. Prior to due presentation of a
Certificate or Class C Certificate for registration of transfer, the Servicer,
the Seller, the Trustee, the Paying Agent and the Certificate Registrar may
treat the person in whose name any Certificate or Class C Certificate is
registered as the owner of such Certificate or Class C Certificate for the
purpose of receiving remittances pursuant to Section 8.01 and for all other
purposes whatsoever, and none of the Servicer, the Seller, the Trustee, the
Certificate Registrar, the Paying Agent or any agent of the Servicer, the
Seller, the Trustee, the Paying Agent or the Certificate Registrar shall be
affected by notice to the contrary.
SECTION 9.06. Access to List of Certificateholders' and Class C
Certificateholders' Names and Addresses. The Certificate Registrar will furnish
to the Trustee and the Servicer, within five days after receipt by the
Certificate Registrar of a request therefor from the Trustee in writing, a list,
in such form as the Trustee may reasonably require, of the names and addresses
of the Certificateholders and the Class C Certificateholders as of the most
recent Record Date. If Holders of Certificates representing, in the aggregate,
25% or more of the Aggregate Certificate Principal Balance apply in writing to
the Trustee (hereinafter referred to as "Applicants"), and such application
states that the Applicants desire to communicate with other Certificateholders
or the Class C Certificateholders with respect to their rights under this
Agreement or under the Certificates or the Class C Certificates and is
accompanied by a copy of the communication which such Applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, afford such Applicants access during normal business hours to
the most recent list of Certificateholders and the Class C Certificateholders
held by the Trustee. If such list is as of a date more than 90 days prior to the
date of receipt of such Applicants' request, the Trustee shall promptly request
from the Certificate Registrar a current list as provided above, and shall
afford such Applicants access to such list promptly upon receipt. Every
Certificateholder and the Class C Certificateholders, by receiving and holding a
Certificate
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or a Class C Certificate, agrees with the Certificate Registrar and the Trustee
that none of the Originator, the Certificate Registrar or the Trustee shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Certificateholders or the Class C Certificateholders
hereunder, regardless of the source from which such information was derived.
SECTION 9.07. Authenticating Agents. The Trustee may appoint one or
more Authenticating Agents with power to act on its behalf and subject to its
direction in the execution and delivery of the Certificates or the Class C
Certificates. For all purposes of this Agreement, the execution and delivery of
Certificates or the Class C Certificates by the Authenticating Agent pursuant to
this Section shall be deemed to be the execution and delivery of Certificates or
the Class C Certificates "by the Trustee."
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ARTICLE X
INDEMNITIES
-----------
SECTION 10.01. Real Estate. The Seller and Originator will jointly and
severally defend and indemnify the Trust, the Trustee (including the Custodian
and any other agents of the Trustee) and the Certificateholders and the Class C
Certificateholders against any and all costs, expenses, losses, damages, claims
and liabilities, including reasonable fees and expenses of counsel and expenses
of litigation arising out of or resulting from the use or ownership of any real
estate related to a Loan by the Originator or the Servicer or any Affiliate of
either. Notwithstanding any other provision of this Agreement, the obligation of
the Originator under this Section shall not terminate upon a Service Transfer
pursuant to Article VII, except that the obligation of the Originator under this
Section shall not relate to the actions of any subsequent Servicer after a
Service Transfer.
SECTION 10.02. Liabilities to Obligors. No obligation or liability to
any Obligor under any of the Loans is intended to be assumed by the Trust, the
Certificateholders or the Class C Certificateholders under or as a result of
this Agreement and the transactions contemplated hereby and, to the maximum
extent permitted and valid under mandatory provisions of law, the Trust, the
Certificateholders and the Class C Certificateholders expressly disclaim such
assumption.
SECTION 10.03. Tax Indemnification. The Originator agrees to pay, and
to indemnify, defend and hold harmless the Trust, the Trustee (including the
Custodian and any other agents of the Trustee), the Certificateholders and the
Class C Certificateholders from, any taxes which may at any time be asserted
with respect to, and as of the date of, the transfer of the Loans to the Trust,
including, without limitation, any sales, gross receipts, general corporation,
personal property, privilege or license taxes (but not including any federal,
state or other taxes arising out of the creation of the Trust and the issuance
of the Certificates and the Class C Certificates) and costs, expenses and
reasonable counsel fees in defending against the same, whether arising by reason
of the acts to be performed by the Originator, the Seller, the Servicer or the
Trustee under this Agreement or imposed against the Trust, a Certificateholder,
the Class C Certificateholders or otherwise.
SECTION 10.04. Servicer's Indemnities. The Servicer shall defend and
indemnify the Trust, the Trustee (including the Custodian and any other agents
of the Trustee), the Certificateholders and the Class C Certificateholders
against any and all costs, expenses, losses, damages, claims and liabilities,
including reasonable fees and expenses of counsel and expenses of litigation, in
respect of any action taken or omitted to be taken by the Servicer with respect
to any Loan. This indemnity shall survive any Service Transfer (but the original
Servicer's obligations under this Section 10.04 shall not relate to any actions
of any subsequent Servicer after a Service Transfer) and any payment of the
amount owing under, or any repurchase by the Originator of, any such Loan.
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SECTION 10.05. Operation of Indemnities. Indemnification under this
Article shall include, without limitation, reasonable fees and expenses of
counsel and expenses of litigation. If the Originator or the Servicer has made
any indemnity payments to the Trustee pursuant to this Article and the Trustee
thereafter collects any of such amounts from others, the Trust will repay such
amounts collected to the Originator or the Servicer, as the case may be, without
interest.
SECTION 10.06. REMIC Tax Matters. If a Class C Certificateholder,
pursuant to Section 6.06, pays any taxes or charges imposed upon the Trust, the
Master REMIC or the Subsidiary REMIC as a REMIC or otherwise, such taxes or
charges, except to the extent set forth in the following proviso, shall be
expenses and costs of the Trust and the Class C Certificateholders shall be
entitled to be reimbursed therefor out of the Certificate Account as provided in
Section 8.04; provided, however, that any such taxes or charges shall not be
expenses or costs of the Trust, nor will the Class C Certificateholders be
entitled to reimbursement therefor out of the Certificate Account, if and to the
extent that such taxes or charges resulted from a failure (i) by the Originator,
the Trustee or any Servicer to comply with the provisions of Section 2.05, (ii)
by any Servicer to comply with the provisions of Section 6.06, or (iii) by the
Trustee to execute any tax returns pursuant to Section 11.11.
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ARTICLE XI
THE TRUSTEE
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SECTION 11.01. Duties of Trustee. The Trustee, prior to the occurrence
of an Event of Termination and after the curing of all Events of Termination
which may have occurred, undertakes to perform such duties and only such duties
as are specifically set forth in this Agreement. If an Event of Termination has
occurred (which has not been cured), the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement.
Subject to Section 11.03, 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:
a. Prior to the occurrence of an Event of Termination, and
after the curing of all such Events of Termination which may have
occurred, the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall
not be liable except for the performance of such duties and obligations
as are specifically set forth in this Agreement, no implied covenants
or obligations shall be read into this Agreement against the Trustee
and, in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement;
b. The Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
c. 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 Certificateholders
representing, in the aggregate, 25% or more of the Aggregate
Certificate Principal Balance relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; and
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d. The Trustee shall not be charged with knowledge of any
event referred to in Section 7.01 unless a Responsible Officer of the
Trustee at the Corporate Trust Office obtains actual knowledge of such
event or the Trustee receives written notice of such event from the
Servicer or the Certificateholders representing, in the aggregate, 25%
or more of the Aggregate Certificate Principal Balance.
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
of, any of the obligations of the Originator, the Seller or 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. 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.
SECTION 11.02. Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 11.01:
a. The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of a Servicing Officer, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
b. The Trustee may consult with counsel and any opinion of any
counsel for the Originator, the Seller or the Servicer shall be full
and complete authorization and protection in respect of any action
taken or suffered or omitted by the Trustee hereunder in good faith and
in accordance with such 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 to institute,
conduct or defend any litigation hereunder or in relation hereto, at
the request, order or direction of any of the Certificateholders,
pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby; provided, however, that nothing
contained herein shall relieve the Trustee of the obligations, upon the
occurrence of an Event of Termination (which has not been cured), to
exercise such of the rights and powers vested in it by this Agreement,
and to use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the
conduct of his own affairs;
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d. Prior to the occurrence of an Event of Termination and
after the curing of all Events of Termination which may have occurred,
the Trustee shall not be bound to make any investigation into the facts
or matters stated in 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 Certificateholders representing, in the aggregate, 25% or more of
the Aggregate Certificate Principal Balance; provided, however, that if
the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of
this Agreement, the Trustee may require reasonable indemnity against
such cost, expense or liability as a condition to so proceeding. The
reasonable expense of every such examination shall be paid by the
Servicer or, if paid by the Trustee, shall be reimbursed by the
Servicer upon demand; and
e. 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 shall not be liable for
any acts or omissions of such agents, attorneys or custodians if
appointed by it with due care hereunder.
SECTION 11.03. Trustee Not Liable for Certificates, Class C
Certificates or Loans. The Trustee assumes no responsibility for the correctness
of the recitals contained herein, in the Certificates or in the Class C
Certificates (other than the Trustee's execution thereof). The Trustee makes no
representations as to the validity or sufficiency of this Agreement, of the
Certificates or of the Class C Certificates (other than its execution thereof)
or of any Loan, Loan File or related document. The Trustee shall not be
accountable for the use or application by the Servicer, the Originator or the
Seller of funds paid to the Originator or the Seller, as applicable in
consideration of conveyance of the Loans to the Trust by the Originator and the
Seller or deposited in or withdrawn from the Certificate Account by the
Servicer.
SECTION 11.04. Trustee May Own Certificates. The Trustee in its
individual or other capacity may become the owner or pledgee of Certificates
representing less than all the beneficial interest in the Trust with the same
rights as it would have if it were not Trustee.
SECTION 11.05. Rights of Certificateholders to Direct Trustee and to
Waive Events of Termination. Holders of Certificates representing, in the
aggregate, 25% or more of the Aggregate Certificate Principal Balance shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee; provided, however, that, subject to Section 11.01, 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
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
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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 by the
Certificateholders. Holders of the Certificates representing, in the aggregate,
51% or more of the Aggregate Certificate Principal Balance may on behalf of all
Certificateholders waive any past Event of Termination hereunder and its
consequences, except a default in respect of a covenant or provision hereof
which under Section 12.08 cannot be modified or amended without the consent of
all Certificateholders, and upon any such waiver, such Event of Termination
shall cease to exist and shall be deemed to have been cured for every purpose of
this Agreement; but no such waiver shall extend to any subsequent or other Event
of Termination or impair any right consequent thereon.
SECTION 11.06. The Servicer to Pay Trustee's Fees and Expenses. The
Servicer agrees:
a. to pay to the Trustee reasonable compensation for all
services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust) including the services provided in
connection with any auctions pursuant to Section 8.06(e);
b. except as otherwise expressly provided herein, to reimburse
the Trustee, to the extent requested by the Trustee, for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Agreement (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel, and reasonable compensation, expenses and
disbursements in connection with any auctions pursuant to Section
8.06(e)), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
c. to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the Trust and its duties hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
The covenants in this Section 11.06 shall be for the benefit of the
Trustee in its capacities as Trustee, Paying Agent and Certificate Registrar
hereunder, and shall survive the termination of this Agreement.
SECTION 11.07. Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be a financial institution organized and doing
business under the laws of the United States of America or any State, authorized
under such laws to exercise corporate trust powers, and shall have a combined
capital and surplus of at least $50,000,000 or shall be a member of a bank
holding system the aggregate combined capital and surplus of which is
$50,000,000, provided that the Trustee's separate capital and surplus shall at
all times be at least the amount required by Section 310(a)(2) of the Trust
Indenture Act of 1939, as amended. If such Person
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publishes reports of condition at least annually, pursuant to law or to the
requirements of a supervising or examining authority, then for the purposes of
this Section 11.07, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In addition, the Trustee (or, if the Trustee
is U.S. Bank Trust National Association, the parent company of U.S. Bank Trust
National Association) shall at all times have a long-term deposit rating from
S&P of at least BBB or as shall be otherwise acceptable to S&P and have a
long-term deposit rating from Fitch of at least BBB or as shall be otherwise
acceptable to Fitch. In case at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section 11.07, the Trustee shall
resign immediately in the manner and with the effect specified in Section 11.08.
SECTION 11.08. Resignation or Removal of Trustee. The Trustee may at
any time resign and be discharged from the trusts hereby created by giving
written notice thereof to the Servicer and the Originator. Upon receiving such
notice of resignation, the Originator shall promptly appoint a successor Trustee
by written instrument, in duplicate, one copy of which instrument shall be
delivered to each of the Servicer and the Originator and one copy to the
successor Trustee. If no successor Trustee shall have been so appointed and
shall have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 11.07 and shall fail to resign after written
request therefor by the Originator, or if at any time the Trustee shall be
legally unable to act, or shall be adjudged a 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
Originator may remove the Trustee. If the Originator shall have removed the
Trustee under the authority of the immediately preceding sentence, the
Originator shall 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.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 11.08 shall
not become effective until acceptance of appointment by the successor Trustee as
provided in Section 11.09.
SECTION 11.09. Successor Trustee. Any successor Trustee appointed as
provided in Section 11.08 shall execute, acknowledge and deliver to the
Servicer, the Originator and to its predecessor 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 like
effect as if originally named as Trustee. The predecessor Trustee shall deliver
or cause to be delivered to the successor Trustee the Loans and the Loan Files
and any related documents and statements held by it
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hereunder; and, if the Loans are then held by a Custodian pursuant to a
custodial agreement, the predecessor Trustee and the Custodian shall amend such
custodial agreement to make the successor Trustee the successor to the
predecessor Trustee thereunder; and the Servicer, the Originator 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.
No successor Trustee shall accept appointment as provided in this
Section 11.09 unless at the time of such acceptance such successor Trustee shall
be eligible under the provisions of Section 11.07.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 11.09, the Servicer shall cause notice of the succession of such
Trustee hereunder to be mailed to S&P, to Fitch and to each Certificateholder
and the Class C Certificateholders at their addresses as shown in the
Certificate Register. If the Servicer fails to mail such notice within ten days
after acceptance of appointment by the successor Trustee, the successor Trustee
shall cause such notice to be mailed at the expense of the Servicer.
SECTION 11.10. 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
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such Person shall be eligible under the provisions
of Section 11.07, 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. The Trustee shall promptly notify S&P and Fitch in the event it
is a party to any merger, conversion or consolidation.
SECTION 11.11. Tax Returns. Upon the Servicer's request, the Trustee
will furnish the Servicer with all such information as the Servicer may
reasonably require in connection with preparing all tax returns of the Trust and
the Trustee shall execute such returns.
SECTION 11.12. Obligor Claims. In connection with any offset defenses,
or affirmative claims for recovery, asserted in legal actions brought by
Obligors under one or more Loans based upon provisions therein complying with,
or upon other rights or remedies arising from, any legal requirements applicable
to the Loans, including, without limitation, the Federal Trade Commission's
Trade Regulation Rule Concerning Preservation of Consumers' Claims and Defenses
(16 C.F.R. ss. 433) as amended from time to time:
a. The Trustee is not, and shall not be deemed to be, either
in any individual capacity, as trustee hereunder or otherwise, a
creditor, or a joint venturer with or an Affiliate of, or acting in
concert or cooperation with, any home equity lender, in the
arrangement, origination or making of Loans. The Trustee is the holder
of the Loans only
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as trustee on behalf of the Certificateholders and the Class C
Certificateholders, and not as a principal or in any individual or
personal capacity;
b. The Trustee shall not be personally liable for or obligated
to pay Obligors any affirmative claims asserted thereby, or responsible
to Certificateholders or the Class C Certificateholders for any offset
defense amounts applied against Loan payments, pursuant to such legal
actions;
c. The Trustee will pay, solely from available Trust monies,
affirmative claims for recovery by Obligors only pursuant to final
judicial orders or judgments, or judicially approved settlement
agreements, resulting from such legal actions;
d. The Trustee will comply with judicial orders and judgments
which require its actions or cooperation in connection with Obligors'
legal actions to recover affirmative claims against Certificateholders
and the Class C Certificateholders;
e. The Trustee will cooperate with and assist
Certificateholders and the Class C Certificateholders in their defense
of legal actions by Obligors to recover affirmative claims if such
cooperation and assistance is not contrary to the interests of the
Trustee as a party to such legal actions and if the Trustee is
satisfactorily indemnified for all liability, costs and expenses
arising therefrom; and
f. The Originator hereby agrees to indemnify, hold harmless
and defend the Trustee, Certificateholders and the Class C
Certificateholders from and against any and all liability, loss, costs
and expenses of the Trustee, Certificateholders and the Class C
Certificateholders resulting from any affirmative claims for recovery
asserted or collected by Obligors under the Loans. Notwithstanding any
other provision of this Agreement, the obligation of the Originator
under this Section 11.12(f) shall not terminate upon a Service Transfer
pursuant to Article VII.
SECTION 11.13. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction having authority over the
Trust, the Loans or the Obligors, the Originator and the Trustee acting jointly
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons approved by the Trustee to act as co-trustee or co-trustees,
jointly with the Trustee, or separate trustee or separate trustees, of all or
any part of the Trust, and to vest in such Person or Persons, in such capacity,
such title to the Trust, or any part thereof, and, subject to the other
provisions of this Section 11.13, such powers, duties, obligations, rights and
trusts as the Originator and the Trustee may consider necessary or desirable. If
the Originator shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Termination
shall have occurred and be continuing, the Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
11.07
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hereunder and no notice to Certificateholders or the Class C Certificateholders
of the appointment of co-trustee(s) or separate trustee(s) shall be required
under Section 11.09.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 11.13 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 co-trustee or separate trustee
jointly, except to the extent that under any law 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 by
such co-trustee or separate trustee at the direction of the Trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then co-trustees and separate trustees,
as effectively as if given to each of them. Every instrument appointing any
co-trustee or separate trustee shall refer to this Agreement and the conditions
of this Article XI. Each co-trustee and separate trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
Any co-trustee or separate trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any co-trustee or separate 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 11.14. Trustee and U.S. Bancorp. In the event the Trustee
ceases to be a direct, wholly owned subsidiary of U.S. Bancorp, the Trustee
shall promptly notify S&P and Fitch.
SECTION 11.15. Trustee Advances.
a. If the Servicer fails to deposit into the Certificate Account
Advances as required by Section 8.02, then the Trustee shall, subject to the
provisions of paragraph (b) below, from its own funds, deposit into the
Certificate Account the amount not so deposited by the Servicer on or before the
Business Day preceding the related Payment Date (a "Trustee Advance").
b. The Trustee shall not be required to make any Trustee Advance if and
to the extent that it determines in good faith that the funds, if advanced,
would not be recoverable by it
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from subsequent amounts available in the Certificate Account in accordance with
Section 8.04(b).
c. The Trustee shall be entitled to reimbursement of a Trustee Advance
from funds subsequently available therefor in the Certificate Account in
accordance with Section 8.04(b).
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ARTICLE XII
MISCELLANEOUS
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SECTION 12.01. Servicer Not to Resign; Delegation of Servicing Duties.
The Servicer shall not resign from the obligations and duties hereby imposed on
it except upon determination that the performance of its duties hereunder is no
longer permissible under applicable law. Any such determination permitting the
resignation of the Servicer shall be evidenced by an Opinion of Counsel for the
Servicer 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
7.03.
Notwithstanding the foregoing, Green Tree Financial Corporation, if it
is the Servicer, may delegate some or all of its servicing duties to a wholly
owned subsidiary of the Originator, for so long as said subsidiary remains,
directly or indirectly, a wholly owned subsidiary of Green Tree Financial
Corporation. Notwithstanding any such delegation, Green Tree Financial
Corporation shall retain all of the rights and obligations of the Servicer
hereunder.
SECTION 12.02. Green Tree and Seller Not to Engage in Certain
Transactions with Respect to the Trust. Neither Green Tree Financial Corporation
nor the Seller shall:
a. Provide credit to any Certificateholder for the purpose of
enabling such Certificateholder to purchase Certificates;
b. Purchase any Certificates in an agency or trustee capacity;
or
c. Loan any money to the Trust (other than Advances pursuant
to Section 8.02).
SECTION 12.03. Maintenance of Office or Agency. The Trustee will
maintain in Minneapolis or St. Paul, Minnesota, an office or agency where
Certificates or the Class C Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Trustee in
respect of the Certificates, the Class C Certificates and this Agreement may be
served. On the date hereof the Trustee's office for such purposes is located at
180 East 5th Street, Second Floor, St. Paul, Minnesota 55101. The Trustee will
give prompt written notice to the Originator, the Seller, the Servicer, the
Certificateholders and the Class C Certificateholders of any change in the
location of the Certificate Register or any such office or agency.
SECTION 12.04. Termination.
a. The Trust created hereby and the respective obligations and
responsibilities of the Originator, the Seller, the Servicer, the Guarantor and
the Trustee created hereby (other than the
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responsibility of the Trustee to make any final distributions to
Certificateholders and the Class C Certificateholders as set forth below) shall
terminate on the earlier of (a) the Payment Date on which the principal balance
of all of the Loans is reduced to zero; or (b) the Payment Date occurring in the
month following the sale of the Loans pursuant to Section 8.06; provided, that
in no event shall the trust created hereby continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof, and provided, further, that the Servicer's and the
Originator's representations and warranties and indemnities by the Originator
and the Servicer shall survive termination. Any termination of the Trust must be
conducted so as to qualify as a "qualified liquidation" of the Master REMIC and
Subsidiary REMIC within the meaning of the REMIC Provisions.
b. Notice of any termination, specifying the Final Payment Date (which
shall be a date that would otherwise be a Payment Date) upon which all
Certificateholders or the Class C Certificateholders may surrender their
Certificates or the Class C Certificates to the Trustee for payment of the final
distribution and cancellation, shall be given promptly by the Trustee (upon
direction by the Servicer ten days prior to the date such notice is to be
mailed) by letter to S&P, Fitch, the Certificateholders and the Class C
Certificateholders mailed no later than the fifth Business Day of the month of
the Final Payment Date specifying (1) the Final Payment Date upon which final
payment on the Certificates and the Class C Certificates will be made upon
presentation and surrender of Certificates and the Class C Certificates at the
office or agency of the Trustee therein designated; (2) the amount of any such
final payment; and (3) that the Record Date otherwise applicable to such Payment
Date is not applicable, payments being made only upon presentation and surrender
of the Certificates and the Class C Certificates at the office or agency of the
Trustee therein specified. Any notice of sale of the Loans pursuant to Section
8.06 shall constitute the adoption by the Trustee on behalf of the
Certificateholders and the Class C Certificateholders of a plan of complete
liquidation within the meaning of Section 860F of the Code on the date such
notice is given when signed by the Trustee. Each such notice shall, to the
extent required by the REMIC Provisions or other applicable law, be signed on
behalf of the Trust by the Trustee. The Trustee shall give such notice to the
Certificate Registrar at the time such notice is given to the Certificateholders
and the Class C Certificateholders. In the event such notice is given in
connection with the sale of the Loans pursuant to Section 8.06, the Class C
Certificateholder or the Trustee, as applicable, shall deposit in the
Certificate Account on the Final Payment Date in immediately available funds an
amount equal to the purchase price specified in Section 8.06 and upon such
deposit the Certificateholders and the Class C Certificateholders will be
entitled to the amount of such purchase price but not amounts in excess thereof,
all as provided herein. Upon such final deposit, the Trustee shall promptly
release to the purchaser of the Loans pursuant to Section 8.06 the Loan Files
for the remaining Loans, and the Trustee shall execute all assignments,
endorsements and other instruments necessary to effectuate such transfer.
c. Upon presentation and surrender of the Certificates and the Class C
Certificates, the Trustee shall cause to be distributed from the Certificate
Account, in the following order of
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priority, to the Certificateholders and the Class C Certificateholders on the
Final Payment Date in proportion to their respective Percentage Interests: (1)
to the extent the Amount Available is sufficient therefor, and in the order of
priority provided for in Section 8.04(b), an amount equal to (i) as to Class A
Certificates, the Class A-1A ARM Principal Balance, the Class A-1B ARM Principal
Balance, the Class A-1 Principal Balance, the Class A-2 Principal Balance, the
Class A-3 Principal Balance, the Class A-3A Principal Balance and, together with
any Unpaid Class A Interest Shortfall, any Class A-1A ARM Formula Available
Funds Limitation Interest Distribution Amount, any Class A-1B ARM Formula
Available Funds Limitation Interest Distribution Amount and one month's interest
at the Class A-1A ARM Pass-Through Rate, the Class A-1B ARM Pass-through Rate,
the Class A-1 Pass-Through Rate, the Class A-2 Pass- Through Rate, the Class A-3
Pass-Through Rate, the Class A-3A Pass-Through Rate, the Class A-4 IO
Pass-Through Rate, on the Class A-1A ARM Principal Balance, the Class A-1B ARM
Principal Balance, the Class A-l Principal Balance, the Class A-2 Principal
Balance, the Class A-3 Principal Balance, the Class A-3A Principal Balance, the
Class A-4 IO Notional Principal Amount, respectively, (ii) as to Class M-1
Certificates, the Class M-1 Principal Balance, together with any Unpaid Class
M-1 Interest Shortfall, any Unpaid Class M-1 Liquidation Loss Interest Shortfall
and one month's interest at the Class M-1 Pass-Through Rate on the Class M-1
Principal Balance, (iii) as to Class M-2 Certificates, the Class M-2 Principal
Balance, together with any Unpaid Class M-2 Interest Shortfall, any Unpaid Class
M-2 Liquidation Loss Interest Shortfall and one month's interest at the Class
M-2 Pass-Through Rate on the Class M-2 Principal Balance, (iv) as to Class B-1
Certificates, the Class B-1 Principal Balance, together with any Unpaid Class
B-1 Interest Shortfall, any Unpaid Class B-1 Liquidation Loss Interest Shortfall
and one month's interest at the Class B-1 Pass-Through Rate on the Class B-1
Principal Balance and (v) as to Class B-2 Certificates, the Class B-2 Principal
Balance, together with any Unpaid Class B-2 Interest Shortfall and one month's
interest at the Class B-2 Pass- Through Rate on the Class B-2 Principal Balance;
and (2) as to the Class C Certificates, the amount which remains on deposit in
the Certificate Account (other than amounts retained to meet claims) after
application pursuant to clause (1) above; provided, that, any Class B-2 Guaranty
Payment deposited in the Certificate Account shall be distributed only to the
Class B-2 Certificateholders. The distribution on the Final Payment Date
pursuant to this Section 12.04 shall be in lieu of the distribution otherwise
required to be made on such Payment Date in respect of each Class of
Certificates and the Class C Certificates.
d. In the event that all of the Certificateholders and the Class C
Certificateholders do not surrender their Certificates and the Class C
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Originator shall give a second written
notice to the remaining Certificateholders and the Class C Certificateholders to
surrender their Certificates and the Class C Certificates for cancellation and
receive the final distribution with respect thereto. If within three months
after the second notice all the Certificates and the Class C Certificates shall
not have been surrendered for cancellation, the Originator shall transfer to
itself all amounts remaining on deposit in the Certificate Account, to hold in
trust for Certificateholders and the Class C Certificateholders who have not
surrendered their Certificates or the Class C Certificates, as the case may be,
for cancellation, together with the final record list
12-3
<PAGE>
of Certificateholders and the Class C Certificateholders, and the Originator
shall take appropriate steps, or may appoint an agent to take appropriate steps,
to contact the remaining Certificateholders concerning surrender of their
Certificates and to contact the Class C Certificateholders concerning their
surrender of their Class C Certificates, and the cost thereof shall be paid out
of the funds and other assets which remain in trust hereunder.
SECTION 12.05. Acts of Certificateholders and Class C
Certificateholders.
a. Except as otherwise specifically provided herein, whenever
Certificateholder approval, authorization, direction, notice, consent, waiver,
or other action is required hereunder, such approval, authorization, direction,
notice, consent, waiver or other action shall be deemed to have been given or
taken on behalf of, and shall be binding upon, all Certificateholders if agreed
to by Holders of Certificates representing, in the aggregate, 51% or more of the
Aggregate Certificate Principal Balance.
b. Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Certificateholders or the Class C Certificateholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Certificateholders or the Class C Certificateholders in person or by an
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, where required, to the Servicer. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Agreement and (subject to Section 11.01)
conclusive in favor of the Trustee, the Servicer and the Originator if made in
the manner provided in this Section.
c. The fact and date of the execution by any Certificateholder or the
Class C Certificateholders of any such instrument or writing may be proved in
any reasonable manner which the Trustee deems sufficient.
d. The ownership of Certificates and the Class C Certificates shall be
proved by the Certificate Register.
e. Any request, demand, authorization, direction, notice, consent,
waiver or other act by a Certificateholder or the Class C Certificateholders
shall bind every holder of every Certificate or the Class C Certificates, as
applicable, 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, the Servicer or the Originator in reliance thereon, whether or
not notation of such action is made upon such Certificates or Class C
Certificates.
f. The Trustee may require such additional proof of any matter referred
to in this Section as it shall deem necessary.
12-4
<PAGE>
SECTION 12.06. Calculations. Except as otherwise provided in this
Agreement, all interest rate and basis point calculations under this Agreement
will be made on the basis of a 360-day year and twelve 30-day months and will be
carried out to at least three decimal places.
SECTION 12.07. Assignment or Delegation by Company. Except as
specifically authorized hereunder, and except for its obligations as Servicer
which are dealt with under Article V and Article VII, the Originator may not
convey and assign or delegate any of its rights or obligations hereunder absent
the prior written consent of Holders of Certificates representing, in the
aggregate, 66-2/3% or more of the Aggregate Certificate Principal Balance, and
any attempt to do so without such consent shall be void. Notwithstanding the
foregoing, the Originator may not delegate its obligations under Section 8.03
absent (a) the prior written consent of Holders of Certificates representing, in
the aggregate, 66-2/3% or more of the Aggregate Certificate Principal Balance,
and the prior written confirmation of S&P and Fitch that the rating of the
Certificates will not be lowered or withdrawn following such delegation, or (b)
the prior written consent of all of the Certificateholders, and any attempt to
do so without such consent shall be void. It is understood that the foregoing
does not prohibit the pledge or assignment by the Originator of any right to
payment pursuant to Article VIII.
SECTION 12.08. Amendment.
a. This Agreement may be amended from time to time by the Originator,
the Servicer and the Trustee, without the consent of any of the
Certificateholders or the Class C Certificateholders, to correct manifest error,
to cure any ambiguity, to correct or supplement any provisions herein which may
be inconsistent with any other provisions herein, as the case may be, to make
such changes as are necessary to maintain the status of the Trust as a "real
estate mortgage investment conduit" under the REMIC Provisions of the Code or to
otherwise effectuate the benefits of such status to the Trust, the
Certificateholders or the Class C Certificateholders, including, without
limitation, to implement any provision permitted by law that would enable a
REMIC to avoid the imposition of any tax, or to make any other provisions with
respect to matters or questions arising under this Agreement that shall not be
inconsistent with the provisions of this Agreement; provided, however, that such
action shall not, as evidenced by an Opinion of Counsel for the Servicer,
adversely affect in any material respect the interests of any Certificateholder.
b. This Agreement may also be amended from time to time by the
Servicer, the Originator and the Trustee, with the consent of Holders of
Certificates representing, in the aggregate, 66-2/3% or more of the Aggregate
Certificate Principal Balance, 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 such Certificateholders; provided,
however, that no such amendment shall (a) reduce in any manner the amount of, or
delay the timing of, collections of payments on the Loans or distributions which
are required to be made on any Certificate, (b) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the holders of
all Certificates then outstanding, (c) result in the
12-5
<PAGE>
disqualification of the Trust as a REMIC under the Code, (d) adversely affect
the status of either of the Master REMIC or the Subsidiary REMIC as a REMIC or
the status of the Certificates or the Subsidiary REMIC Regular Interests as
"regular interests" in the Master REMIC or Subsidiary REMIC, respectively, or
(e) cause any tax (other than any tax imposed on "net income from foreclosure
property" under Section 860G(c)(1) of the Code that would be imposed without
regard to such amendment) to be imposed on the Trust, including, without
limitation, any tax imposed on "prohibited transactions" under Section
860F(a)(1) of the Code or on "contributions after the startup date" under
Section 860G(d)(1) of the Code. This Agreement may not be amended without the
consent of the Class C Certificateholders, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement which would modify in any manner the rights of the Class C
Certificateholders.
c. This Agreement shall not be amended under this Section without the
consent of 100% of the Certificateholders and the Class C Certificateholders if
such amendment would result in the disqualification of the Trust as a REMIC
under the Code.
d. Concurrently with the solicitation of any consent pursuant to this
Section 12.08, the Trustee shall furnish written notification to S&P and Fitch.
Promptly after the execution of any amendment or consent pursuant to this
Section 12.08, the Trustee shall furnish written notification of the substance
of such amendment to S&P, Fitch, each Certificateholder and the Class C
Certificateholders.
e. It shall not be necessary for the consent of Certificateholders and
the Class C Certificateholders under this Section 12.08 to approve the
particular form of any proposed amendment, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by
Certificateholders and the Class C Certificateholders shall be subject to such
reasonable requirements as the Trustee may prescribe.
f. The Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's own rights, duties or immunities under
this Agreement or otherwise.
g. In connection with any amendment pursuant to this Section, the
Trustee shall be entitled to receive an Opinion of Counsel to the Servicer to
the effect that such amendment is authorized or permitted by this Agreement.
h. Upon the execution of any amendment or consent pursuant to this
Section 12.08, this Agreement shall be modified in accordance therewith, and
such amendment or consent shall form a part of this Agreement for all purposes,
and every Certificateholder or the Class C Certificateholders hereunder shall be
bound thereby.
i. In the absence of the consent described in subsection (d) of this
Section, in connection with any amendment pursuant to this Section, the Trustee
shall have received an
12-6
<PAGE>
unqualified Opinion of Counsel, the expense of which shall not be an expense of
the Trust, stating that any such amendment (i) will not adversely affect the
status of either of the Master REMIC or the Subsidiary REMIC as a REMIC or the
status of the Certificates or the Subsidiary REMIC Regular Interests as "regular
interests" therein, and (ii) will not cause any tax (other than any tax imposed
on "net income from foreclosure property" under Section 860G(c)(1) of the Code
that would be imposed without regard to such amendment) to be imposed on the
Trust, including, without limitation, any tax imposed on "prohibited
transactions" under Section 860F(a)(1) of the Code or on "contributions after
the startup date" under Section 860G(d)(1) of the Code.
SECTION 12.09. Notices. All communications and notices pursuant hereto
to the Seller, the Servicer, the Originator, the Trustee, S&P and Fitch shall be
in writing and delivered or mailed to it at the appropriate following address:
If to the Seller:
Conseco Finance Securitizations Corp.
300 Landmark Towers
345 St. Peter Street
St. Paul, Minnesota 55102-1639
Attention: Chief Financial Officer
Telecopier Number: (651) 293-5746
If to the Servicer:
Green Tree Financial Corporation
1100 Landmark Towers
345 St. Peter Street
St. Paul, Minnesota 55102-1639
Attention: Chief Financial Officer
Telecopier Number: (651) 293-5746
If to the Trustee:
U.S. Bank Trust National Association
Corporate Trust Department
180 East Fifth Street
Second Floor
St. Paul, Minnesota 55101
Attention: Tamara Schultz-Fugh
Telecopier Number: (651) 244-0089
12-7
<PAGE>
If to S&P:
Standard & Poor's
55 Water Street
New York, New York 10041
Attention: Mortgage Surveillance
If to Fitch:
Fitch IBCA, Inc.
One State Street Plaza
New York, New York 10004
Attention: Steven Lei
or at such other address as the party may designate by notice to the other
parties hereto, which notice shall be effective when received.
All communications and notices pursuant hereto to a Certificateholder
or the Class C Certificateholders shall be in writing and delivered or mailed at
the address shown in the Certificate Register.
SECTION 12.10. 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 12.11. Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 12.12. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Minnesota.
12-8
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized this ___________
day of __________________, 1999.
GREEN TREE FINANCIAL CORPORATION
By:
------------------------------------------
Phyllis A. Knight
Senior Vice President and Treasurer
CONSECO FINANCE SECURITIZATIONS
CORP.
By:
------------------------------------------
Phyllis A. Knight
Senior Vice President and Treasurer
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Trustee
By:
------------------------------------------
Laurie A. Howard
Vice President
12-9
<PAGE>
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me this day of
_______________, 1999, by ____________________, of Green Tree Financial
Corporation, a Delaware corporation, on behalf of the corporation.
_______________________________________
Notary Public
[SEAL]
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 1999, by Laurie A. Howard, of U.S. Bank Trust National
Association, a national banking association, on behalf of the national banking
association.
_______________________________________
Notary Public
[SEAL]
12-10
<PAGE>
EXHIBIT A-1
-----------
FORM OF CLASS A CERTIFICATE
---------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE.
Class A-[1][2][3] No.
(Senior)
Cut-off Date:
as defined in the Pooling and Pass-Through Rate:________%
Servicing Agreement
dated September 1, 1999 Denomination: $_______________
First Payment Date: Aggregate Denomination of
October 15, 1999 all Class A-[1][2][3]
Certificates: $_______________
Servicer: Final Scheduled Payment Date:
Green Tree Financial Corporation _____________ (or if such day is not a
Business Day, then the next succeeding
Business Day)
CUSIP:_________
CERTIFICATE FOR HOME EQUITY LOANS
SERIES 1999-F, CLASS A-[1][2][3] (SENIOR)
-----------------------------------------
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
GREEN TREE FINANCIAL CORPORATION OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT
SET FORTH IN THE AGREEMENT.
This certifies that Cede & Co. is the registered owner of the undivided
Percentage Interest represented by the original principal amount set forth above
in the Certificates for Home Equity Loans, Series 1999-F, Class A-[1][2][3]
issued by Home Equity Loan Trust 1999-F (the "Trust"), which includes among its
assets a pool of closed-end home equity loans (the "Loans") (including, without
limitation, all mortgages, deeds of trust and security deeds relating to such
Loans and any and all rights to receive payments due on the Loans after the
applicable Cut-off
A-1-1
<PAGE>
Date or Subsequent Cut-off Date). The Trust has been created pursuant to a
Pooling and Servicing Agreement (the "Agreement"), dated as of September 1,
1999, among Green Tree Financial Corporation, as Originator, Servicer and
Guarantor (the "Originator"), Conseco Finance Securitizations Corp., as Seller
(the "Seller"), and U.S. Bank Trust National Association, as Trustee of the
Trust (the "Trustee"). This Certificate is one of the Certificates described in
the Agreement and is issued pursuant and subject to the Agreement. By acceptance
of this Certificate the holder assents to and becomes bound by the Agreement. To
the extent not defined herein, all capitalized terms have the meanings assigned
to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the fifteenth
day (or if such day is not a Business Day, the next succeeding Business Day)
(the "Payment Date") of each calendar month commencing in October 1999, so long
as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class A-[1][2][3] Certificates with an aggregate
Percentage Interest of at least 5% of the Class A-[1][2][3] Certificates and so
desires, by wire transfer pursuant to instructions delivered to the Trustee at
least 10 days prior to such Payment Date) to the registered Certificateholder at
the address appearing on the Certificate Register as of the Business Day
immediately preceding such Payment Date, in an amount equal to the
Certificateholder's Percentage Interest of the Class A-[1][2][3] Distribution
Amount for such Payment Date. Distributions of interest and principal on the
Class A-[1][2][3] Certificates will be made primarily from amounts available in
respect of the Loans. The final scheduled Payment Date of this Certificate is
_________________ or the next succeeding Business Day if such _________________
is not a Business Day.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that the Trustee in its individual capacity is not
personally liable to the Certificateholder for any amounts payable under this
Certificate or the Agreement or, except as expressly provided in the Agreement,
subject to any liability under the Agreement. By acceptance of this Certificate,
the Certificateholder agrees to disclosure of his, her or its name and address
to other Certificateholders under the conditions specified in the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all amendments
thereto will be provided to any Certificateholder free of charge upon a written
request to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register of the Certificate Registrar upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
Minneapolis or St. Paul, Minnesota, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder
A-1-2
<PAGE>
hereof or his or her attorney duly authorized in writing, and thereupon one or
more new Certificates evidencing the same aggregate Percentage Interest will be
issued to the designated transferee or transferees.
[Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the Trustee or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.]
The Originator, the Seller, the Servicer, the Trustee, the Paying Agent and
the Certificate Registrar and any agent of the Originator, the Seller, the
Servicer, the Trustee, the Paying Agent or the Certificate Registrar may treat
the person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Originator, the Seller, the Servicer, the Trustee,
the Paying Agent, the Certificate Registrar nor any such agent shall be affected
by any notice to the contrary.
A-1-3
<PAGE>
IN WITNESS WHEREOF, Home Equity Loan Trust 1999-F has caused this
Certificate to be duly executed by the manual signature of a duly authorized
officer of the Trustee.
Dated:________________ HOME EQUITY LOAN TRUST 1999-F
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
By:_______________________________
Authorized Officer
A-1-4
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto the within Certificate for Home Equity Loans, Series 1999-F, and does
hereby irrevocably constitute and appoint _______________ Attorney to transfer
the said certificate on the Certificate Register maintained by the Trustee, with
full power of substitution in the premises.
Dated:__________________ By:_____________________
Signature
A-1-5
<PAGE>
EXHIBIT A-2
-----------
FORM OF CLASS A-3A CERTIFICATE
------------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE.
Class A-3A No.
(Senior)
Cut-off Date:
as defined in the Pooling and Pass-Through Rate:_______________%
Servicing Agreement
dated September 1, 1999 Denomination: $_________________
First Payment Date: Aggregate Denomination of
October 15, 1999 all Class A-3A
Certificates: $_________________
Servicer: Final Scheduled Payment Date:
Green Tree Financial Corporation ________________ (or if such day is not a
Business Day, then the next succeeding
Business Day)
CUSIP:___________
CERTIFICATE FOR HOME EQUITY LOANS
SERIES 1999-F, CLASS A-3A (SENIOR)
----------------------------------
BY ACCEPTANCE OF THIS CERTIFICATE, THE PURCHASER OF THE CERTIFICATE OR ANY
INTEREST HEREIN BY, ON BEHALF OF OR WITH PLAN ASSETS OF ANY EMPLOYEE BENEFIT
PLAN, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR THAT IS DESCRIBED IN SECTION 4975(e)(1) OF THE CODE (EACH,
A "PLAN") ACKNOWLEDGES THAT EITHER THE CERTIFICATEHOLDER HAS DELIVERED TO THE
ORIGINATOR AND THE TRUSTEE AT ITS OWN EXPENSE AN OPINION OF COUNSEL
(SATISFACTORY TO THE ORIGINATOR AND THE TRUSTEE) THAT THE PURCHASE AND HOLDING
OF THIS CERTIFICATE BY SUCH PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST
BEING DEEMED TO BE "PLAN ASSETS"
A-2-1
<PAGE>
AND SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE AND
WILL NOT SUBJECT THE TRUSTEE, THE ORIGINATOR, THE SELLER, OR THE SERVICER TO ANY
OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT, OR, IF
NO SUCH OPINION IS DELIVERED, IS DEEMED TO REPRESENT TO THE TRUSTEE, THE
ORIGINATOR AND THE SERVICER EITHER (I) THAT THE PERSON ACQUIRING THE CERTIFICATE
IS NEITHER A PLAN, NOR ACTING ON BEHALF OF A PLAN, SUBJECT TO ERISA OR TO
SECTION 4975 OF THE CODE, OR (II) THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE BY SUCH PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED
TO BE PLAN ASSETS AND SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA
AND THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE ORIGINATOR, THE SELLER, OR
THE SERVICER TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN
THE AGREEMENT.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
GREEN TREE FINANCIAL CORPORATION OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT
SET FORTH IN THE AGREEMENT.
This certifies that Cede & Co. is the registered owner of the undivided
Percentage Interest represented by the original principal amount set forth above
in the Certificates for Home Equity Loans, Series 1999-F, Class A-3A issued by
Home Equity Loan Trust 1999-F (the "Trust"), which includes among its assets a
pool of closed-end home equity loans (the "Loans") (including, without
limitation, all mortgages, deeds of trust and security deeds relating to such
Loans and any and all rights to receive payments due on the Loans after the
applicable Cut-off Date or Subsequent Cut-off Date). The Trust has been created
pursuant to a Pooling and Servicing Agreement (the "Agreement"), dated as of
September 1, 1999, among Green Tree Financial Corporation, as Originator,
Servicer and Guarantor (the "Originator"), Conseco Finance Securitizations
Corp., as Seller (the "Seller"), and U.S. Bank Trust National Association, as
Trustee of the Trust (the "Trustee"). This Certificate is one of the
Certificates described in the Agreement and is issued pursuant and subject to
the Agreement. By acceptance of this Certificate the holder assents to and
becomes bound by the Agreement. To the extent not defined herein, all
capitalized terms have the meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the fifteenth
day (or if such day is not a Business Day, the next succeeding Business Day)
(the "Payment Date") of each calendar month commencing in October 1999, so long
as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class A-3A Certificates with an aggregate Percentage
Interest of at least 5% of the Class A-3A Certificates and so desires, by wire
transfer pursuant to instructions delivered to the Trustee at least 10 days
prior to such Payment Date) to the registered Certificateholder at the address
appearing on the Certificate Register as of the Business Day immediately
preceding such Payment Date, in an amount equal to the Certificateholder's
Percentage Interest of the Class A-[3A] Distribution Amount for such
A-2-2
<PAGE>
Payment Date. Distributions of interest and principal on the Class A-[3A]
Certificates will be made primarily from amounts available in respect of the
Loans. The final scheduled Payment Date of this Certificate is _________________
or the next succeeding Business Day if such _________________ is not a Business
Day.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that the Trustee in its individual capacity is not
personally liable to the Certificateholder for any amounts payable under this
Certificate or the Agreement or, except as expressly provided in the Agreement,
subject to any liability under the Agreement. By acceptance of this Certificate,
the Certificateholder agrees to disclosure of his, her or its name and address
to other Certificateholders under the conditions specified in the Agreement.
No transfer of this Certificate or any interest herein to any employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or that is described in Section 4975(e)(1) of the
Code or to any person or entity purchasing on behalf of, or with assets of, such
an employee benefit plan (each, a "Plan") will be registered unless the
transferee, at its expense, delivers to the Originator and the Trustee an
opinion of counsel (satisfactory to the Originator and the Trustee) that the
purchase and holding of this Certificate by such Plan will not result in the
assets of the Trust being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA and the Code and will not subject the
Trustee, the Originator or the Servicer to any obligation or liability in
addition to those undertaken in the Agreement. Unless such opinion is delivered,
each person acquiring this Certificate will be deemed to represent to the
Trustee, the Originator, the Seller, and the Servicer either (i) that such
person is neither a Plan, nor acting on behalf of a Plan, subject to ERISA or to
Section 4975 of the Code, or (ii) that the purchase and holding of this
Certificate by such Plan will not result in the assets of the Trust being deemed
to be Plan assets and subject to the prohibited transaction provisions of ERISA
and the Code and will not subject the Trustee, the Originator, the Seller, or
the Servicer to any obligation or liability in addition to those undertaken in
the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all amendments
thereto will be provided to any Certificateholder free of charge upon a written
request to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register of the Certificate Registrar upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
Minneapolis or St. Paul, Minnesota, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder hereof or his or her attorney duly authorized in writing,
and thereupon one or more new
A-2-3
<PAGE>
Certificates evidencing the same aggregate Percentage Interest will be issued to
the designated transferee or transferees.
[Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the Trustee or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.]
The Originator, the Seller, the Servicer, the Trustee, the Paying Agent and
the Certificate Registrar and any agent of the Originator, the Seller, the
Servicer, the Trustee, the Paying Agent or the Certificate Registrar may treat
the person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Originator, the Seller, the Servicer, the Trustee,
the Paying Agent, the Certificate Registrar nor any such agent shall be affected
by any notice to the contrary.
A-2-4
<PAGE>
IN WITNESS WHEREOF, Home Equity Loan Trust 1999-F has caused this
Certificate to be duly executed by the manual signature of a duly authorized
officer of the Trustee.
Dated:_____________ HOME EQUITY LOAN TRUST 1999-F
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
By:______________________________
Authorized Officer
A-2-5
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto the within Certificate for Home Equity Loans, Series 1999-F, and does
hereby irrevocably constitute and appoint ________________ Attorney to transfer
the said certificate on the Certificate Register maintained by the Trustee, with
full power of substitution in the premises.
Dated:______________ By:_____________________________
Signature
A-2-6
<PAGE>
EXHIBIT A-3
-----------
FORM OF CLASS A-1[A][B] ARM CERTIFICATE
---------------------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE.
Class A-1[A][B] ARM No.
(Senior)
Cut-off Date: Pass-Through Rate: Variable
as defined in the Pooling and Servicing rate equal to Class A-1[A] [B]
Agreement dated September 1, 1999 ARM Pass-Through Rate
Denomination: $_____________
First Payment Date: Aggregate Denomination of
October 15, 1999 all Class A-1[A][B] ARM
Certificates: $_____________
Servicer: Final Scheduled Payment Date:
Green Tree Financial Corporation _____________ (or if such day is not
a Business Day, then the next
succeeding Business Day)
CUSIP:____________
CERTIFICATE FOR HOME EQUITY LOANS
SERIES 1999-F, CLASS A-1[A][B] ARM (SENIOR)
-------------------------------------------
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
GREEN TREE FINANCIAL CORPORATION OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT
SET FORTH IN THE AGREEMENT.
This certifies that __________________ is the registered owner of the
undivided Percentage Interest represented by the original principal amount set
forth above in the Certificates for Home Equity Loans, Series 1999-F, Class
A-1[A][B] ARM issued by Home Equity Loan Trust 1999-F (the "Trust"), which
includes among its assets a pool of closed-end home equity loans (the "Loans")
(including, without limitation, all mortgages, deeds of trust and security deeds
relating to such Loans and any and all rights to receive payments due on the
Loans after the applicable
A-3-1
<PAGE>
Cut-off Date or Subsequent Cut-off Date). The Trust has been created pursuant to
a Pooling and Servicing Agreement (the "Agreement"), dated as of September 1,
1999, among Green Tree Financial Corporation, as Originator, Servicer and
Guarantor (the "Originator"), Conseco Finance Securitizations Corp., as Seller
(the "Seller") and U.S. Bank Trust National Association, as Trustee of the Trust
(the "Trustee"). This Certificate is one of the Certificates described in the
Agreement and is issued pursuant and subject to the Agreement. By acceptance of
this Certificate the holder assents to and becomes bound by the Agreement. To
the extent not defined herein, all capitalized terms have the meanings assigned
to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the fifteenth
day (or if such day is not a Business Day, the next succeeding Business Day)
(the "Payment Date") of each calendar month commencing in October 1999, so long
as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class A-1[A][B] ARM Certificates with an aggregate
Percentage Interest of at least 5% of the Class A-1[A][B] ARM Certificates and
so desires, by wire transfer pursuant to instructions delivered to the Trustee
at least 10 days prior to such Payment Date) to the registered Certificateholder
at the address appearing on the Certificate Register as of the Business Day
immediately preceding such Payment Date, in an amount equal to the
Certificateholder's Percentage Interest of the Class A-1[A][B] ARM Distribution
Amount for such Payment Date. Distributions of interest and principal on the
Class A-1 [A][B] ARM Certificates will be made primarily from amounts available
in respect of the Loans. The final scheduled Payment Date of this Certificate is
_________________ or the next succeeding Business Day if such _________________
is not a Business Day.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that the Trustee in its individual capacity is not
personally liable to the Certificateholder for any amounts payable under this
Certificate or the Agreement or, except as expressly provided in the Agreement,
subject to any liability under the Agreement. By acceptance of this Certificate,
the Certificateholder agrees to disclosure of his, her or its name and address
to other Certificateholders under the conditions specified in the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all amendments
thereto will be provided to any Certificateholder free of charge upon a written
request to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register of the Certificate Registrar upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
Minneapolis or St. Paul, Minnesota, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder
A-3-2
<PAGE>
hereof or his or her attorney duly authorized in writing, and thereupon one or
more new Certificates evidencing the same aggregate Percentage Interest will be
issued to the designated transferee or transferees.
[Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the Trustee or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.]
The Originator, the Seller, the Servicer, the Trustee, the Paying Agent and
the Certificate Registrar and any agent of the Originator, the Seller, the
Servicer, the Trustee, the Paying Agent or the Certificate Registrar may treat
the person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Originator, the Seller, the Servicer, the Trustee,
the Paying Agent, the Certificate Registrar nor any such agent shall be affected
by any notice to the contrary.
A-3-3
<PAGE>
IN WITNESS WHEREOF, Home Equity Loan Trust 1999-F has caused this
Certificate to be duly executed by the manual signature of a duly authorized
officer of the Trustee.
Dated:_____________ HOME EQUITY LOAN TRUST 1999-F
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
By:_________________________________
Authorized Officer
A-3-4
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________ the within Certificate for Home Equity Loans, Series
1999-F, and does hereby irrevocably constitute and appoint Attorney to transfer
the said certificate on the Certificate Register maintained by the Trustee, with
full power of substitution in the premises.
Dated:_____________ By:_________________________________
Signature
A-3-5
<PAGE>
EXHIBIT A-4
-----------
FORM OF CLASS A-4 IO CERTIFICATE
--------------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE.
Class A-4 IO No.
(Senior)
Cut-off Date: Pass-Through Rate:_______%
as defined in the Pooling and
Servicing Agreement dated Denomination: $__________
September 1, 1999
First Payment Date: Aggregate Class A-4 IO Original
Notional
October 15, 1999 Principal Amount: $75,000,000
Servicer: Final Scheduled Payment Date:
Green Tree Financial Corporation ______________ (or if such day is not
a Business Day, then the next succeeding
Business Day)
CUSIP:_________
CERTIFICATE FOR HOME EQUITY LOANS
SERIES 1999-F, CLASS A-4 IO (SENIOR)
------------------------------------
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
GREEN TREE FINANCIAL CORPORATION OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT
SET FORTH IN THE AGREEMENT.
This certifies that __________________ is the registered owner of the
undivided Percentage Interest represented by the Class A-4 IO Original Notional
Principal Amount set forth above in the Certificates for Home Equity Loans,
Series 1999-F, Class A-4 IO issued by Home Equity Loan Trust 1999-F (the
"Trust"), which includes among its assets a pool of closed-end home equity loans
(the "Loans") (including, without limitation, all mortgages, deeds of trust and
security deeds relating to such Loans and any and all rights to receive payments
due on the Loans
A-4-1
<PAGE>
after the applicable Cut-off Date or Subsequent Cut-off Date). The Trust has
been created pursuant to a Pooling and Servicing Agreement (the "Agreement"),
dated as of September 1, 1999, among Green Tree Financial Corporation, as
Originator, Servicer and Guarantor (the "Originator"), Conseco Finance
Securitizations Corp., as Seller (the "Seller") and U.S. Bank Trust National
Association, as Trustee of the Trust (the "Trustee"). This Certificate is one of
the Certificates described in the Agreement and is issued pursuant and subject
to the Agreement. By acceptance of this Certificate the holder assents to and
becomes bound by the Agreement. To the extent not defined herein, all
capitalized terms have the meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the fifteenth
day (or if such day is not a Business Day, the next succeeding Business Day)
(the "Payment Date") of each calendar month commencing in October 1999, so long
as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class A-4 IO Certificates with an aggregate Percentage
Interest of at least 5% of the Class A-4 IO Certificates and so desires, by wire
transfer pursuant to instructions delivered to the Trustee at least 10 days
prior to such Payment Date) to the registered Certificateholder at the address
appearing on the Certificate Register as of the Business Day immediately
preceding such Payment Date, in an amount equal to the Certificateholder's
Percentage Interest of the Class A-4 IO Distribution Amount for such Payment
Date. Distributions of interest on the Class A-4 IO Certificates will be made
primarily from amounts available in respect of the Loans. The final scheduled
Payment Date of this Certificate is _________________ or the next succeeding
Business Day if such _______________ is not a Business Day.
This Certificate is an interest only Certificate. THE HOLDER OF THIS
CERTIFICATE SHALL NOT BE ENTITLED TO ANY DISTRIBUTIONS OF PRINCIPAL WITH RESPECT
TO THE LOANS.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that the Trustee in its individual capacity is not
personally liable to the Certificateholder for any amounts payable under this
Certificate or the Agreement or, except as expressly provided in the Agreement,
subject to any liability under the Agreement. By acceptance of this Certificate,
the Certificateholder agrees to disclosure of his, her or its name and address
to other Certificateholders under the conditions specified in the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all amendments
thereto will be provided to any Certificateholder free of charge upon a written
request to the Trustee.
A-4-2
<PAGE>
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register of the Certificate Registrar upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
Minneapolis or St. Paul, Minnesota, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder hereof or his or her attorney duly authorized in writing,
and thereupon one or more new Certificates evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
[Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the Trustee or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.]
The Originator, the Seller, the Servicer, the Trustee, the Paying Agent and
the Certificate Registrar and any agent of the Originator, the Seller, the
Servicer, the Trustee, the Paying Agent or the Certificate Registrar may treat
the person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Originator, the Seller, the Servicer, the Trustee,
the Paying Agent, the Certificate Registrar nor any such agent shall be affected
by any notice to the contrary.
A-4-3
<PAGE>
IN WITNESS WHEREOF, Home Equity Loan Trust 1999-F has caused this
Certificate to be duly executed by the manual signature of a duly authorized
officer of the Trustee.
Dated:______________ HOME EQUITY LOAN TRUST 1999-F
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
By:______________________________
Authorized Officer
A-4-4
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________ the within Certificate for Home Equity Loans, Series
1999-F, and does hereby irrevocably constitute and appoint Attorney to transfer
the said certificate on the Certificate Register maintained by the Trustee, with
full power of substitution in the premises.
Dated:_____________ By:_____________________________
Signature
A-4-5
<PAGE>
EXHIBIT B
---------
FORM OF CLASS M CERTIFICATE
---------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES [AND CLASS M-1 CERTIFICATES] AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
Class M-[1][2] No.
(Subordinate)
Cut-off Date: Pass-Through Rate:_________%
as defined in the Pooling and (or, if less, the Weighted Average
Servicing Agreement dated Loan Rate)
September 1, 1999
First Payment Date: Denomination: $______________
October 15, 1999
Servicer: Aggregate Denomination of
Green Tree Financial Corporation all Class M-[1][2] Certificates:
$_______________
Final Scheduled Payment Date:
(or if such day is not a Business Day,
then the next succeeding Business Day)
CUSIP:_____________
CERTIFICATE FOR HOME EQUITY LOANS
SERIES 1999-F, CLASS M-[1][2] (SUBORDINATE)
-------------------------------------------
BY ACCEPTANCE OF THIS CERTIFICATE, THE PURCHASER OF THE CERTIFICATE OR ANY
INTEREST HEREIN BY, ON BEHALF OF OR WITH PLAN ASSETS OF ANY EMPLOYEE BENEFIT
PLAN THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR THAT
B-1
<PAGE>
IS DESCRIBED IN SECTION 4975(e)(1) OF THE CODE (EACH, A "PLAN") ACKNOWLEDGES
THAT EITHER THE CERTIFICATEHOLDER HAS DELIVERED TO THE ORIGINATOR AND THE
TRUSTEE AT ITS OWN EXPENSE AN OPINION OF COUNSEL (SATISFACTORY TO THE ORIGINATOR
AND THE TRUSTEE) THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY SUCH PLAN
WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE AND WILL
NOT SUBJECT THE TRUSTEE, THE ORIGINATOR, THE SELLER OR THE SERVICER TO ANY
OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT, OR, IF
NO SUCH OPINION IS DELIVERED, IS DEEMED TO REPRESENT TO THE TRUSTEE, THE
ORIGINATOR AND THE SERVICER EITHER (I) THAT THE PERSON ACQUIRING THE CERTIFICATE
IS NEITHER A PLAN, NOR ACTING ON BEHALF OF A PLAN, SUBJECT TO ERISA OR TO
SECTION 4975 OF THE CODE, OR (II) THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE BY SUCH PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED
TO BE PLAN ASSETS AND SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA
AND THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE ORIGINATOR, THE SELLER OR THE
SERVICER TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
GREEN TREE FINANCIAL CORPORATION OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT
SET FORTH IN THE AGREEMENT.
This certifies that _____________ is the registered owner of the undivided
Percentage Interest represented by the original principal amount set forth above
in the Certificates for Home Equity Loans, Series 1999-F, Class M-[1][2] issued
by Home Equity Loan Trust 1999-F (the "Trust"), which includes among its assets
a pool of closed-end home equity loans (the "Loans") (including, without
limitation, all mortgages, deeds of trust and security deeds relating to such
Loans and any and all rights to receive payments due on the Loans after the
applicable Cut-off Date or Subsequent Cut-off Date. The Trust has been created
pursuant to a Pooling and Servicing Agreement (the "Agreement"), dated as of
September 1, 1999, among Green Tree Financial Corporation, as Originator,
Servicer and Guarantor (the "Originator"), Conseco Finance Securitization Corp.,
as Seller (the "Seller") and U.S. Bank Trust National Association, as Trustee of
the Trust (the "Trustee"). This Certificate is one of the Certificates described
in the Agreement and is issued pursuant and subject to the Agreement. By
acceptance of this Certificate the holder assents to and becomes bound by the
Agreement. To the extent not defined herein, all capitalized terms have the
meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the fifteenth
day (or if such day is not a Business Day, the next succeeding Business Day)
(the "Payment Date") of each calendar month commencing in October 1999, so long
as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class M-[1][2] Certificates with an aggregate
B-2
<PAGE>
Percentage Interest of at least 5% of the Class M-[1][2] Certificates and
so desires, by wire transfer pursuant to instructions delivered to the Trustee
at least 10 days prior to such Payment Date) to the registered Certificateholder
at the address appearing on the Certificate Register as of the Business Day
immediately preceding such Payment Date, in an amount equal to the
Certificateholder's Percentage Interest of the Class M-[1][2] Distribution
Amount and any Additional Principal Distribution Amount for such Payment Date.
Distributions of interest and principal on the Class M-[1][2] Certificates will
be made primarily from amounts available in respect of the Loans. The final
scheduled Payment Date of this Certificate is ________________ or the next
succeeding Business Day if such ________________ is not a Business Day.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the
Agreement, for payment hereunder and that the Trustee in its individual capacity
is not personally liable to the Certificateholder for any amounts payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement. By acceptance of this
Certificate, the Certificateholder agrees to disclosure of his, her or its name
and address to other Certificateholders under the conditions specified in the
Agreement.
No transfer of this Certificate or any interest herein to any employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or that is described in Section 4975(e)(1) of the
Code or to any person or entity purchasing on behalf of, or with assets of, such
an employee benefit plan (each, a "Plan") will be registered unless the
transferee, at its expense, delivers to the Originator and the Trustee an
opinion of counsel (satisfactory to the Originator and the Trustee) that the
purchase and holding of this Certificate by such Plan will not result in the
assets of the Trust being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA and the Code and will not subject the
Trustee, the Originator or the Servicer to any obligation or liability in
addition to those undertaken in the Agreement. Unless such opinion is delivered,
each person acquiring this Certificate will be deemed to represent to the
Trustee, the Originator, the Seller and the Servicer either (i) that such person
is neither a Plan, nor acting on behalf of a Plan, subject to ERISA or to
Section 4975 of the Code, or (ii) that the purchase and holding of this
Certificate by such Plan will not result in the assets of the Trust being deemed
to be Plan assets and subject to the prohibited transaction provisions of ERISA
and the Code and will not subject the Trustee, the Originator, the Seller or the
Servicer to any obligation or liability in addition to those undertaken in the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all amendments
thereto will be provided to any Certificateholder free of charge upon a written
request to the Trustee.
B-3
<PAGE>
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register of the Certificate Registrar upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
Minneapolis or St. Paul, Minnesota, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder hereof or his or her attorney duly authorized in writing,
and thereupon one or more new Certificates evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
[Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the Trustee or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.]
The Originator, the Seller, the Servicer, the Trustee, the Paying Agent and
the Certificate Registrar and any agent of the Originator, the Seller, the
Servicer, the Trustee, the Paying Agent or the Certificate Registrar may treat
the person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Originator, the Seller, the Servicer, the Trustee,
the Paying Agent, the Certificate Registrar nor any such agent shall be affected
by any notice to the contrary.
B-4
<PAGE>
IN WITNESS WHEREOF, Home Equity Loan Trust 1999-F has caused this
Certificate to be duly executed by the manual signature of a duly authorized
officer of the Trustee.
Dated:______________ HOME EQUITY LOAN TRUST 1999-F
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
By:____________________________
Authorized Officer
B-5
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________ the within Certificate for Home Equity Loans, Series 1999-F,
and does hereby irrevocably constitute and appoint ____________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:________________ By:___________________________
Signature
B-6
<PAGE>
EXHIBIT C
---------
FORM OF CLASS B-[1][2] CERTIFICATE
----------------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A[,] AND
THE CLASS M CERTIFICATES [AND THE CLASS B-1 CERTIFICATES] AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
Class B-[1][2] No.
(Subordinate)
Cut-off Date: Pass-Through Rate:_____%
as defined in the Pooling and [(or, if less, the Weighted Average
Servicing Agreement dated Loan Rate)]
September 1, 1999
First Payment Date: Denomination: $____________
October 15, 1999
Servicer: Aggregate Denomination of
Green Tree Financial Corporation all Class B-[1][2] Certificates:
$________________
Final Scheduled Payment Date:
__________________ (or if such day is not
a Business Day, then the next succeeding
Business Day)
CUSIP:___________________
CERTIFICATES FOR HOME EQUITY LOANS
SERIES 1999-F, CLASS B-[1][2] (SUBORDINATE)
-------------------------------------------
BY ACCEPTANCE OF THIS CERTIFICATE, THE PURCHASER OF THE CERTIFICATE OR ANY
INTEREST HEREIN BY, ON BEHALF OF OR WITH PLAN
C-1
<PAGE>
ASSETS OF ANY EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THAT IS DESCRIBED IN
SECTION 4975(e)(1) OF THE CODE (EACH, A "PLAN") ACKNOWLEDGES THAT EITHER THE
CERTIFICATEHOLDER HAS DELIVERED TO THE ORIGINATOR AND THE TRUSTEE AT ITS OWN
EXPENSE AN OPINION OF COUNSEL (SATISFACTORY TO THE ORIGINATOR AND THE TRUSTEE)
THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY SUCH PLAN WILL NOT RESULT
IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE AND WILL NOT SUBJECT THE
TRUSTEE, THE ORIGINATOR, THE SELLER OR THE SERVICER TO ANY OBLIGATION OR
LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT, OR, IF NO SUCH
OPINION IS DELIVERED, IS DEEMED TO REPRESENT TO THE TRUSTEE, THE ORIGINATOR AND
THE SERVICER EITHER (I) THAT THE PERSON ACQUIRING THE CERTIFICATE IS NEITHER A
PLAN, NOR ACTING ON BEHALF OF A PLAN, SUBJECT TO ERISA OR TO SECTION 4975 OF THE
CODE, OR (II) THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY SUCH PLAN
WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE PLAN ASSETS AND
SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE AND WILL
NOT SUBJECT THE TRUSTEE, THE ORIGINATOR, THE SELLER OR THE SERVICER TO ANY
OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
GREEN TREE FINANCIAL CORPORATION OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT
SET FORTH IN THE AGREEMENT.
This certifies that _________________ is the registered owner of the
undivided Percentage Interest represented by the original principal amount set
forth above in the Certificates for Home Equity Loans, Series 1999-F, Class
B-[1][2], issued by Home Equity Loan Trust 1999-F (the "Trust"), which includes
among its assets a pool of closed-end home equity loans (the "Loans")
(including, without limitation, all mortgages, deeds of trust and security deeds
relating to such Loans and any and all rights to receive payments due on the
Loans after the applicable Cut-off Date or the Subsequent Cut-off Date [and
payments due under the Class B-2 Limited Guaranty]. The Trust has been created
pursuant to a Pooling and Servicing Agreement (the "Agreement"), dated as of
September 1, 1999, among Green Tree Financial Corporation, as Servicer (the
"Company"), Conseco Finance Securitizations Corp., as Seller (the "Seller") and
U.S. Bank Trust National Association as Trustee of the Trust (the "Trustee").
This Certificate is one of the Certificates described in the Agreement and is
issued pursuant and subject to the Agreement. By acceptance of this Certificate
the holder assents to and becomes bound by the Agreement. To the extent not
defined herein, all capitalized terms have the meanings assigned to such terms
in the Agreement.
C-2
<PAGE>
The Agreement contemplates, subject to its terms, payment on the fifteenth
day (or if such day is not a Business Day, the next succeeding Business Day)
(the "Payment Date") of each calendar month commencing in October 1999, so long
as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class B-[1][2] Certificates with an aggregate Percentage
Interest of at least 5% of the Class B-[1][2] Certificates and so desires, by
wire transfer pursuant to instructions delivered to the Trustee at least 10 days
prior to such Payment Date) to the registered Certificateholder at the address
appearing on the Certificate Register as of the Business Day immediately
preceding such Payment Date, in an amount equal to the Certificateholder's
Percentage Interest of the Class B-[1][2] Distribution Amount and any Additional
Principal Distribution Amount [and any Class B-2 Guaranty Payment] for such
Payment Date. Distributions of interest and principal on the Class B-[1][2]
Certificates will be made primarily from amounts available in respect of the
Loans. The final scheduled Payment Date of this Certificate is ______________ or
the next succeeding Business Day if such _______________ is not a Business Day.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds in the Certificate Account [and the Class B-2
Limited Guaranty of the Guarantor], to the extent available for distribution to
the Certificateholder as provided in the Agreement, for payment hereunder and
that the Trustee in its individual capacity is not personally liable to the
Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
No transfer of this Certificate or any interest herein to any employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or that is described in Section 4975(e)(1) of the
Code or to any person or entity purchasing on behalf of, or with assets of, such
an employee benefit plan (each, a "Plan") will be registered unless the
transferee, at its expense, delivers to the Originator and the Trustee an
opinion of counsel (satisfactory to the Originator and the Trustee) that the
purchase and holding of this Certificate by such Plan will not result in the
assets of the Trust being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA and the Code and will not subject the
Trustee, the Originator or the Servicer to any obligation or liability in
addition to those undertaken in the Agreement. Unless such opinion is delivered,
each person acquiring this Certificate will be deemed to represent to the
Trustee, the Originator, the Seller and the Servicer either (i) that such person
is neither a Plan, nor acting on behalf of a Plan, subject to ERISA or to
Section 4975 of the Code, or (ii) that the purchase and holding of this
Certificate by such Plan will not result in the assets of the Trust being deemed
to be Plan assets and subject to the prohibited transaction provisions of ERISA
and the Code and will not subject the Trustee, the Originator, the Seller or the
Servicer to any obligation or liability in addition to those undertaken in the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds
C-3
<PAGE>
and duties evidenced hereby and the rights, duties and immunities of the
Trustee. Copies of the Agreement and all amendments thereto will be provided to
any Certificateholder free of charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register of the Certificate Registrar upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
Minneapolis or St. Paul, Minnesota, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder thereof or his or her attorney duly authorized in
writing, and thereupon one or more new Certificates evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
[Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the Trustee or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.]
The Originator, the Seller, the Servicer, the Trustee, the Paying Agent and
the Certificate Registrar and any agent of the Originator, the Seller, the
Servicer, the Trustee, the Paying Agent or the Certificate Registrar may treat
the person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Originator, the Seller, the Servicer, the Trustee,
the Paying Agent, the Certificate Registrar nor any such agent shall be affected
by any notice to the contrary.
C-4
<PAGE>
IN WITNESS WHEREOF, Home Equity Loan Trust 1999-F has caused this
Certificate to be duly executed by the manual signature of a duly authorized
officer of the Trustee.
Dated:______________ HOME EQUITY LOAN TRUST 1999-F
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
By:_____________________________
Authorized Officer
C-5
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto __________________ the within Certificate for Home Equity Loans, Series
1999-F, and does hereby irrevocably constitute and appoint __________________
Attorney to transfer the said certificate on the Certificate Register maintained
by the Trustee, with full power of substitution in the premises.
Dated:_________________ By:________________________
Signature
C-6
<PAGE>
EXHIBIT D
---------
FORM OF ASSIGNMENT
------------------
In accordance with the Pooling and Servicing Agreement (the "Agreement")
dated as of September 1, 1999, among the undersigned and U.S. Bank Trust
National Association as Trustee (the "Trustee"), the undersigned does hereby
transfer, convey and assign, set over and otherwise convey, without recourse, to
Home Equity Loan Trust 1999-F, created by the Agreement, to be held in trust as
provided in the Agreement, (i) all right, title and interest in the home equity
loans identified in the List of Loans attached to the Agreement (including,
without limitation, all related mortgages, deeds of trust and security deeds and
any and all rights to receive payments on or with respect to the Loans due after
the applicable Cut-off Date, (ii) all rights under any hazard, flood or other
individual insurance policy on the real estate securing a Loan for the benefit
of the creditor of such Initial Loan, (iii) all rights [Green Tree Financial
Corporation] [Conseco Finance Securitizations Corp.] may have against the
originating lender with respect to Initial Loans originated by a lender other
than [Green Tree Financial Corporation] [Conseco Finance Securitizations Corp.],
(iv) all rights of the Seller under the Transfer Agreement, (v) all rights under
the Errors and Omissions Protection Policy and the Fidelity Bond as such policy
and bond relate to the Initial Loans, (vi) all rights under any title insurance
policies, if applicable, on any of the properties securing Initial Loans, (vii)
all documents contained in the Loan Files relating to the Initial Loans, (viii)
amounts in the Certificate Account, the Capitalized Interest Account and the
Pre-Funding Account (including all proceeds of investments of the funds in
Certificate Account) and (ix) all proceeds and products of the foregoing.
This Assignment is made pursuant to and upon the representations and
warranties on the part of the undersigned contained in Article III of the
Agreement and no others. All undefined capitalized terms used in this Assignment
have the meanings given them in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed this ____ day of _________, 1999.
[GREEN TREE FINANCIAL CORPORATION]
[CONSECO FINANCE SECURITIZATIONS CORP.]
[Seal] By:____________________________
[Name]
[Title]
D-1
<PAGE>
EXHIBIT E
---------
FORM OF CERTIFICATE OF OFFICER
------------------------------
GREEN TREE FINANCIAL CORPORATION
The undersigned certifies that he is a [title] of Green Tree Financial
Corporation, a Delaware corporation (the "Company"), and that as such he is duly
authorized to execute and deliver this certificate on behalf of [Green Tree
Financial Corporation], [Conseco Finance Securitizations Corp.] in connection
with the Pooling and Servicing Agreement dated as of September 1, 1999 (the
"Agreement") among Green Tree Financial Corporation, Conseco Finance
Securitizations Corp. and U.S. Bank Trust National Association as Trustee (all
capitalized terms used herein without definition having the respective meanings
specified in the Agreement), and further certifies that:
(i) attached hereto as Exhibit I is a true and correct copy of the
Restated Certificate of Incorporation of [Green Tree Financial Corporation]
[Conseco Finance Securitizations Corp.], together with all amendments
thereto as in effect on the date thereof;
(ii) attached hereto as Exhibit II is a true and correct copy of the
Bylaws of [Green Tree Financial Corporation] [Conseco Finance
Securitizations Corp.], as amended, as in effect on the date hereof;
(iii) the representations and warranties of [Green Tree Financial
Corporation] [Conseco Finance Securitizations Corp.] contained in Sections
3.01 and 3.04 of the Agreement are true and correct on and as of the date
hereof and, to the best of his knowledge, the representations and
warranties of [Green Tree Financial Corporation] [Conseco Finance
Securitizations Corp.] contained in Sections 3.02 and 3.03 of the Agreement
are true and correct on and as of the date hereof;
(iv) no event with respect to [Green Tree Financial Corporation]
[Conseco Finance Securitizations Corp.] has occurred and is continuing
which would constitute an Event of Termination or an event that with notice
or lapse of time or both would become an Event of Termination under the
Agreement; and
(v) each of the agreements and conditions of [Green Tree Financial
Corporation] [Conseco Finance Securitizations Corp.] to be performed on or
before the date hereof pursuant to the Agreement have been performed in all
material respects.
IN WITNESS WHEREOF, I have affixed hereunto my signature this ___ day of
___________, 1999.
E-1
<PAGE>
________________________
[Name]
[Title]
E-2
<PAGE>
EXHIBIT F
---------
FORM OF OPINION OF COUNSEL FOR THE ORIGINATOR
---------------------------------------------
The opinion of Dorsey & Whitney LLP shall be to the effect that
(capitalized terms have the meanings set forth in the Pooling and Servicing
Agreement):
1. the Originator is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, with corporate power
to execute, deliver and perform its obligations under the Pooling and Servicing
Agreement (including the Class B-2 Limited Guaranty contained therein), the
Certificates and the Class C Certificates.
2. The Pooling and Servicing Agreement (including the Class B-2 Limited
Guaranty contained therein) has been duly authorized by all requisite corporate
action, duly executed and delivered by the Originator, and constitutes the valid
and binding obligation of the Originator enforceable in accordance with its
terms. The Certificates have been duly authorized by all requisite corporate
action and, when duly and validly executed by the Trustee in accordance with the
Pooling and Servicing Agreement, will be validly issued and outstanding and
entitled to the benefits of the Pooling and Servicing Agreement.
3. No consent, approval, authorization or order of any state or federal
court or governmental agency or body is required to be obtained by the
Originator for the consummation of the transactions contemplated by the Pooling
and Servicing Agreement, except such as may be required under blue sky laws
under any jurisdiction in connection with the offering of the Certificates by
the Underwriters pursuant to the Underwriting Agreement.
4. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as now in effect, and the Trust is not
required to be registered as an investment company under the Investment Company
Act of 1940.
5. Neither the transfer of the Loans to the Trustee acting on behalf of the
Trust, nor the assignment of the Originator's lien on the related real estate
which is the subject of a home equity loan, nor the issuance or sale of the
Certificates and the Class C Certificates, nor the execution and delivery of the
Pooling and Servicing Agreement, nor the consummation of any other of the
transactions contemplated in the Pooling and Servicing Agreement, nor the
fulfillment of the terms of the Certificates, the Class C Certificates or the
Pooling and Servicing Agreement by the Originator will conflict with, or result
in a breach, violation or acceleration of, or constitute a default under, any
term or provision of the Restated Certificate of Incorporation or Bylaws of the
Originator or of any indenture or other agreement or instrument known to us to
which the Originator is a party or by which it is bound, or result in a
violation of, or contravene the terms of any statute, order or regulation,
applicable to the Originator, of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it.
F-1
<PAGE>
6. There are no actions or proceedings pending, nor to the best of our
knowledge, are there any investigations pending or overtly threatened against
the Originator before any court, administrative agency or other tribunal (A)
asserting the invalidity of the Pooling and Servicing Agreement, the
Certificates, the Class C Certificates, the hazard or flood insurance policies
applicable to any Loans or the Errors and Omissions Protection Policy, (B)
seeking to prevent the issuance of the Certificates or the Class C Certificates
or the consummation of any of the transactions contemplated by the Pooling and
Servicing Agreement, (C) which is likely materially and adversely to affect the
performance by the Originator of its obligations under, or the validity or
enforceability of the Pooling and Servicing Agreement, the Certificates or the
Class C Certificates, or (D) seeking adversely to affect the federal income tax
attributes of the Certificates or the Class C Certificates described in the
Prospectus and the Prospectus Supplement under the heading "Certain Federal
Income Tax Consequences."
7. The transfer of the Loans to the Trust in accordance with Section 2.01
of the Pooling and Servicing Agreement would not be avoidable as a preferential
transfer under Section 547 of the United States Bankruptcy Code (11 U.S.C. ss.
547), as in effect on the date hereof, in the event that the Originator became a
debtor under the United States Bankruptcy Code.
8. Pursuant to the Pooling and Servicing Agreement the Originator has
transferred to the Trustee acting on behalf of the Trust all of the Originator's
right, title and interest in the Loans, free and clear of any and all other
assignments, encumbrances, options, rights, claims, liens or security interests
(except tax or possessory liens) that may affect the right of the Trustee in and
to such Loans, and has delivered the Loan Files to the Trustee or its custodian.
No filing or other action, other than the filing of a financing statement on
Form UCC-1 with the Secretary of State of the State of Minnesota identifying the
Loans as collateral and naming the Originator as debtor and the Trust as secured
party, and the filing of continuation statements as required by Section 4.01 of
the Pooling and Servicing Agreement, is necessary to perfect as against third
parties the assignment of the Loans by the Originator to the Trust. We have
separately provided you with our opinion concerning whether such assignment
could be recharacterized as a pledge rather than a sale in the event the
Originator became a debtor under the United States Bankruptcy Code. However, in
the event such assignment were characterized as a pledge securing a loan from
the Certificateholders to the Originator, it is our opinion that the Trustee
would be deemed to have a valid and perfected security interest in the Loans and
the proceeds thereof, which security interest would be prior to any other
security interest that may be perfected under the Uniform Commercial Code as in
effect in the State of Minnesota and over any "lien creditor" (as defined in
Minn. Stat. ss.336.9-301(3)) who becomes such after the Closing Date, except
that a subsequent purchaser of any Loan who gives new value and takes possession
thereof in the ordinary course of his business would have priority over the
Trustee's security interest in such Loan, if such purchaser acts without
knowledge that such Loan was subject to a security interest. We have assumed for
the purposes of this opinion that during the term of the Pooling and Servicing
Agreement the Trustee, or its custodian, shall maintain possession of the Loan
Files for the purpose of perfecting the assignment to the Trustee of the Loans.
We express no opinion
F-2
<PAGE>
with respect to the enforceability of any individual Loan or the existence of
any claims, rights or other matters in favor of any Obligor or the owner of any
financed home improvement.
9. In reliance upon certain representations and warranties set forth in the
Pooling and Servicing Agreement and assuming that the Originator and the Trustee
comply with the requirements of the Pooling and Servicing Agreement, including
the filing on behalf of each of the Master REMIC and Subsidiary REMIC of a
proper election to be taxed as a REMIC, as of the date hereof the Master REMIC
and Subsidiary REMIC created pursuant to the Pooling and Servicing Agreement
will each qualify as a REMIC. Further, the Certificates will evidence ownership
of the "regular interests" in the Master REMIC and the Class C Master
Certificates and Class C Subsidiary Certificates will evidence ownership of the
single class of "residual interest" in the Master REMIC and Subsidiary REMIC
respectively. For Minnesota income tax purposes, and subject to the foregoing
assumptions, and the provisions of Minnesota law as of the date hereof, the
Trust (excluding the Capitalized Interest Account and the Pre-Funding Account)
will not be subject to tax and the income of the Trust will be taxable to the
holders of interests therein, all in accordance with the provisions of the Code
concerning REMICs. Moreover, ownership of Certificates will not be a factor in
determining whether such owner is subject to Minnesota income taxes. Therefore,
if the owner of Certificates is not otherwise subject to Minnesota income or
franchise taxes in the State of Minnesota, such owner will not become subject to
such Minnesota taxes solely by virtue of owning Certificates.
10. The transfer of the Loans and the proceeds thereof by the Originator to
the Trustee on the date hereof pursuant to the Pooling and Servicing Agreement
would not be avoidable as a fraudulent transfer under the Uniform Fraudulent
Transfer Act as in effect in Minnesota on the date hereof (Minn. Stat. (SS)(SS)
513.41 through 513.51), nor, should the Originator become a debtor under the
United States Bankruptcy Code, as a fraudulent transfer under Section 548 of the
United States Bankruptcy Code (11 U.S.C. (SS) 548) as in effect on the date
hereof.
F-3
<PAGE>
EXHIBIT G
---------
FORM OF TRUSTEE'S ACKNOWLEDGMENT
--------------------------------
U.S. Bank Trust National Association, a national banking association
organized under the laws of the United States, acting as trustee (the "Trustee")
of Home Equity Loan Trust 1999-F (the "Trust") created pursuant to the Pooling
and Servicing Agreement dated as of September 1, 1999 among Green Tree Financial
Corporation, Conseco Finance Securitizations Corp. (the "Seller") and the
Trustee (the "Agreement") (all capitalized terms used herein without definition
having the respective meanings specified in the Agreement) acknowledges,
pursuant to Section 2.04 of the Agreement, that the Trustee has received the
following: (i) all right, title and interest in the home equity loans identified
in the List of Loans attached to the [Agreement] [Subsequent Transfer Instrument
of even date herewith] (the ["Initial Loans"] ["Subsequent Loans"]), including,
without limitation, all related mortgages and deeds of trust and any and all
rights to receive payments on or with respect to the [Initial/Subsequent] Loans
(due after the [Cut-off Date] [Subsequent Cut-off Date]), (ii) all rights under
any hazard, flood or other individual insurance policy on the real estate
securing [an Initial] [a Subsequent] Loan for the benefit of the creditor of
such [Initial/Subsequent] Loan, (iii) all rights the Seller may have against the
originating lender with respect to [Initial/Subsequent] Loans originated by a
lender other than the Seller, (iv) all rights under the Errors and Omissions
Protection Policy and the Fidelity Bond as such policy and bond relate to the
[Initial/Subsequent] Loans, (v) all rights under any title insurance policies,
if applicable, on any of the properties securing [Initial/Subsequent] Loans and
all rights under the Transfer Agreement dated September 1, 1999 between Green
Tree Financial Corporation and the Seller, (vi) all documents contained in the
Loan Files relating to the [Initial/Subsequent] Loans, [(vii) amounts in the
Certificate Account, the Capitalized Interest Account and the Pre-Funding
Account (including all proceeds of investments of funds in the Certificate
Account, (viii) the Class B-2 Limited Guaranty,] and (ix) all rights of Seller
under the Transfer Agreement, [(x)] all proceeds and products of the foregoing;
and declares that, directly or through a Custodian, it will hold all Loan Files
that have been delivered in trust, upon the trusts set forth in the Agreement
for the use and benefit of all Certificateholders and the holders of the Class C
Certificates.
[From Trustee or Custodian as applicable.] The Trustee acknowledges that it
has conducted a cursory review of the Loan Files and hereby confirms that except
as noted on the document exception listing attached hereto, each Loan File
contained (a) an original promissory note, (b) with respect to each Loan, an
original or a copy of the mortgage or deed of trust or similar evidence of a
lien on the related improved real estate, (c) in the case of Loans originated by
a lender other than the Seller, an original or a copy of an assignment of the
mortgage, deed of trust or security deed by the lender to the Seller, and (d)
any extension, modification or waiver agreement(s). The Trustee has not
otherwise reviewed the Loans and Loan Files for compliance with the terms of the
Pooling and Servicing Agreement.
G-1
<PAGE>
IN WITNESS WHEREOF, ______________ as Trustee has caused this
acknowledgment to be executed by its duly authorized officer and its corporate
seal affixed hereto as of this ____, day of ____________, 1999.
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
[Seal] By _____________________________
[Name]
[Title]
G-2
<PAGE>
EXHIBIT H
---------
FORM OF CERTIFICATE OF SERVICING OFFICER
----------------------------------------
GREEN TREE FINANCIAL CORPORATION
The undersigned certifies that he is a [title] of Green Tree Financial
Corporation, a Delaware corporation (the "Company"), and that as such he is duly
authorized to execute and deliver this certificate on behalf of the Company
pursuant to Section 6.02 of the Pooling and Servicing Agreement (the
"Agreement") dated as of September 1, 1999 between the Company and U.S. Bank
Trust National Association, as Trustee of Home Equity Loan Trust 1999-F (all
capitalized terms used herein without definition having the respective meanings
specified in the Agreement), and further certifies that:
1. The Monthly Report for the period from _________ to _________ attached
to this certificate is complete and accurate in accordance with the requirements
of Sections 6.01 and 6.02 of the Agreement; and
2. As of the date hereof, no Event of Termination or event that with notice
or lapse of time or both would become an Event of Termination has occurred.
IN WITNESS WHEREOF, I have affixed hereunto my signature this _______ day
of ___________, 1999.
GREEN TREE FINANCIAL CORPORATION
By: __________________________
[Name]
[Title]
H-1
<PAGE>
EXHIBIT I
---------
FORM OF CLASS C CERTIFICATE
---------------------------
[MASTER] [SUBSIDIARY]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS
B-1 CERTIFICATES AND THE CLASS B-2 CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 9.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE. THIS CERTIFICATE MAY ONLY BE TRANSFERRED TO A PERMITTED TRANSFEREE
(AS DEFINED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN); ANY SUCH
TRANSFER MUST ALSO SATISFY THE OTHER REQUIREMENTS OF SECTION 9.02 OF SUCH
POOLING AND SERVICING AGREEMENT.
BY ACCEPTANCE OF THIS CERTIFICATE, THE PURCHASER OF THE CERTIFICATE OR ANY
INTEREST HEREIN BY, ON BEHALF OF OR WITH PLAN ASSETS OF ANY EMPLOYEE BENEFIT
PLAN THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR THAT IS DESCRIBED IN SECTION 4975(e)(1) OF THE CODE (EACH,
A "PLAN") ACKNOWLEDGES THAT EITHER THE CERTIFICATEHOLDER HAS DELIVERED TO THE
ORIGINATOR AND THE TRUSTEE AT ITS OWN EXPENSE AN OPINION OF COUNSEL
(SATISFACTORY TO THE ORIGINATOR AND THE TRUSTEE) THAT THE PURCHASE AND HOLDING
OF THIS CERTIFICATE BY SUCH PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE
ORIGINATOR OR THE
I-1
<PAGE>
SERVICER TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT, OR, IF NO SUCH OPINION IS DELIVERED, IS DEEMED TO REPRESENT TO THE
TRUSTEE, THE ORIGINATOR AND THE SERVICER EITHER (I) THAT THE PERSON ACQUIRING
THE CERTIFICATE IS NEITHER A PLAN, NOR ACTING ON BEHALF OF A PLAN, SUBJECT TO
ERISA OR TO SECTION 4975 OF THE CODE, OR (II) THAT THE PURCHASE AND HOLDING OF
THIS CERTIFICATE BY SUCH PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING
DEEMED TO BE PLAN ASSETS AND SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF
ERISA AND THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE ORIGINATOR OR THE
SERVICER TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT.
Class C [Master] [Subsidiary] No.
(Subordinate)
Cut-off Date: Percentage Interest:
As defined in the Pooling
and Servicing Agreement
dated September 1, 1999
First Payment Date:
October 15, 1999
CERTIFICATE FOR HOME EQUITY LOANS, SERIES 1999-F
Original Aggregate Certificate Principal Balance of the Trust: $_________
This certifies that Green Tree Finance Corp.--Two is the registered owner
of the Residual Interest represented by this Certificate, and entitled to
certain distributions out of Home Equity Loan Trust 1999-F (the "Trust"), which
includes among its assets a pool of closed-end home equity loans (the "Loans")
(including, without limitation, all mortgages, deeds of trust and security deeds
relating to such Loans and any and all rights to receive payments due on the
Loans after the applicable Cut-off Date or the Subsequent Cut-off Date. The
Trust has been created pursuant to a Pooling and Servicing Agreement (the
"Agreement"), dated as of September 1, 1999, among Green Tree Financial
Corporation, as Servicer (the "Originator"), Conseco Finance Securitizations
Corp., as Seller (the "Seller") and U.S. Bank Trust National Association, as
Trustee of the Trust (the "Trustee"). This Class C [Master] [Subsidiary]
Certificate is described in the Agreement and is issued pursuant and subject to
the Agreement. By acceptance of this Class C [Master] [Subsidiary] Certificate
the holder assents to and becomes bound by the Agreement. To the extent not
defined herein, all capitalized terms have the meanings assigned to such terms
in the Agreement.
I-2
<PAGE>
The Agreement contemplates, subject to its terms, payment on the fifteenth
day (or if such day is not a Business Day, the next succeeding Business Day)
(the "Payment Date") of each calendar month commencing in October 1999, so long
as the Agreement has not been terminated, by check to the registered Class C
[Master] [Subsidiary] Certificateholder at the address appearing on the
Certificate Register as of the Business Day immediately preceding such Payment
Date, in an amount equal to the difference between (A) the Amount Available, and
(B) the sum of (i) the Class A Distribution Amount, (ii) the Class M-1
Distribution Amount, (iii) the Class M-2 Distribution Amount, (iv) the Class B-1
Distribution Amount, (v) the Class B-2 Distribution Amount, (vi) the Monthly
Servicing Fee with respect to the Loans, (vii) amounts to reimburse the Servicer
or the Trustee, as applicable, for prior Advances with respect to the Loans, and
(viii) amounts necessary to reimburse the Originator for any previous
unreimbursed Class B-2 Guaranty Payments. The final scheduled Payment Date of
this Class C [Master] [Subsidiary] Certificate is _____________ [ ] or the next
succeeding Business Day if such ______________ [ ] is not a Business Day.
The Class C [Master] [Subsidiary] Certificateholder, by its acceptance of
this Certificate, agrees that it will look solely to the funds in the
Certificate Account to the extent available for distribution to the Class C
[Master] [Subsidiary] Certificateholder as provided in the Agreement for payment
hereunder and that the Trustee in its individual capacity is not personally
liable to the Class C [Master] [Subsidiary] Certificateholder for any amounts
payable under this Certificate or the Agreement or, except as expressly provided
in the Agreement, subject to any liability under the Agreement. By acceptance of
this Certificate, the Class C [Master] [Subsidiary] Certificateholders agrees to
disclosure of his, her or its name and address to other Certificateholders under
the conditions specified in the Agreement.
No transfer of this Certificate or any interest herein to any employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or that is described in Section 4975(e)(1) of the
Code or to any person or entity purchasing on behalf of, or with assets of, such
an employee benefit plan (each, a "Plan") will be registered unless the
transferee, at its expense, delivers to the Originator and the Trustee an
opinion of counsel (satisfactory to the Originator and the Trustee) that the
purchase and holding of this Certificate by such Plan will not result in the
assets of the Trust being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA and the Code and will not subject the
Trustee, the Originator or the Servicer to any obligation or liability in
addition to those undertaken in the Agreement. Unless such opinion is delivered,
each person acquiring this Certificate will be deemed to represent to the
Trustee, the Originator and the Servicer either (i) that such person is neither
a Plan, nor acting on behalf of a Plan, subject to ERISA or to Section 4975 of
the Code, or (ii) that the purchase and holding of this Certificate by such Plan
will not result in the assets of the Trust being deemed to be Plan assets and
subject to the prohibited transaction provisions of ERISA and the Code and will
not subject the Trustee, the Originator or the Servicer to any obligation or
liability in addition to those undertaken in the Agreement.
I-3
<PAGE>
This Class C [Master] [Subsidiary] Certificate does not purport to
summarize the Agreement and reference is made to the Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds and
duties evidenced hereby and the rights, duties and immunities of the Trustee.
Copies of the Agreement and all amendments thereto will be provided to any Class
C [Master] [Subsidiary] Certificateholders free of charge upon a written request
to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Class C [Master] [Subsidiary] Certificate is
registrable in the Certificate Register of the Certificate Registrar upon
surrender of this Class C [Master] [Subsidiary] Certificate for registration of
transfer at the office or agency maintained by the Trustee in Minneapolis or St.
Paul, Minnesota, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by the
holder thereof or his or her attorney duly authorized in writing, and thereupon
a new Class C [Master] [Subsidiary] Certificate evidencing the same Class C
[Master] [Subsidiary] Certificate will be issued to the designated transferee or
transferees.
The Originator, the Seller, the Servicer, the Trustee, the Paying Agent and
the Certificate Registrar and any agent of the Originator, the Seller, the
Servicer, the Trustee, the Paying Agent or the Certificate Registrar may treat
the person in whose name this Class C [Master] [Subsidiary] Certificate is
registered as the owner hereof for all purposes, and neither the Originator, the
Seller, the Servicer, the Trustee, the Paying Agent, the Certificate Registrar
nor any such agent shall be affected by any notice to the contrary.
The holder of this Class C [Master] [Subsidiary] Certificate, by acceptance
hereof, agrees that, in accordance with the requirements of Section 860D(b)(1)
of the Code, the federal tax return of the Trust for its first taxable year
shall provide that the Trust elects to be treated as a "real estate mortgage
investment conduit" (a "REMIC") under the Code for such taxable year and all
subsequent taxable years. The Certificates shall be "regular interests" in the
REMIC and the Class C [Master] [Subsidiary] Certificate shall be the "residual
interest" in the REMIC. In addition, the holder of this Class C [Master]
[Subsidiary] Certificate, by acceptance hereof, (i) agrees to file tax returns
consistent with and in accordance with any elections, decisions or other reports
made or filed with regard to federal, state or local taxes on behalf of the
Trust, and (ii) agrees to cooperate with the Originator in connection with
examinations of the Trust's affairs by tax authorities, including administrative
and judicial proceedings, and (iii) makes the additional agreements,
designations and appointments, and undertakes the responsibilities, set forth in
Section 6.06 of the Agreement.
I-4
<PAGE>
IN WITNESS WHEREOF, Home Equity Loan Trust 1999-F has caused this
Certificate to be duly executed by the manual signature of a duly authorized
officer of the Trustee.
Dated:____________ HOME EQUITY LOAN TRUST 1999-F
By: U.S. BANK TRUST NATIONAL
ASSOCIATION
By:_____________________________
Authorized Officer
I-5
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _________________ the within Certificate for Home Equity Loans, Series
1999-F, and does hereby irrevocably constitute and appoint _______________
Attorney to transfer the said certificate on the Certificate Register maintained
by the Trustee, with full power of substitution in the premises.
Dated:______________ By:__________________________
Signature
I-6
<PAGE>
EXHIBIT J-1
-----------
FORM OF CERTIFICATE REGARDING REPURCHASED LOANS
-----------------------------------------------
GREEN TREE FINANCIAL CORPORATION
The undersigned certifies that he is a [title] of Green Tree Financial
Corporation, a Delaware corporation (the "Company"), and that as such he is duly
authorized to execute and deliver this certificate on behalf of the Company
pursuant to Sections 3.06 and 8.05 of the Pooling and Servicing Agreement (the
"Agreement") dated as of September 1, 1999 among the Company, Conseco Finance
Securitizations Corp. and U.S. Bank Trust National Association, as Trustee of
Home Equity Loan Trust 1999-F (all capitalized terms used herein without
definition having the respective meanings specified in the Agreement), and
further certifies that:
1. The Loans on the attached schedule are to be repurchased by the Company
on the date hereof pursuant to Section 3.06 of the Agreement.
2. Upon deposit of the Repurchase Price for such Loans, such Loans may,
pursuant to Section 8.05 of the Agreement, be assigned by the Trustee to the
Company.
IN WITNESS WHEREOF, I have affixed hereunto my signature this _____ day of
___________, 1999.
GREEN TREE FINANCIAL CORPORATION
By: _____________________________
[Name]
[Title]
J-1-1
<PAGE>
EXHIBIT J-2
-----------
FORM OF CERTIFICATE REGARDING REPURCHASED LOANS
-----------------------------------------------
GREEN TREE FINANCIAL CORPORATION
The undersigned certifies that he is a [title] of Green Tree Financial
Corporation, a Delaware corporation (the "Company"), and that as such he is duly
authorized to execute and deliver this certificate on behalf of the Company
pursuant to Sections 3.06(b) and 8.05 of the Pooling and Servicing Agreement
(the "Agreement") dated as of September 1, 1999 among the Company, Conseco
Finance Securitizations Corp. and U.S. Bank Trust National Association, as
Trustee of Home Equity Loan Trust 1999-F (all capitalized terms used herein
without definition having the respective meanings specified in the Agreement),
and further certifies that:
1. The Loan and Loan File for each such Eligible Substitute Loan have been
delivered to [the Trustee] [the Custodian].
2. The Loans on the attached schedule are to be substituted on the date
hereof pursuant to Section 3.06(b) of the Agreement and each such Loan is an
Eligible Substitute Loan [description, as to each Loan, as to how it satisfies
the definition of "Eligible Substitute Loan"].
3. The UCC-1 financing statements in respect of the Loans to be
substituted, in the form required by Section 3.05 (b)(iii) of the Agreement,
have been filed with the appropriate offices.
4. The Company has delivered to the Trustee an executed assignment to the
Trustee on behalf of the Trust in recordable form for each mortgage securing
such Eligible Substitute Loans.
5. The requirements of Section 3.06(b) of the Agreement have been met with
respect to each such Eligible Substitute Loan.
[6. There has been deposited in the Certificate Account the amounts listed
on the schedule attached hereto as the amount by which the Scheduled Principal
Balance of each Replaced Loan exceeds the Scheduled Principal Balance of each
Loan being substituted therefor.]
J-2-1
<PAGE>
IN WITNESS WHEREOF, I have affixed hereunto my signature this ____ day of
___________, 1999.
GREEN TREE FINANCIAL CORPORATION
By: _______________________________
[Name]
[Title]
J-2-2
<PAGE>
EXHIBIT J-3
-----------
FORM OF CERTIFICATE REGARDING SUBSTITUTION FOR PREPAID LOANS
------------------------------------------------------------
GREEN TREE FINANCIAL CORPORATION
The undersigned certifies that he is a [title] of Green Tree Financial
Corporation, a Delaware corporation (the "Company"), and that as such he is duly
authorized to execute and deliver this certificate on behalf of the Company
pursuant to Section 2.06 of the Pooling and Servicing Agreement (the
"Agreement") dated as of September 1, 1999 among the Company, Conseco Finance
Securitizations Corp. and U.S. Bank Trust National Association, as Trustee of
Home Equity Loan Trust 1999-F (all capitalized terms used herein without
definition having the respective meanings specified in the Agreement), and
further certifies that:
1. The Loan and Loan File for each such Eligible Substitute Loan have been
delivered to [the Trustee] [the Custodian].
2. The Loans on the attached schedule are to be substituted on the date
hereof pursuant to Section 2.06 of the Agreement and each such Loan is an
Eligible Substitute Loan [description, as to each Loan, as to how it satisfies
the definition of "Eligible Substitute Loan"].
3. The UCC-1 financing statements in respect of the Loans to be
substituted, in the form required by Section 2.06(iii) of the Agreement, have
been filed with the appropriate offices.
4. The Company has delivered to the Trustee an executed assignment to the
Trustee on behalf of the Trust in recordable form for each mortgage securing
such Eligible Substitute Loans.
5. The requirements of Section 2.06 of the Agreement have been met with
respect to each such Eligible Substitute Loan.
IN WITNESS WHEREOF, I have affixed hereunto my signature this ____ day of
_________, 1999.
GREEN TREE FINANCIAL CORPORATION
By: _______________________________
[Name]
[Title]
J-3-1
<PAGE>
EXHIBIT K
---------
FORM OF REPRESENTATION LETTER
-----------------------------
U.S. Bank Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55101
Green Tree Financial Corporation
1100 Landmark Towers
345 St. Peter Street
St. Paul, Minnesota 55102-1639
Re: Certificates for Home Equity Loans, Series 1999-F, Class C
The undersigned purchaser (the "Purchaser") understands that the purchase
of the above-referenced certificates (the "Certificates") may be made only by
institutions which are "Accredited Investors" under Regulation D, as promulgated
under the Securities Act of 1933, as amended (the "1933 Act"), which includes
banks, savings and loan associations, registered brokers and dealers, insurance
companies, investment companies, and organizations described in Section
501(c)(3) of the Internal Revenue Code, corporations, business trusts and
partnerships, not formed for the specific purpose of acquiring the Certificates
offered, with total assets in excess of $5,000,000. The undersigned represents
on behalf of the Purchaser that the Purchaser is an "Accredited Investor" within
the meaning of such definition. The Purchaser is urged to review carefully the
responses, representations and warranties it is making herein.
Representations and Warranties
- ------------------------------
The Purchaser makes the following representations and warranties in order
to permit the Trustee, Green Tree Financial Corporation, and ______________ to
determine its suitability as a purchaser of Certificates and to determine that
the exemption from registration relied upon by Green Tree Financial Corporation
under Section 4(2) of the 1933 Act is available to it.
1. The Purchaser understands that the Certificates have not been and will
not be registered under the 1933 Act and may be resold (which resale is not
currently contemplated) only if registered pursuant to the provisions of the
1933 Act or if an exemption from registration is available, that Green Tree
Financial Corporation is not required to register the Certificates and that any
transfer must comply with Section 9.02 of the Pooling and Servicing Agreement
relating to the Certificates.
2. The Purchaser will comply with all applicable federal and state
securities laws in connection with any subsequent resale of the Certificates.
K-1
<PAGE>
3. The Purchaser is a sophisticated institutional investor and has
knowledge and experience in financial and business matters and is capable of
evaluating the merits and risks of its investment in the Certificates and is
able to bear the economic risk of such investment. The Purchaser has reviewed
the Prospectus Supplement dated September 24, 1999, to the Prospectus dated
September 24, 1999 (the "Prospectus") with respect to the Certificates, and has
been given such information concerning the Certificates, the underlying home
equity loans and Green Tree Financial Corporation as it has requested.
4. The Purchaser is acquiring the Certificates as principal for its own
account (or for the account of one or more other institutional investors for
which it is acting as duly authorized fiduciary or agent) for the purpose of
investment and not with a view to or for sale in connection with any
distribution thereof, subject nevertheless to any requirement of law that the
disposition of the Purchaser's property shall at all times be and remain within
its control.
5. The Purchaser either (check one box):
o is not, and is not acting on behalf of or with assets of, an
employee benefit plan that is subject to the Employee Retirement
Income Security Act of 1974, as amended or that is described in
Section 4975(e)(1) of the Internal Revenue Code of 1986, as
amended, or
o has provided the Trustee and Servicer with the opinion of counsel
described in Section 9.02(b)(2) of the Pooling and Servicing
Agreement, or
o acknowledges that it is deemed to make the representation set
forth in Section 9.02(b)(2) of the Pooling and Servicing
Agreement.
6. The Purchaser understands that such Certificate will bear a legend
substantially as set forth in the form of Certificate included in the Pooling
and Servicing Agreement.
7. The Purchaser, as holder of the Class C Certificate], acknowledges (i)
it may incur tax liabilities in excess of any cash flows generated by the
interest and (ii) it intends to pay the taxes associated with holding the Class
C Certificate as they become due.
8. The Purchaser agrees that it will obtain from any purchaser of the
Certificates from it the same representations, warranties and agreements
contained in the foregoing paragraphs 1 through 7 and in this paragraph 8. The
representations and warranties contained herein shall be binding upon the heirs,
executors, administrators and other successors of the
K-2
<PAGE>
undersigned. If there is more than one signatory hereto, the obligations,
representations, warranties and agreements of the undersigned are made jointly
and severally.
K-3
<PAGE>
Executed at ______________, ________________, this ___ day of _________.
Purchaser's Name (Print)
By:________________________________
Signature
Its:__________________________
Address of Purchaser
Purchaser's Taxpayer
Identification Number
K-4
<PAGE>
EXHIBIT L-1
-----------
LIST OF INITIAL GROUP I FIXED-RATE LOANS
[To Be Supplied]
L-1-1
<PAGE>
EXHIBIT L-2
-----------
LIST OF INITIAL GROUP II FIXED-RATE LOANS
[To Be Supplied]
L-2-1
<PAGE>
EXHIBIT L-3
-----------
LIST OF INITIAL GROUP I ADJUSTABLE RATE LOANS
[To Be Supplied]
L-3-1
<PAGE>
EXHIBIT L-4
-----------
LIST OF INITIAL GROUP II ADJUSTABLE RATE LOANS
[To Be Supplied]
L-4-1
<PAGE>
EXHIBIT M
---------
FORM OF MONTHLY REPORT
----------------------
CERTIFICATES FOR HOME EQUITY LOANS, SERIES 1999-F
Payment Date:_________________
1. Amount Available (including Monthly
Servicing Fee)__________
2. Formula Principal Distribution Amount: ____________
(a) Scheduled principal ____________
(b) Principal Prepayments ____________
(c) Liquidated Loans ____________
(d) Repurchases ____________
(e) Previously undistributed (a)-(d) amounts ____________
(f) Pre-Funded Fixed Rate Amount, if any
(Post-Funding Payment Date) ____________
(g) minus Group I ARM Formula Principal
Distribution Amount, Group II ARM Formula Principal
Distribution Amount and Group II Fixed Formula Principal
Distribution Amount ____________
3. Group I ARM Formula Principal
Distribution Amount ____________
(a) Scheduled principal ____________
(b) Principal Prepayments ____________
(c) Liquidated Loans ____________
(d) Repurchases ____________
(e) Pre-Funded Group I ARM Amount, if any
(Post-Funding Payment Date) ____________
4. Group II ARM Formula Principal
Distribution Amount ____________
(a) Scheduled principal ____________
(b) Principal Prepayments ____________
(c) Liquidated Loans ____________
(d) Repurchases ____________
M-1
<PAGE>
(e) Pre-Funded Group II ARM Amount, if any
(Post-Funding Payment Date) ____________
5. Group II Fixed Formula Principal Distribution Amount ____________
(a) Scheduled principal ____________
(b) Principal Prepayments ____________
(c) Liquidated Loans ____________
(d) Repurchases ____________
6. Senior Percentage ____________
7. Class B Percentage ____________
8. LIBOR ____________
9. Class A-1A ARM Pass-Through Margin (.26% or .52%) ____________
10. Class A-1B ARM Pass-Through Margin (.28% or .56%) ____________
11. Available Funds Pass-Through Rate ____________
12. Class A-4 IO Notional Principal Amount ____________
Class A Certificates
- --------------------
Interest
13. Aggregate current interest
(a) Class A-1A ARM Pass-Through Rate (a floating rate
per annum equal to the lesser of (a) LIBOR plus the
Class A-1A ARM Pass-Through Margin, or (b) the Available
Funds Pass-Through Rate, but in no case more than 14.0%) ____________
(b) Class A-lA ARM Interest ____________
(c) Class A-1B ARM Pass-Through Rate (a floating rate per
annum equal to the lesser of (a) LIBOR plus the Class
A-1B ARM Pass-Through Margin, or (b) the Available Funds
Pass-Through Rate, but in no case more than 14.0%) ____________
(d) Class A-1B ARM Interest ____________
(e) Class A-1 Pass-Through Rate (6.29%) ____________
(f) Class A-l Interest ____________
M-2
<PAGE>
(g) Class A-2 Pass-Through Rate (6.72%) ____________
(h) Class A-2 Interest ____________
(i) Class A-3 Pass-Through Rate (6.97%) ____________
(j) Class A-3 Interest ____________
(k) Class A-3A Pass-Through Rate (7.35%) ____________
(l) Class A-3A Interest ____________
(m) Class A-4 IO Pass-Through Rate (6.65%) ____________
(n) Class A-4 IO Interest ____________
14. Amount applied to Unpaid Class A Interest Shortfall ____________
15. Remaining Unpaid Class A Interest Shortfall ____________
Class M-1 Certificates
- ----------------------
16. Amount Available less all preceding distributions ____________
Interest on Class M-1 Adjusted Principal Balance
17. Class M-1 Adjusted Principal Balance ____________
18. Current Interest ____________
(a) Class M-1 Pass-Through Rate (floating rate equal to the
Weighted Average Loan Rate, but in no event greater
than 7.97%) ____________
(b) Class M-1 Interest ____________
19. Amount applied to Unpaid Class M-1 Interest Shortfall ____________
20. Remaining Unpaid Class M-1 Interest Shortfall ____________
Class M-2 Certificates
- ----------------------
21. Amount Available less all preceding distributions ____________
Interest on Class M-2 Adjusted Principal Balance
22. Class M-2 Adjusted Principal Balance ____________
M-3
<PAGE>
23. Current Interest
(a) Class M-2 Pass-Through Rate (floating rate equal to the
Weighted Average Loan Rate, but in no event greater than
9.30%)
(b) Class M-2 Interest ____________
24. Amount applied to Unpaid Class M-2 Interest Shortfall ____________
25. Remaining Unpaid Class M-2 Interest Shortfall ____________
Class B-1 Certificates
- ----------------------
26. Amount Available less all preceding distributions ____________
Interest on Class B-1 Adjusted Principal Balance
27. Class B-1 Adjusted Principal Balance ____________
28. Current Interest
(a) Class B-1 Pass-Through Rate (floating rate equal to the
Weighted Average Loan Rate, but in no event greater than
9.50%)
(b) Class B-1 Interest ____________
29. Amount applied to Unpaid Class B-1 Interest Shortfall ____________
30. Remaining Unpaid Class B-1 Interest Shortfall ____________
Class A Certificates
31. Amount Available less all preceding distributions ____________
M-4
<PAGE>
Principal
32. Class A principal distribution:/1/
(a) Class A-1A ARM - Group I ARM Formula Principal
Distribution Amount plus any amounts distributable
pursuant to Section 8.04(b)(6)(B)(f) ____________
(b) Class A-1B ARM - Group II ARM Formula Principal
Distribution Amount plus any amounts distributable
pursuant to Section 8.04(b)(6)(B)(g) ____________
(c) Senior Percentage of Formula Principal Distribution
Amount:
(i) Class A-1 ____________
(ii) Class A-2 ____________
(iii) Class A-3 ____________
(d) Class A-3A - Group II Fixed Formula Principal
Distribution Amount ____________
33. (a) Class A-1A ARM Principal Balance ____________
(b) Class A-1B ARM Principal Balance ____________
(c) Class A-1 Principal Balance ____________
(d) Class A-2 Principal Balance ____________
(e) Class A-3 Principal Balance ____________
(f) Class A-3A Principal Balance ____________
34. Amount, if any, by which Class A Formula Principal
Distribution Amount exceeds amounts distributed pursuant
to item (32) ____________
Class M-1 Certificates
- ----------------------
/1/ If a Class A Principal Deficiency Amount exists, the remaining Amount
Available is to be distributed pro rata to each Class of Class A Certificates
(other than the Class A-4 IO Certificates) based on the Class Principal Balance
of each such Class. If no Class A Principal Deficiency Amount exists, but the
remaining Amount Available is less than the Class A Formula Principal
Distribution Amount, then such remaining Amount Available is to be distributed
pro rata to each Class of Class A Certificates (other than the Class A-4 IO
Certificates) based on the amount distributable had such remaining Amount
Available not been less than the Class A Formula Principal Distribution Amount.
Otherwise, the Group I ARM Formula Principal Distribution Amount, the Group II
ARM Formula Principal Distribution Amount and the Senior Percentage of the
Formula Principal Distribution Amount are to be distributed sequentially as
described in this item 30.
M-5
<PAGE>
35. Amount Available less all preceding distributions ____________
Principal
36. Class M-1 principal distribution ____________
37. Class M-1 Principal Balance ____________
38. Amount, if any, by which the amount in clause (c) of the
Class M-1 Formula Distribution Amount exceeds the amount
distributed pursuant to item (36) ____________
Class M-2 Certificates
- ----------------------
39. Amount Available less all preceding distributions ____________
Principal
40. Class M-2 principal distribution ____________
41. Class M-2 Principal Balance ____________
42. Amount, if any, by which the amount in clause (c) of the
Class M-2 Formula Distribution Amount (the "Class M-2 Formula
Principal Distribution Amount") exceeds the amount
distributed pursuant to item (40)
Class B Principal Distribution Tests (tests must be
- ------------------------------------
satisfied on and after the Payment Date occurring in October 2002)
43. Average Sixty-Day Delinquency Ratio Test
(a) Sixty-Day Delinquency Ratio for current Payment Date ____________
(b) Average Sixty-Day Delinquency Ratio Test (arithmetic
average of ratios for this month and two preceding
months; may not exceed 10.0%) ____________
M-6
<PAGE>
44. Average Thirty-Day Delinquency Ratio Test
(a) Thirty-Day Delinquency Ratio for current Payment Date ____________
(b) Average Thirty-Day Delinquency Ratio Test (arithmetic
average of ratios for this month and two preceding
months; may not exceed 12%) ____________
45. Cumulative Realized Losses Test
Cumulative Realized Losses for current Payment Date
(as a percentage of Cut-off Date Pool Principal Balance
may not exceed 7.5%) ____________
46. Current Realized Losses Test
(a) Current Realized Losses for current Payment Date ____________
(b) Current Realized Loss Ratio (total Realized Losses for
most recent six months, multiplied by 2, divided by
arithmetic average of Pool Scheduled Principal Balance
for sixth preceding Payment Date and for current Payment
Date; may not exceed 2.0%) ____________
47. Class B Principal Balance Test
Class B Principal Balance plus Over-collateralization
Adjustment Amount divided by Pool Scheduled Principal
Balance for prior Payment Date (must equal or exceed
15.3%) ____________
Class B-1 Certificates
- ----------------------
48. Amount Available less all preceding distributions ____________
M-7
<PAGE>
Principal
49. Class B-1 principal distribution ____________
50. Class B-1 Principal Balance ____________
51. Amount, if any, by which the amount in clause (c) of the
Class B-1 Formula Distribution Amount exceeds the amount
distributed pursuant to item (49) ____________
Class M-1 Certificates
- ----------------------
52. Amount Available less all preceding distributions ____________
Liquidation Loss Interest
53. Class M-1 Formula Liquidation Loss Interest Distribution
Amount ____________
54. Amount applied to Unpaid Class M-1 Liquidation Loss Interest
Shortfall ____________
55. Remaining Unpaid Class M-1 Liquidation Loss Interest Shortfall ____________
Class M-2 Certificates
- ----------------------
56. Amount Available less all preceding distributions ____________
Liquidation Loss Interest
57. Class M-2 Formula Liquidation Loss Interest Distribution
Amount ____________
58. Amount applied to Unpaid Class M-2 Liquidation Loss Interest
Shortfall ____________
59. Remaining Unpaid Class M-2 Liquidation Loss Interest Shortfall ____________
M-8
<PAGE>
Class B-1 Certificates
- ----------------------
60. Amount Available less all preceding distributions ____________
Liquidation Loss Interest
61. Class B-1 Formula Liquidation Loss Interest Distribution
Amount ____________
62. Amount applied to Unpaid Class B-1 Liquidation Loss Interest
Shortfall ____________
63. Remaining Unpaid Class B-1 Liquidation Loss Interest Shortfall ____________
Class B-2 Certificates
- ----------------------
64. Amount Available less all preceding distributions ____________
Interest
65. Current interest
(a) Class B-2 Pass-Through Rate (floating rate equal to the
Weighted Average Loan Rate, but in no event greater than
9.50%)
(b) Class B-2 Interest ____________
66. Amount applied to Unpaid Class B-2 Interest Shortfall ____________
67. Remaining Unpaid Class B-2 Interest Shortfall ____________
Principal
68. Class B-2 principal distribution ____________
69. Class B-2 Guaranty Payment ____________
70. Class B-2 Principal Balance ____________
71. Amount, if any, by which Class B-2
M-9
<PAGE>
Formula Distribution Amount plus Class B-2 Liquidation Loss
Principal Amount exceeds Class B-2 Distribution Amount ____________
Class A-1A ARM Certificates
- ---------------------------
72. Amount Available less all preceding distributions ____________
Available Funds Limitation Interest
73. Class A-1A ARM Formula Available Funds Limitation Interest
Distribution Amount ____________
74. Amount applied to Unpaid Class A-1A ARM Available Funds
Limitation Shortfall ____________
75. Remaining Unpaid Class A-1A ARM Available Funds Limitation
Shortfall ____________
Class A-1B ARM Certificates
- ---------------------------
76. Amount Available less all preceding distributions ____________
Available Funds Limitation Interest
77. Class A-1B ARM Formula Available Funds Limitation Interest
Distribution Amount ____________
78. Amount applied to Unpaid Class A-1B ARM Available Funds
Limitation Shortfall ____________
79. Remaining Unpaid Class A-1B ARM Available Funds Limitation
Shortfall ____________
Class A, Class M and Class B Certificates
- ------------------------------------------
80. Pool Scheduled Principal Balance ____________
(a) Group I Fixed Rate Loans ____________
(B) Group II Fixed Rate Loans ____________
(C) Group I Adjustable Rate Loans ____________
(D) Group II Adjustable Rate Loans ____________
M-10
<PAGE>
81. Pool Factor ____________
82. Loans Delinquent:
30 - 59 days
Group I Fixed Rate ____________
Group II Fixed Rate ____________
Group I Adjustable Rate ____________
Group II Adjustable Rate ____________
60 or more days
Group I Fixed Rate ____________
Group II Fixed Rate ____________
Group I Adjustable Rate ____________
Group II Adjustable Rate ____________
83. Principal Balance of Defaulted Loans
Group I Fixed Rate ____________
Group II Fixed Rate ____________
Group I Adjustable Rate ____________
Group II Adjustable Rate ____________
84. Number of Liquidated Loans and Net Liquidation Loss ____________
Group I Fixed Rate ____________
Group II Fixed Rate ____________
Group I Adjustable Rate ____________
Group II Adjustable Rate ____________
85. Number of Loans Remainings
Group I Fixed Rate ____________
Group II Fixed Rate ____________
Group I Adjustable Rate ____________
Group II Adjustable Rate ____________
86. Pre-Funded Group I ARM Amount ____________
87. Pre-Funded Group II ARM Amount ____________
88. Pre-Funded Group I Fixed Rate Amount ____________
89. Pre-Funded Group II Fixed Rate Amount ____________
M-11
<PAGE>
Company
- -------
90. Monthly Servicing Fee ____________
91. Class B-2 Guaranty Fee ____________
Class C Subsidiary Certificates
- -------------------------------
92. Class C Subsidiary residual payment ____________
Class C Master Certificates
- ---------------------------
93. Class C Master Distribution Amount ____________
Please contact the Bondholder Relations Department of U.S. Bank Trust
National Association at (612) 224-0444 with any questions regarding this
Statement or your Distribution.
M-12
<PAGE>
EXHIBIT N
---------
FORM OF ADDITION NOTICE
-----------------------
___________, 1999
U.S. Bank Trust National Association
180 East Fifth Street
St. Paul, MN 55101
Re: Pooling and Servicing Agreement (the "Agreement"), dated as of
September 1, 1999, among Green Tree Financial Corporation (the
"Originator") , Conseco Finance Securitizations Corp. (the "Seller")
and U.S. Bank Trust National Association as Trustee (the "Trustee")
relating to Certificates for Home Equity Loans, Series 1999-F
Ladies and Gentlemen:
Capitalized terms not otherwise defined in this Notice have the meanings
given them in the Agreement. The Seller hereby notifies the Trustee of an
assignment to the Trust of Subsequent Loans on the date and in the amounts set
forth below:
Subsequent Transfer Date:____________________
Cut-off Date Principal Balance of Subsequent Loans to be assigned to Trust on
Subsequent Transfer Date:
Group I Fixed Rate: $___________________
Group II Fixed Rate: $___________________
Group I Adjustable Rate: $___________________
Group II Adjustable Rate: $___________________
N-1
<PAGE>
Please acknowledge your receipt of this notice by countersigning the
enclosed copy in the space indicated below and returning it to the attention of
the undersigned.
Very truly yours,
GREEN TREE FINANCIAL CORPORATION
By:_______________________________
Name:
Title:
ACKNOWLEDGED AND AGREED:
U.S. BANK TRUST NATIONAL ASSOCIATION
By:____________________________
Name:
Title:
N-2
<PAGE>
EXHIBIT O
---------
FORM OF SUBSEQUENT TRANSFER INSTRUMENT
--------------------------------------
In accordance with the Pooling and Servicing Agreement (the "Agreement")
dated as of September 1, 1999, among the undersigned, Conseco Finance
Securitizations Corp. (the "Seller") and U.S. Bank Trust National Association as
Trustee (the "Trustee"), the undersigned does hereby transfer, assign, set over
and otherwise convey, without recourse, to Home Equity Loan Trust 1999-F,
created by the Agreement, to be held in trust as provided in the Agreement, (i)
all right, title and interest in the home equity loans identified in the List of
Loans attached hereto (each a "Subsequent Loan"), including, without limitation,
all related mortgages, deeds of trust, security deeds and any and all rights to
receive payments on or with respect to the Subsequent Loans (excluding principal
due before the Subsequent Cut-off Date), (ii) all rights under any hazard, flood
or other individual insurance policy on the real estate securing a Subsequent
Loan for the benefit of the creditor of such Loan, (iii) all rights the
Originator may have against the originating lender with respect to the
Subsequent Loans originated by a lender other than the Originator, (iv) all
rights under the Errors and Omissions Protection Policy and the Fidelity Bond as
such policy and bond relate to the Subsequent Loans, (v) all rights under any
title insurance policies, if applicable, on any of the properties securing
Subsequent Loans, (vi) all documents contained in the related Loan Files, and
(vii) all proceeds and products of the foregoing and all rights of the Seller
under the Subsequent Transfer Agreement between the Seller and the undersigned
and all rights of the Seller under the Subsequent Transfer Agreement with Green
Tree Financial Corporation.
Each of the Subsequent Loans constitutes a Subsequent [Group I Adjustable
Rate] [Group II Adjustable Rate] [Group I Fixed Rate] [Group II Fixed Rate] Loan
under the Agreement.
This Assignment is made pursuant to and upon the representation and
warranties on the part of the undersigned contained in Section 2.03 and Article
III of the Agreement and no others. All undefined capitalized terms used in this
Assignment have the meanings given them in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed this ___ day of _________, 1999.
GREEN TREE FINANCIAL CORPORATION
[Seal] By:________________________________
Name:
Title:
O-1
<PAGE>
EXHIBIT P
---------
FORM OF OFFICER'S CERTIFICATE (SUBSEQUENT TRANSFER)
---------------------------------------------------
The undersigned certifies that [s]he is a [title] of Green Tree Financial
Corporation, a Delaware corporation (the "Company"), and that as such he is duly
authorized to execute and deliver this certificate on behalf of the Originator
in connection with the Pooling and Servicing Agreement dated as of September 1,
1999 (the "Agreement") among the Originator, Conseco Finance Securitizations
Corp. and U.S. Bank Trust National Association as Trustee. All capitalized terms
used herein without definition have the respective meanings specified in the
Agreement. The undersigned further certifies that:
1. This Certificate is delivered in connection with the sale to the Trust
on ___________________ (the "Subsequent Transfer Date") of Loans (the
"Subsequent Loans") identified in the List of Loans attached to the Subsequent
Transfer Instrument of even date herewith.
2. As of the Subsequent Transfer Date, all representations and warranties
in Section 3.01, 3.02, 3.03, 3.04 and 3.05 of the Agreement are true and
correct; all representations and warranties in Sections 3.02 and 3.03 of the
Agreement with respect to the Subsequent Loans are true to the best of his
knowledge; and all representations in Section 3.04 of the Agreement with respect
to the Subsequent Loans are true and correct.
3. All conditions precedent to the sale of the Subsequent Loans to the
Trust under Section 2.03 of the Agreement have been satisfied.
4. Each of the Subsequent Loans constitutes a Subsequent [Group I
Adjustable Rate] [Group II Adjustable Rate] [Group I Fixed Rate] [Group II Fixed
Rate] Loan under the Agreement.
IN WITNESS WHEREOF, I have affixed hereunto my signature this ___ day of
____________, 1999.
By:______________________________
Name:
Title:
P-1
<PAGE>
TRANSFER AGREEMENT
between
CONSECO FINANCE SECURITIZATIONS CORP.
Purchaser
and
GREEN TREE FINANCIAL CORPORATION
Seller
dated as of
September 1, 1999
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I. DEFINITIONS......................................................1
SECTION 1.1. General..................................................1
SECTION 1.2. Specific Terms...........................................1
SECTION 1.3. Usage of Terms...........................................3
SECTION 1.4. No Recourse..............................................3
ARTICLE II. CONVEYANCE OF THE INITIAL LOANS AND THE INITIAL
OTHER CONVEYED PROPERTY.........................................3
SECTION 2.1. Conveyance of the Initial Loans and the Initial
Other Conveyed Property..................................3
SECTION 2.2. Purchase Price of Initial Loans..........................3
SECTION 2.3. Conveyance of Subsequent Loans and Subsequent
Other Conveyed Property..................................3
ARTICLE III. REPRESENTATIONS AND WARRANTIES.................................6
SECTION 3.1. Representations and Warranties of GTFC...................6
SECTION 3.2. Representations and Warranties of CFSC...................7
ARTICLE IV. COVENANTS OF GTFC..............................................10
SECTION 4.1. Protection of Title of CFSC and the Trust...............10
SECTION 4.2. Other Liens or Interests................................10
SECTION 4.3. Indemnification.........................................10
ARTICLE V. REPURCHASES.....................................................11
SECTION 5.1. Repurchase of Loans Upon Breach of Warranty.............11
SECTION 5.2. Reassignment of Purchased Loans.........................12
SECTION 5.3. Waivers.................................................12
ARTICLE VI. MISCELLANEOUS..................................................12
SECTION 6.1. Liability of GTFC.......................................12
SECTION 6.2. Merger or Consolidation of GTFC or CFSC.................13
SECTION 6.3. Limitation on Liability of GTFC and Others..............13
SECTION 6.4. Amendment...............................................14
SECTION 6.5. Notices.................................................15
SECTION 6.6. Merger and Integration..................................15
SECTION 6.7. Severability of Provisions..............................15
SECTION 6.8. Intention of the Parties................................15
SECTION 6.9. Governing Law...........................................16
SECTION 6.10. Counterparts............................................16
-i-
<PAGE>
SECTION 6.11. Conveyance of the Initial Loans and the Initial
Other Conveyed Property to the Trust................16
SECTION 6.12. Nonpetition Covenant....................................16
SCHEDULES
Schedule A -- Schedule of Initial Loans
EXHIBITS
Exhibit A -- Form of Subsequent Transfer Agreement
-ii-
<PAGE>
TRANSFER AGREEMENT
THIS TRANSFER AGREEMENT, dated as of September 1, 1999, executed between
Conseco Finance Securitizations Corp., a Minnesota corporation, as purchaser
("CFSC"), and Green Tree Financial Corp., a Delaware corporation, as seller
("GFTC").
W I T N E S S E T H:
WHEREAS, CFSC has agreed to purchase from GTFC and GTFC, pursuant to this
Agreement, is transferring to CFSC the certain home equity loans specified in
the Schedule of Initial Loans attached hereto as Schedule A (the "Initial
Loans") and the Initial Other Conveyed Property; and
WHEREAS, CFSC has agreed to purchase from GTFC and GTFC has agreed to
transfer to CFSC the Subsequent Loans and Subsequent Other Conveyed Property in
an amount set forth herein, prior to December 14, 1999.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter contained, and for other good and valuable consideration, the
receipt of which is acknowledged, CFSC and GTFC, intending to be legally bound,
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. General. The specific terms defined in this Article include
the plural as well as the singular. The words "herein," "hereof" and "hereunder"
and other words of similar import refer to this Agreement as a whole and not to
any particular Article, Section or other subdivision, and Article, Section,
Schedule and Exhibit references, unless otherwise specified, refer to Articles
and Sections of and Schedules and Exhibits to this Agreement. Capitalized terms
used herein without definition shall have the respective meanings assigned to
such terms in the Pooling and Servicing Agreement, dated as of September 1,
1999, by and among Conseco Finance Securitizations Corp. (as Seller), Green Tree
Financial Corp. (in its individual capacity and as Servicer), and Home Equity
Loan Trust 1999-F (as Issuer) (the "Trust").
SECTION 1.2. Specific Terms. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
following meanings:
"Agreement" shall mean this Transfer Agreement and all amendments hereof
and supplements hereto.
"Closing Date" means October 4, 1999.
-1-
<PAGE>
"Initial Other Conveyed Property" means all monies at any time paid or
payable on the Initial Loans or in respect thereof after the Initial Cutoff Date
(including amounts due on or before the Initial Cutoff Date but received by GTFC
after the Initial Cutoff Date), an assignment of security interests in the
related real estate, the Certificate Account (including all Eligible Investments
therein and all proceeds therefrom), all items contained in the Loan Files
relating to the Initial Loans, any and all other documents or electronic records
that GTFC keeps on file in accordance with its customary procedures relating to
the Initial Loans, the Obligors or the related real estate, property (including
the right to receive future Liquidation Proceeds) that secures an Initial Loan
and that has been acquired by or on behalf of the Trust pursuant to liquidation
of such Initial Loan, and all proceeds of the foregoing.
"Initial Loans" means the Loans listed on the Schedule of Initial Loans
attached hereto as Schedule A.
"Other Conveyed Property" means the Initial Other Conveyed Property
conveyed by GTFC to CFSC pursuant to this Agreement together with any and all
Subsequent Other Conveyed Property conveyed by GTFC to CFSC pursuant to each
Subsequent Purchase Agreement.
"Related Documents" means the Certificates, the Pooling and Servicing
Agreement, each Subsequent Transfer Agreement and the Underwriting Agreements
among GTFC, CFSC and the underwriters of the Certificates. The Related Documents
to be executed by any party are referred to herein as "such party's Related
Documents," "its Related Documents" or by a similar expression.
"Repurchase Event" means the occurrence of a breach of any of GTFC's
representations and warranties hereunder or under any Subsequent Purchase
Agreement or any other event which requires the repurchase of a Loan by GTFC
under the Pooling and Servicing Agreement.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement, dated as of September 1, 1999, executed and delivered by Green Tree
Financial Corp., as Originator, Servicer and Guarantor, Conseco Finance
Securitizations Corp., as Seller, and the Trustee.
"Schedule of Initial Loans" means the schedule of all Loans sold and
transferred pursuant to this Agreement which is attached hereto as Schedule A.
"Schedule of Loans" means the Schedule of Initial Loans attached hereto as
Schedule A as supplemented by each Schedule of Subsequent Loans attached to each
Subsequent Purchase Agreement as Schedule A.
-2-
<PAGE>
"Schedule of Subsequent Loans" means the schedule of all Loans sold and
transferred pursuant to a Subsequent Purchase Agreement which is attached to
such Subsequent Purchase Agreement as Schedule A, which Schedule of Subsequent
Loans shall supplement the Schedule of Initial Loans.
"Subsequent Loans" means the Loans specified in the Schedule of Subsequent
Loans attached as Schedule A to each Subsequent Purchase Agreement.
"Subsequent Other Conveyed Property" means the Subsequent Other Conveyed
Property conveyed by GTFC to CFSC pursuant to each Subsequent Purchase
Agreement.
"Trust" means the trust created by the Pooling and Servicing Agreement, the
estate of which consists of the Trust Property.
"Trustee" means U.S. Bank Trust National Association, a national banking
association organized and existing under the laws of the United States, not in
its individual capacity but solely as trustee of the Trust, and any successor
trustee appointed and acting pursuant to the Trust Agreement.
"Trust Property" means the property and proceeds of every description
conveyed by the Seller to the Trust pursuant to the Pooling and Servicing
Agreement and pursuant to any Subsequent Transfer Agreement, together with the
Trust Accounts (including all Eligible Investments therein and all proceeds
therefrom).
SECTION 1.3. Usage of Terms. With respect to all terms used in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other gender; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement or the Pooling and
Servicing Agreement; references to Persons include their permitted successors
and assigns; and the terms "include" or "including" mean "include without
limitation" or "including without limitation."
SECTION 1.4. No Recourse. Without limiting the obligations of GTFC
hereunder, no recourse may be taken, directly or indirectly, under this
Agreement or any certificate or other writing delivered in connection herewith
or therewith, against any stockholder, officer or director, as such, of GTFC, or
of any predecessor or successor of GTFC.
-3-
<PAGE>
ARTICLE II
CONVEYANCE OF THE INITIAL LOANS
AND THE INITIAL OTHER CONVEYED PROPERTY
SECTION 2.1. Conveyance of the Initial Loans and the Initial Other Conveyed
Property. Subject to the terms and conditions of this Agreement, GTFC hereby
sells, transfers, assigns, and otherwise conveys to CFSC without recourse (but
without limitation of its obligations in this Agreement or in the Pooling and
Servicing Agreement), and CFSC hereby purchases, all right, title and interest
of GTFC in and to the Initial Loans and the Initial Other Conveyed Property. It
is the intention of GTFC and CFSC that the transfer and assignment contemplated
by this Agreement shall constitute a sale of the Initial Loans and the Initial
Other Conveyed Property from GTFC to CFSC, conveying good title thereto free and
clear of any Liens, and the Initial Loans and the Initial Other Conveyed
Property shall not be part of GTFC's estate in the event of the filing of a
bankruptcy petition by or against GTFC under any bankruptcy or similar law.
SECTION 2.2. Purchase Price of Initial Loans. Simultaneously with the
conveyance of the Initial Loans and the Initial Other Conveyed Property to CFSC,
CFSC has paid or caused to be paid to or upon the order of GTFC approximately
$645,219,075 by wire transfer of immediately available funds (representing the
proceeds to CFSC from the sale of the Initial Loans after (i) deducting expenses
of $725,000 incurred by CFSC in connection with such sale and (ii) depositing
the Pre-Funded Amount in the Pre-Funding Account.
SECTION 2.3. Conveyance of Subsequent Loans and Subsequent Other Conveyed
Property.
(a) Subject to the conditions set forth in paragraph (b) below and the
terms and conditions in the related Subsequent Purchase Agreement, in
consideration of CFSC's delivery on the related Subsequent Transfer Date to or
upon the order of GTFC of an amount equal to the purchase price of the
Subsequent Loans (as set forth in the related Subsequent Purchase Agreement),
GTFC hereby agrees to sell, transfer, assign, and otherwise convey to CFSC
without recourse (but without limitation of its obligations in this Agreement
and the related Subsequent Purchase Agreement), and CFSC hereby agrees to
purchase all right, title and interest of GTFC in and to the Subsequent Loans
and the Subsequent Other Conveyed Property described in the related Subsequent
Purchase Agreement.
(b) GTFC shall transfer to CFSC, and CFSC shall acquire, the Subsequent
Loans and the Subsequent Other Conveyed Property to be transferred on any
Subsequent Transfer Date only upon the satisfaction of each of the following
conditions on or prior to such Subsequent Transfer Date:
(i) GTFC shall have provided the Trustee and the Rating Agencies with
an Addition Notice at least five Business Days prior to the Subsequent
Transfer Date and
-4-
<PAGE>
shall have provided any information reasonably requested by the Trustee
with respect to the Subsequent Loans;
(ii) GTFC shall have delivered the related Loan File for each
Subsequent Loan to the Trustee at least two Business Days prior to the
Subsequent Transfer Date;
(iii) GTFC shall have delivered to CFSC a duly executed Subsequent
Transfer Instrument substantially in the form of Exhibit A hereto (the
"Subsequent Transfer Agreement"), which shall include a List of Loans
identifying the related Subsequent Loans;
(iv) as of each Subsequent Transfer Date, as evidenced by delivery of
the Subsequent Transfer Instrument, the neither GTFC nor CFSC shall be
insolvent nor shall they have been made insolvent by such transfer nor
shall they be aware of any pending insolvency;
(v) such transfer shall not result in a material adverse tax
consequence to the Trust (including the Master REMIC and the Subsidiary
REMIC) or the Certificateholders or Class C Certificateholders;
(vi) the Pre-Funding Period shall not have ended;
(vii) GTFC shall have delivered to CFSC an Officer's Certificate,
substantially in the form attached to the Pooling and Servicing Agreement
as Exhibit P, confirming the satisfaction of each condition precedent and
the representations specified in this Section 2.3 and in Sections 3.01,
3.02, 3.03 and 3.05 of the PSA;
(viii) [RESERVED];
(ix) No Subsequent Loan will have a Combined LTV greater than 100%,
and;
(x) GTFC shall have delivered assignments in recordable form to CFSC
of the mortgages, deeds of trust and security deeds relating to the
Subsequent Loans.
(c) GTFC covenants to transfer to CFSC pursuant to paragraph (a) above
Subsequent Loans with an aggregate Principal Balance approximately equal to
$-0-; provided, however, that the sole remedy of CFSC with respect to a failure
of such covenant shall be to enforce the provisions of Section 8.08 of the
Pooling and Servicing Agreement.
-5-
<PAGE>
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of GTFC. GTFC makes the
following representations and warranties, on which CFSC relies in purchasing the
Initial Loans and the Initial Other Conveyed Property and in transferring the
Initial Loans and the Initial Other Conveyed Property to the Trust under the
Pooling and Servicing Agreement. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Initial Loans and the Initial Other Conveyed Property
hereunder and the sale, transfer and assignment thereof by CFSC to the Trust
under the Pooling and Servicing Agreement. GTFC and CFSC agree that CFSC will
assign to the Trust all of CFSC's rights under this Agreement and that the Trust
will thereafter be entitled to enforce this Agreement against GTFC in the
Trust's own name.
(a) Representations Regarding Loans. The representations and
warranties set forth in Sections 3.02, 3.03, 3.04 and 3.05 of the Pooling
and Servicing Agreement are true and correct.
(b) Organization and Good Standing. GTFC has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is currently conducted, and had at all relevant times, and now
has, power, authority and legal right to acquire, own and sell the Initial
Loans and the Initial Other Conveyed Property transferred to CFSC.
(c) Due Qualification. GTFC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of its property or the conduct of its business requires such
qualification.
(d) Power and Authority. GTFC has the power and authority to execute
and deliver this Agreement and its Related Documents and to carry out its
terms and their terms, respectively; GTFC has full power and authority to
sell and assign the Initial Loans and the Initial Other Conveyed Property
to be sold and assigned to and deposited with CFSC hereunder and has duly
authorized such sale and assignment to CFSC by all necessary corporate
action; and the execution, delivery and performance of this Agreement and
GTFC's Related Documents have been duly authorized by GTFC by all necessary
corporate action.
(e) Valid Sale; Binding Obligations. This Agreement and GTFC's Related
Documents have been duly executed and delivered, shall effect a valid sale,
transfer and assignment of the Initial Loans and the Initial Other Conveyed
Property, enforceable against GTFC and creditors of and purchasers from
GTFC; and this Agreement and
-6-
<PAGE>
GTFC's Related Documents constitute legal, valid and binding obligations of
GTFC enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally
and by equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(f) No Violation. The consummation of the transactions contemplated by
this Agreement and the Related Documents and the fulfillment of the terms
of this Agreement and the Related Documents shall not conflict with, result
in any breach of any of the terms and provisions of or constitute (with or
without notice, lapse of time or both) a default under, the articles of
incorporation or bylaws of GTFC, or any indenture, agreement, mortgage,
deed of trust or other instrument to which GTFC is a party or by which it
is bound, or result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument, other than this Agreement and
the Pooling and Servicing Agreement, or violate any law, order, rule or
regulation applicable to GTFC of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over GTFC or any of its properties.
(g) No Proceedings. There are no proceedings or investigations pending
or, to GTFC's knowledge, threatened against GTFC, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over GTFC or its properties (i)
asserting the invalidity of this Agreement or any of the Related Documents,
(ii) seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this Agreement or
any of the Related Documents, (iii) seeking any determination or ruling
that might materially and adversely affect the performance by GTFC of its
obligations under, or the validity or enforceability of, this Agreement or
any of the Related Documents or (iv) seeking to affect adversely the
federal income tax or other federal, state or local tax attributes of, or
seeking to impose any excise, franchise, transfer or similar tax upon, the
transfer and acquisition of the Initial Loans and the Initial Other
Conveyed Property hereunder or under the Pooling and Servicing Agreement.
(h) Chief Executive Office. The chief executive office of GTFC is
located at 1100 Landmark Towers, 345 St. Peter Street, Saint Paul, MN
55102-1639.
SECTION 3.2. Representations and Warranties of CFSC. CFSC makes the
following representations and warranties, on which GTFC relies in selling,
assigning, transferring and conveying the Initial Loans and the Initial Other
Conveyed Property to CFSC hereunder. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Initial Loans and the Initial Other Conveyed
-7-
<PAGE>
Property hereunder and the sale, transfer and assignment thereof by CFSC to the
Trust under the Pooling and Servicing Agreement.
(a) Organization and Good Standing. CFSC has been duly organized and
is validly existing and in good standing as a corporation under the laws of
the State of Minnesota, with the power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is currently conducted, and had at all relevant times, and has,
full power, authority and legal right to acquire and own the Initial Loans
and the Initial Other Conveyed Property and to transfer the Initial Loans
and the Initial Other Conveyed Property to the Trust pursuant to the Sale
and Servicing Agreement.
(b) Due Qualification. CFSC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions where the failure to do so
would materially and adversely affect (i) CFSC's ability to acquire the
Initial Loans or the Initial Other Conveyed Property, (ii) the validity or
enforceability of the Initial Loans and the Initial Other Conveyed Property
or (iii) CFSC's ability to perform its obligations hereunder and under the
Related Documents.
(c) Power and Authority. CFSC has the power, authority and legal right
to execute and deliver this Agreement and its Related Documents and to
carry out the terms hereof and thereof and to acquire the Initial Loans and
the Initial Other Conveyed Property hereunder; and the execution, delivery
and performance of this Agreement and its Related Documents and all of the
documents required pursuant hereto or thereto have been duly authorized by
CFSC by all necessary action.
(d) No Consent Required. CFSC is not required to obtain the consent of
any other Person, or any consent, license, approval or authorization or
registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery or performance of this
Agreement and the Related Documents, except for such as have been obtained,
effected or made.
(e) Binding Obligation. This Agreement and each of its Related
Documents constitutes a legal, valid and binding obligation of CFSC,
enforceable against CFSC in accordance with its terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation and other similar laws and to
general equitable principles.
(f) No Violation. The execution, delivery and performance by CFSC of
this Agreement, the consummation of the transactions contemplated by this
Agreement and the Related Documents and the fulfillment of the terms of
this Agreement and the Related Documents do not and will not conflict with,
result in any breach of any of the terms and
-8-
<PAGE>
provisions of or constitute (with or without notice or lapse of time) a
default under the certificate of incorporation or bylaws of CFSC, or
conflict with or breach any of the terms or provisions of, or constitute
(with or without notice or lapse of time) a default under, any indenture,
agreement, mortgage, deed of trust or other instrument to which CFSC is a
party or by which CFSC is bound or to which any of its properties are
subject, or result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument (other than the Pooling and
Servicing Agreement and the Indenture), or violate any law, order, rule or
regulation, applicable to CFSC or its properties, of any federal or state
regulatory body or any court, administrative agency, or other governmental
instrumentality having jurisdiction over CFSC or any of its properties.
(g) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of CFSC, threatened against CFSC, before any
court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over CFSC or its
properties: (i) asserting the invalidity of this Agreement or any of the
Related Documents, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any of the Related
Documents, (iii) seeking any determination or ruling that might materially
and adversely affect the performance by CFSC of its obligations under, or
the validity or enforceability of, this Agreement or any of the Related
Documents or (iv) that may adversely affect the federal or state income tax
attributes of, or seeking to impose any excise, franchise, transfer or
similar tax upon, the transfer and acquisition of the Initial Loans and the
Initial Other Conveyed Property hereunder or the transfer of the Initial
Loans and the Initial Other Conveyed Property to the Trust pursuant to the
Sale and Servicing Agreement.
In the event of any breach of a representation and warranty made by CFSC
hereunder, GTFC covenants and agrees that it will not take any action to pursue
any remedy that it may have hereunder, in law, in equity or otherwise, until a
year and a day have passed since the later of (i) the date on which all
pass-through certificates or other similar securities issued by the Trust, or a
trust or similar vehicle formed by CFSC, have been paid in full, or (ii) all
Certificates or other similar securities issued by the Trust, or a trust or
similar vehicle formed by CFSC, have been paid in full. GTFC and CFSC agree that
damages will not be an adequate remedy for such breach and that this covenant
may be specifically enforced by CFSC or by the Trustee on behalf of the Trust.
-9-
<PAGE>
ARTICLE IV
COVENANTS OF GTFC
SECTION 4.1 Transfer of Loans.
(a) On or prior to the Closing Date, or the Subsequent Transfer Date in the
case of Subsequent Loans, GTFC shall deliver the Loan Files to CFSC. GTFC has
filed a form UCC-1 financing statement regarding the sale of the Loans to CFSC,
and shall file continuation statements in respect of such UCC-1 financing
statement as if such financing statement were necessary to perfect such sale.
GTFC shall take any other actions necessary to maintain the perfection of the
sale of the Loans to CFSC.
(b) If at any time during the term of this Agreement GTFC does not have a
long-term senior debt rating of A- or higher from both S&P and Fitch (if rated
by Fitch), (i) GTFC shall within 30 days execute and deliver to CFSC (if it has
not previously done so) endorsements of each Loan and assignments in recordable
form of each mortgage, deed of trust or security deed securing a Loan, and (ii)
CFSC, at GTFC's expense, shall within 60 days file in the appropriate recording
offices the assignments to CFSC of each mortgage, deed of trust or security deed
securing a Loan; provided, however, that such execution and filing of the
assignments with respect to the Loans shall not be required if CFSC receives
written confirmation from both S&P and Fitch that the ratings of the
Certificates would not be reduced or withdrawn by the failure to execute and
file such assignments; provided, however, that such execution and filing shall
not be required if GTFC delivers an Opinion of Counsel to the effect that such
assignment and recordation is not necessary to effect the assignment to CFSC of
GTFC's lien on the real property securing each Loan.
(c) If, as of the Post-Funding Payment Date, the aggregate Scheduled
Principal Balance of Loans secured by real property located in Maryland
("Maryland Loans") exceeds 10% of the Pool Scheduled Principal Balance, GTFC
shall, within sixty (60) days, submit to the appropriate recording offices the
assignments to CFSC on behalf of the Trust of the number of mortgages, deeds of
trust or security deeds required to reduce to less than 10% of the Pool
Scheduled Principal Balance the aggregate Scheduled Principal Balance of
Maryland Loans as to which such assignments are not recorded.
SECTION 4.2. Costs and Expenses. GTFC shall pay all reasonable costs and
disbursements in connection with the performance of its obligations hereunder
and under each Subsequent Purchase Agreement and its Related Documents.
SECTION 4.3. Indemnification.
(a) GTFC will defend and indemnify CFSC against any and all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel and expenses of litigation arising out of or resulting from
the use or ownership of any
-10-
<PAGE>
real estate related to a Loan by GTFC or the Servicer or any Affiliate of
either. Notwithstanding any other provision of this Agreement, the obligation of
GTFC under this Section shall not terminate upon a Service Transfer pursuant to
Article VII of the Pooling and Servicing Agreement, except that the obligation
of GTFC under this Section 4.3 shall not relate to the actions of any subsequent
Servicer after a Service Transfer.
(b) No obligation or liability to any Obligor under any of the Loans is
intended to be assumed by CFSC under or as a result of this Agreement and the
transactions contemplated hereby and, to the maximum extent permitted and valid
under mandatory provisions of law, CFSC expressly disclaims such assumption.
(c) GTFC agrees to pay, and to indemnify, defend and hold harmless CFSC
from, any taxes which may at any time be asserted with respect to, and as of the
date of, the transfer of the Loans to CFSC, including, without limitation, any
sales, gross receipts, general corporation, personal property, privilege or
license taxes and costs, expenses and reasonable counsel fees in defending
against the same, whether arising by reason of the acts to be performed by GTFC
under this Agreement or imposed against CFSC.
(d) Indemnification under this Section 4.3 shall include, without
limitation, reasonable fees and expenses of counsel and expenses of litigation.
If the Originator has made any indemnity payments to CFSC pursuant to this
Section 4.3 and CFSC thereafter collects any of such amounts from others, CFSC
will repay such amounts collected to GTFC, as the case may be, without interest.
ARTICLE V
REPURCHASES
SECTION 5.1. Repurchase of Loans Upon Breach of Warranty.
(a) Upon the occurrence of a Repurchase Event GTFC shall, unless such
breach shall have been cured in all material respects, repurchase such Loan from
the Trust pursuant to Section 3.06 of the Pooling and Servicing Agreement,
subject to the limitation of Section 3.07 of the Pooling and Servicing
Agreement. It is understood and agreed that, the obligation of GTFC to
repurchase any Loan as to which a breach has occurred and is continuing shall,
if such obligation is fulfilled, constitute the sole remedy against GTFC for
such breach available to CFSC, the Certificateholders or the Trustee on behalf
of Certificateholders. The provisions of this Section 5.1 are intended to grant
the Trustee a direct right against GTFC to demand performance hereunder, and in
connection therewith, GTFC waives any requirement of prior demand against CFSC
with respect to such repurchase obligation. Any such purchase shall take place
in the manner specified in Section 3.06 of the Pooling and Servicing Agreement.
Notwithstanding any other provision of this Agreement, any Subsequent Purchase
Agreement or the Pooling and Servicing Agreement or any Subsequent Transfer
Agreement to the contrary, the obligation of GTFC under this Section shall not
terminate upon a termination of GTFC as
-11-
<PAGE>
Servicer under the Pooling and Servicing Agreement and shall be performed in
accordance with the terms hereof notwithstanding the failure of the Servicer or
CFSC to perform any of their respective obligations with respect to such Loan
under the Pooling and Servicing Agreement.
(b) In lieu of repurchasing a Loan when required by Section 5.1(a) of this
Agreement and Section 3.06(a) of the Pooling and Servicing Agreement, GTFC may
deliver an Eligible Substitute Loan pursuant to the provisions of Section
3.06(b) of the Pooling and Servicing Agreement.
(c) In addition to the foregoing and notwithstanding whether the related
Loan shall have been purchased by GTFC, GTFC shall indemnify the Trustee, the
Trust and the Certificateholders against all costs, expenses, losses, damages,
claims and liabilities, including reasonable fees and expenses of counsel, which
may be asserted against or incurred by any of them as a result of third party
claims arising out of the events or facts giving rise to such Repurchase Events.
SECTION 5.2. Reassignment of Purchased Loans. Upon deposit of the
Repurchase Price of any Loan repurchased or replaced by GTFC under Section 5.1,
CFSC shall cause the Trustee to take such steps as may be reasonably requested
by GTFC in order to assign to GTFC all of CFSC's and the Trust's right, title
and interest in and to such Loan and all security and documents and all Other
Conveyed Property conveyed to CFSC and the Trust directly relating thereto,
without recourse, representation or warranty, except as to the absence of liens,
charges or encumbrances created by or arising as a result of actions of CFSC or
the Trustee. Such assignment shall be a sale and assignment outright, and not
for security. If, following the reassignment of a Loan, in any enforcement suit
or legal proceeding, it is held that GTFC may not enforce any such Loan on the
ground that it shall not be a real party in interest or a holder entitled to
enforce the Loan, CFSC and the Trustee shall, at the expense of GTFC, take such
steps as GTFC deems reasonably necessary to enforce the Loan, including bringing
suit in CFSC's or the Trustee's name.
SECTION 5.3. Waivers. No failure or delay on the part of CFSC, or the
Trustee as assignee of CFSC, in exercising any power, right or remedy under this
Agreement or under any Subsequent Purchase Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power, right or
remedy preclude any other or future exercise thereof or the exercise of any
other power, right or remedy.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Liability of GTFC. GTFC shall be liable in accordance herewith
only to the extent of the obligations in this Agreement or in any Subsequent
Purchase Agreement specifically undertaken by GTFC and the representations and
warranties of GTFC.
-12-
<PAGE>
SECTION 6.2. Merger or Consolidation of GTFC or CFSC. Any corporation or
other entity (i) into which GTFC or CFSC may be merged or consolidated, (ii)
resulting from any merger or consolidation to which GTFC or CFSC is a party or
(iii) succeeding to the business of GTFC or CFSC, in the case of CFSC, which
corporation has a certificate of incorporation containing provisions relating to
limitations on business and other matters substantively identical to those
contained in CFSC's certificate of incorporation, provided that in any of the
foregoing cases such corporation shall execute an agreement of assumption to
perform every obligation of GTFC or CFSC, as the case may be, under this
Agreement and each Subsequent Purchase Agreement and, whether or not such
assumption agreement is executed, shall be the successor to GTFC or CFSC, as the
case may be, hereunder and under each such Subsequent Purchase Agreement
(without relieving GTFC or CFSC of its responsibilities hereunder, if it
survives such merger or consolidation) without the execution or filing of any
document or any further act by any of the parties to this Agreement or each
Subsequent Purchase Agreement. GTFC or CFSC shall promptly inform the other
party and the Trustee of such merger, consolidation or purchase and assumption.
Notwithstanding the foregoing, as a condition to the consummation of the
transactions referred to in clauses (i), (ii) and (iii) above, (x) immediately
after giving effect to such transaction, no representation or warranty made
pursuant to Sections 3.1 and 3.2 and this Agreement, or similar representation
or warranty made in any Subsequent Purchase Agreement, shall have been breached
(for purposes hereof, such representations and warranties shall speak as of the
date of the consummation of such transaction), (y) GTFC or CFSC, as applicable,
shall have delivered written notice of such consolidation, merger or purchase
and assumption to the Rating Agencies prior to the consummation of such
transaction and shall have delivered to the Trustee an Officer's Certificate and
an Opinion of Counsel each stating that such consolidation, merger or succession
and such agreement of assumption comply with this Section 6.3 and that all
conditions precedent, if any, provided for in this Agreement, or in each
Subsequent Purchase Agreement, relating to such transaction have been complied
with, and (z) GTFC or CFSC, as applicable, shall have delivered to the Trustee
an Opinion of Counsel, stating that, in the opinion of such counsel, either (A)
all financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary to preserve and protect the interest
of the Trustee in the Trust Property and reciting the details of the filings or
(B) no such action shall be necessary to preserve and protect such interest.
SECTION 6.3. Limitation on Liability of GTFC and Others. GTFC shall not be
under any obligation to appear in, prosecute or defend any legal action that is
not incidental to its obligations under this Agreement, any Subsequent Purchase
Agreement or its Related Documents and that in its opinion may involve it in any
expense or liability.
-13-
<PAGE>
SECTION 6.4. Amendment.
(a) This Agreement and any Subsequent Purchase Agreement may be amended by
GTFC and CFSC and without the consent of the Trustee or any of the
Certificateholders (A) to cure any ambiguity or (B) to correct any provisions in
this Agreement or any such Subsequent Purchase Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel delivered to
the Trustee, adversely affect in any material respect the interests of any
Certificateholder.
(b) This Agreement may also be amended from time to time by GTFC and CFSC,
with the prior written consent of the Trustee and the Holders of Certificates
representing, in the aggregate, 66 2/3% or more of the Aggregate Certificate
Principal Balance, 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 Certificateholders; provided, however,
that no such amendment shall (i) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments on the Loans or,
distributions that are required to be made on any Certificate or (ii) reduce the
aforesaid percentage required to consent to any such amendment or any waiver
hereunder, without the consent of the Holders of all Certificates then
outstanding.
(c) This Agreement shall not be amended under this Section without the
consent of 100% of the Certificateholders and the Class C Certificateholders if
such amendment would result in the disqualification of the Trust as a REMIC
under the Code.
(d) Concurrently with the solicitation of any consent pursuant to this
Section 6.4, CFSC shall furnish written notification to S&P and Fitch. Promptly
after the execution of any amendment or consent pursuant to this Section 6.4,
CFSC shall furnish written notification of the substance of such amendment to
S&P, Fitch, each Certificateholder and the Class C Certificateholders.
(e) It shall not be necessary for the consent of Certificateholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as the Trustee may prescribe, including
the establishment of record dates. The consent of any Holder of a Certificate
given pursuant to this Section or pursuant to any other provision of this
Agreement shall be conclusive and binding on such Holder and on all future
Holders of such Certificate and of any Certificate issued upon the transfer
thereof or in exchange thereof or in lieu thereof whether or not notation of
such consent is made upon the Note.
SECTION 6.5. Notices. All demands, notices and communications to GTFC or
CFSC hereunder shall be in writing, personally delivered, or sent by telecopier
(subsequently
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<PAGE>
confirmed in writing), reputable overnight courier or mailed by certified mail,
return receipt requested, and shall be deemed to have been given upon receipt
(a) in the case of GTFC, to Green Tree Financial Corp., 1100 Landmark Towers,
345 St. Peter Street, Saint Paul, Minnesota 55102-1639, Attention: Chief
Financial Officer, or such other address as shall be designated by GTFC in a
written notice delivered to the other party or to the Trustee or (b) in case of
CFSC, to Conseco Finance Securitizations Corp., 1100 Landmark Towers, 345 St.
Peter Street, Saint Paul, Minnesota 55102-1639, Attention: Chief Financial
Officer.
SECTION 6.6. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement and the Related Documents set 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 and the
Related Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 6.7. Severability of Provisions. If any one or more of the
covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
SECTION 6.8. Intention of the Parties. The execution and delivery of this
Agreement and of each Subsequent Purchase Agreement shall constitute an
acknowledgment by GTFC and CFSC that they intend that each assignment and
transfer herein and therein contemplated constitute a sale and assignment
outright, and not for security, of the Initial Loans and the Initial Other
Conveyed Property and the Subsequent Loans and Subsequent Other Conveyed
Property, as the case may be, conveying good title thereto free and clear of any
Liens, from GTFC to CFSC, and that the Initial Loans and the Initial Other
Conveyed Property and the Subsequent Loans and Subsequent Other Conveyed
Property shall not be a part of GTFC's estate in the event of the bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law, or the
occurrence of another similar event, of, or with respect to, GTFC. In the event
that such conveyance is determined to be made as security for a loan made by
CFSC, the Trust or the Certificateholders to GTFC, the parties intend that GTFC
shall have granted to CFSC a security interest in all of GTFC's right, title and
interest in and to the Initial Loans and the Initial Other Conveyed Property and
the Subsequent Loans and Subsequent Other Conveyed Property, as the case may be,
conveyed pursuant to Section 2.1 hereof or pursuant to any Subsequent Purchase
Agreement, and that this Agreement and each Subsequent Purchase Agreement shall
constitute a security agreement under applicable law.
SECTION 6.9. Governing Law. This Agreement shall be construed in accordance
with, the laws of the State of Minnesota without regard to the principles of
conflicts of laws thereof, and the obligations, rights and remedies of the
parties under this Agreement shall be determined in accordance with such laws.
-15-
<PAGE>
SECTION 6.10. Counterparts. For the purpose of facilitating the execution
of this Agreement and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and all of which counterparts shall constitute but
one and the same instrument.
SECTION 6.11. Conveyance of the Initial Loans and the Initial Other
Conveyed Property to the Trust. GTFC acknowledges that CFSC intends, pursuant to
the Pooling and Servicing Agreement, to convey the Initial Loans and the Initial
Other Conveyed Property, together with its rights under this Agreement, to the
Trust on the date hereof. GTFC acknowledges and consents to such conveyance and
waives any further notice thereof and covenants and agrees that the
representations and warranties of GTFC contained in this Agreement and the
rights of CFSC hereunder are intended to benefit the Trustee, the Trust, and the
Certificateholders. In furtherance of the foregoing, GTFC covenants and agrees
to perform its duties and obligations hereunder, in accordance with the terms
hereof for the benefit of the Trustee, the Trust, and the Certificateholders and
that, notwithstanding anything to the contrary in this Agreement, GTFC shall be
directly liable to the Trustee and the Trust (notwithstanding any failure by the
Servicer or CFSC to perform its duties and obligations hereunder or under the
Pooling and Servicing Agreement) and that the Trustee may enforce the duties and
obligations of GTFC under this Agreement against GTFC for the benefit of the
Trust and the Certificateholders.
SECTION 6.12. Nonpetition Covenant. Neither CFSC nor GTFC shall petition or
otherwise invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Trust (or, in the case of
GTFC, against CFSC) under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Trust (or CFSC) or any substantial
part of its property, or ordering the winding up or liquidation of the affairs
of the Trust (or CFSC).
-16-
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Transfer Agreement to be
duly executed by their respective officers as of the day and year first above
written.
CONSECO FINANCE SECURITIZATIONS CORP.,
as Purchaser
By
-------------------------------------
Name: Phyllis A. Knight
Title: Senior Vice President and
Treasurer
GREEN TREE FINANCIAL CORP., as Seller
By
-------------------------------------
Name: Phyllis A. Knight
Title: Senior Vice President and
Treasurer
-17-
<PAGE>
SCHEDULE A
SCHEDULE OF INITIAL LOANS
[Included as Exhibits L-1, L-2, L-3 and L-4 to Pooling and Servicing Agreement]
A-1
<PAGE>
EXHIBIT A
FORM OF
SUBSEQUENT TRANSFER AGREEMENT
between
CONSECO FINANCE SECURITIZATIONS CORP.
Purchaser
and
GREEN TREE FINANCIAL CORP.
Seller
dated as of
________, 1999
<PAGE>
SUBSEQUENT TRANSFER AGREEMENT, dated as of ________, 1999, between Conseco
Finance Securitizations Corp., a Minnesota corporation, as purchaser ("CFSC"),
and Green Tree Financial Corp., a Delaware corporation, as seller ("GTFC"),
pursuant to the Transfer Agreement, dated as of September 1, 1999, between CFSC
and GTFC.
W I T N E S S E T H:
WHEREAS, GTFC and CFSC are parties to a Transfer Agreement, dated as of
September 1, 1999 (as amended or supplemented, the "Transfer Agreement");
WHEREAS, pursuant to the Transfer Agreement and this Agreement, CFSC has
agreed to purchase from GTFC and GTFC is transferring to CFSC the Subsequent
Loans and the Subsequent Other Conveyed Property.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter contained, and for other good and valuable consideration, the
receipt of which is acknowledged, CFSC and GTFC, intending to be legally bound,
hereby agree as follows:
1. Defined Terms. Capitalized terms used but not otherwise defined herein
shall have the respective meanings assigned to such terms in the Transfer
Agreement.
"Schedule of Subsequent Loans" means the schedule of all home equity loans
sold and transferred pursuant to this Agreement attached hereto as Schedule A,
which Schedule of Subsequent Loans shall supplement the Schedule of Initial
Loans attached to the Transfer Agreement.
"Subsequent Cutoff Date" shall mean, with respect to the Subsequent Loans
conveyed hereby, _________, 1999.
"Subsequent Other Conveyed Property" means, for the purposes of this
Agreement, all monies at any time paid or payable on the Subsequent Loans
conveyed hereby or in respect thereof after the Subsequent Cutoff Date
(including amounts due on or before the Subsequent Cutoff Date but received by
GTFC after the Subsequent Cutoff Date), an assignment of security interests in
the related real estate and any and all other documents or electronic records
that GTFC keeps on file in accordance with its customary procedures relating to
the Subsequent Loans, the Obligors or the related real estate, property
(including the right to receive future Liquidation Proceeds) that secures a
Subsequent Loan and that has been acquired by or on behalf of the Trust pursuant
to liquidation of such Subsequent Loan, and all proceeds of the foregoing.
"Subsequent Loans" means, for purposes of this Agreement, the Loans listed
in the Schedule of Subsequent Loans.
Ex. A-1
<PAGE>
2. Conveyance of the Subsequent Loans and the Subsequent Other Conveyed
Property. Subject to the terms and conditions of this Agreement and the Transfer
Agreement, GTFC hereby sells, transfers, assigns, and otherwise conveys to CFSC
without recourse (but without limitation of its obligations in this Agreement
and the Transfer Agreement), and CFSC hereby purchases, all right, title and
interest of GTFC in and to the Subsequent Loans and the Subsequent Other
Conveyed Property. It is the intention of GTFC and CFSC that the transfer and
assignment contemplated by this Agreement shall constitute a sale of the
Subsequent Loans and the Subsequent Other Conveyed Property from GTFC to CFSC,
conveying good title thereto free and clear of any Liens, and the Subsequent
Loans and the Subsequent Other Conveyed Property shall not be part of GTFC's
estate in the event of the filing of a bankruptcy petition by or against GTFC
under any bankruptcy or similar law.
3. Purchase Price. Simultaneously with the conveyance of the Subsequent
Loans and the Subsequent Other Conveyed Property to CFSC, CFSC has paid or
caused to be paid to or upon the order of GTFC, by wire transfer of immediately
available funds (representing certain proceeds to CFSC from the sale of the
Certificates on deposit in the Pre-Funding Account), the amount of funds as
specified below:
(i) Principal Balance of Subsequent Loans: $_______
(ii) Proceeds to GTFC: $_______
4. Representations and Warranties of GTFC. GTFC makes the following
representations and warranties, on which CFSC relies in purchasing the
Subsequent Loans and the Subsequent Other Conveyed Property and in transferring
the Subsequent Loans and the Subsequent Other Conveyed Property to the Trust
under the Subsequent Transfer Agreement. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Subsequent Loans and the Subsequent Other Conveyed
Property hereunder, and the sale, transfer and assignment thereof by CFSC to the
Trust under the Subsequent Transfer Agreement. GTFC and CFSC agree that CFSC
will assign to the Trust all of CFSC's rights under the Agreement, and that the
Trust will thereafter be entitled to enforce this Agreement against GTFC in the
Trust's own name.
(a) Schedule of Representations. The representations and warranties
set forth in Sections 3.02, 3.03 and 3.04 of the Pooling and Servicing
Agreement are true and correct.
(b) Organization and Good Standing. GTFC has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to
conduct its business as such
Ex. A-2
<PAGE>
properties are currently owned and such business is currently conducted, and had
at all relevant times, and now has, power, authority and legal right to acquire,
own and sell the Subsequent Loans and the Subsequent Other Conveyed Property
transferred to CFSC.
(c) Due Qualification. GTFC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of its property or the conduct of its business requires such
qualification.
(d) Power and Authority. GTFC has the power and authority to execute
and deliver this Agreement and the Subsequent Transfer Agreement and to
carry out its terms and their terms, respectively; GTFC has full power and
authority to sell and assign the Subsequent Loans and the Subsequent Other
Conveyed Property to be sold and assigned to and deposited with CFSC
hereunder and has duly authorized such sale and assignment to CFSC by all
necessary corporate action; and the execution, delivery and performance of
this Agreement and the Subsequent Transfer Agreement have been duly
authorized by GTFC by all necessary corporate action.
(e) Valid Sale; Binding Obligations. This Agreement and the Subsequent
Transfer Agreement have been duly executed and delivered, shall effect a
valid sale, transfer and assignment of the Subsequent Loans and the
Subsequent Other Conveyed Property, enforceable against GTFC and creditors
of and purchasers from GTFC; and this Agreement and the Subsequent Transfer
Agreement constitute legal, valid and binding obligations of GTFC
enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally
and by equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(f) No Violation. The consummation of the transactions contemplated by
this Agreement and the Subsequent Transfer Agreement and the fulfillment of
the terms of this Agreement and the Subsequent Transfer Agreement shall not
conflict with, result in any breach of any of the terms and provisions of
or constitute (with or without notice, lapse of time or both) a default
under, the articles of incorporation or bylaws of GTFC, or any indenture,
agreement, mortgage, deed of trust or other instrument to which GTFC is a
party or by which it is bound, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument, other
than this Agreement and the Subsequent Transfer Agreement, or violate any
law, order, rule or regulation applicable to GTFC of any court or of any
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over GTFC or any of its
properties.
Ex. A-3
<PAGE>
(g) No Proceedings. There are no proceedings or investigations pending
or, to GTFC's knowledge, threatened against GTFC, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over GTFC or its properties (i)
asserting the invalidity of this Agreement or the Subsequent Transfer
Agreement, (ii) seeking to prevent or the consummation of any of the
transactions contemplated by this Agreement or the Subsequent Transfer
Agreement, (iii) seeking any determination or ruling that might materially
and adversely affect the performance by GTFC of its obligations under, or
the validity or enforceability of, this Agreement or the Subsequent
Transfer Agreement, or (iv) seeking to affect adversely the federal income
tax or other federal, state or local tax attributes of, or seeking to
impose any excise, franchise, transfer or similar tax upon, the transfer
and acquisition of the Subsequent Loans and the Subsequent Other Conveyed
Property hereunder or under the Subsequent Transfer Agreement.
(h) Insolvency. As of the Subsequent Cutoff Date and the Subsequent
Transfer Date, neither GTFC nor CFSC is insolvent nor will either of them
have been made insolvent after giving effect to the conveyance set forth in
Section 2 of this Agreement, nor are any of them aware of any pending
insolvency.
(i) Chief Executive Office. The chief executive office of GTFC is
located at 1100 Landmark Towers, 345 St. Peter Street, Saint Paul,
Minnesota 55102-1639.
5. Representations and Warranties of CFSC. CFSC makes the following
representations and warranties, on which GTFC relies in selling, assigning,
transferring and conveying the Subsequent Loans and the Subsequent Other
Conveyed Property to CFSC hereunder. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Subsequent Loans and the Subsequent Other Conveyed
Property hereunder and the sale, transfer and assignment thereof by CFSC to the
Trust under the Subsequent Transfer Agreement.
(a) Organization and Good Standing. CFSC has been duly organized and
is validly existing and in good standing as a corporation under the laws of
the State of Minnesota, with the power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is currently conducted, and had at all relevant times, and has,
full power, authority and legal right to acquire and own the Subsequent
Loans and the Subsequent Other Conveyed Property, and to transfer the
Subsequent Loans and the Subsequent Other Conveyed Property to the Trust
pursuant to the Subsequent Transfer Agreement.
(b) Due Qualification. CFSC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions where the failure to do so
would materially and adversely affect CFSC's ability to acquire the
Subsequent Loans or the Subsequent Other Conveyed Property or
Ex. A-4
<PAGE>
the validity or enforceability of the Subsequent Loans and the Subsequent
Other Conveyed Property or to perform CFSC's obligations hereunder and
under the Subsequent Transfer Agreement.
(c) Power and Authority. CFSC has the power, authority and legal right
to execute and deliver this Agreement and to carry out the terms hereof and
to acquire the Subsequent Loans and the Subsequent Other Conveyed Property
hereunder; and the execution, delivery and performance of this Agreement
and all of the documents required pursuant hereto have been duly authorized
by CFSC by all necessary action.
(d) No Consent Required. CFSC is not required to obtain the consent of
any other Person, or any consent, license, approval or authorization or
registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery or performance of this
Agreement and the Subsequent Transfer Agreement, except for such as have
been obtained, effected or made.
(e) Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of CFSC, enforceable against CFSC in accordance with its
terms, subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other
similar laws and to general equitable principles.
(f) No Violation. The execution, delivery and performance by CFSC of
this Agreement, the consummation of the transactions contemplated by this
Agreement and the Subsequent Transfer Agreement and the fulfillment of the
terms of this Agreement and the Subsequent Transfer Agreement do not and
will not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time) a
default under, the certificate of incorporation or bylaws of CFSC, or
conflict with or breach any of the terms or provisions of, or constitute
(with or without notice or lapse of time) a default under, any indenture,
agreement, mortgage, deed of trust or other instrument to which CFSC is a
party or by which CFSC is bound or to which any of its properties are
subject, or result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument (other than the Pooling and
Servicing Agreement and the Subsequent Transfer Agreement), or violate any
law, order, rule or regulation, applicable to CFSC or its properties, of
any federal or state regulatory body, any court, administrative agency, or
other governmental instrumentality having jurisdiction over CFSC or any of
its properties.
(g) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of CFSC, threatened against CFSC, before any
court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over CFSC or its
properties: (i) asserting the invalidity of this Agreement or the
Subsequent Transfer Agreement, (ii) seeking to prevent the consummation of
any of
Ex. A-5
<PAGE>
the transactions contemplated by this Agreement or the Subsequent Transfer
Agreement, (iii) seeking any determination or ruling that might materially
and adversely affect the performance by CFSC of its obligations under, or
the validity or enforceability of, this Agreement or the Subsequent
Transfer Agreement, or (iv) that may adversely affect the federal or state
income tax attributes of, or seeking to impose any excise, franchise,
transfer or similar tax upon, the transfer and acquisition of the
Subsequent Loans and the Subsequent Other Conveyed Property hereunder or
the transfer of the Subsequent Loans and the Subsequent Other Conveyed
Property to the Trust pursuant to the Subsequent Transfer Agreement.
In the event of any breach of a representation and warranty made by CFSC
hereunder, GTFC covenants and agrees that it will not take any action to pursue
any remedy that it may have hereunder, in law, in equity or otherwise, until a
year and a day have passed since the date on which all pass-through certificates
or other similar securities issued by the Trust, or a trust or similar vehicle
formed by CFSC, have been paid in full. GTFC and CFSC agree that damages will
not be an adequate remedy for such breach and that this covenant may be
specifically enforced by CFSC or by the Trustee on behalf of the Trust.
6. Conditions Precedent. The obligation of CFSC to acquire the Subsequent
Loans and the Subsequent Other Conveyed Property hereunder is subject to the
satisfaction, on or prior to the Subsequent Transfer Date, of the following
conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the GTFC in Section 4 of this Agreement and in Section
3.1 of the Transfer Agreement shall be true and correct as of the date of
this Agreement and as of the Subsequent Transfer Date.
(b) Transfer Agreement Conditions. Each of the conditions set forth in
Section 2.3(b) of the Transfer Agreement applicable to the conveyance of
Subsequent Loans and the Subsequent Other Conveyed Property shall have been
satisfied.
(c) Additional Information. GTFC shall have delivered to CFSC such
information as was reasonably requested by CFSC to satisfy itself as to (i)
the accuracy of the representations and warranties set forth in Section 4
of this Agreement and in Section 3.1 of the Transfer Agreement and (ii) the
satisfaction of the conditions set forth in this Section 6.
7. Ratification of Transfer Agreement. As supplemented by this Agreement,
the Transfer Agreement is in all respects ratified and confirmed and the
Transfer Agreement as so supplemented by this Agreement shall be read, taken and
construed as one and the same instrument.
Ex. A-6
<PAGE>
8. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of Minnesota without regard to the principles of conflicts of
laws thereof, and the obligations, rights and remedies of the parties under this
Agreement shall be determined in accordance with such laws.
9. Counterparts. For the purposes of facilitating the execution of this
Agreement and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and all of which counterparts shall constitute but one and the same
instrument.
10. Conveyance of the Subsequent Loans and the Subsequent Other Conveyed
Property to the Trust. GTFC acknowledges that CFSC intends, pursuant to a
Subsequent Transfer Agreement, to convey the Subsequent Loans and the Subsequent
Other Conveyed Property, together with its rights under this Agreement and under
the Transfer Agreement, to the Trust on the date hereof. GTFC acknowledges and
consents to such conveyance and waives any further notice thereof and covenants
and agrees that the representations and warranties of GTFC contained in this
Agreement and the rights of CFSC hereunder and thereunder are intended to
benefit the Trustee, the Trust and the Certificateholders. In furtherance of the
foregoing, GTFC covenants and agrees to perform its duties and obligations
hereunder and under the Transfer Agreement, in accordance with the terms hereof
and thereof for the benefit of the Trustee, the Trust and the Certificateholders
and that, notwithstanding anything to the contrary in this Agreement or in the
Transfer Agreement, GTFC shall be directly liable to the Trustee and the Trust
(notwithstanding any failure by CFSC to perform its duties and obligations
hereunder or under the Pooling and Servicing Agreement or the Subsequent
Transfer Agreement) and that the Trustee may enforce the duties and obligations
of GTFC under this Agreement and the Transfer Agreement against GTFC for the
benefit of the Trust and the Certificateholders.
Ex. A-7
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.
CONSECO FINANCE SECURITIZATIONS CORP.,
as Purchaser
By
-------------------------------------
Name: Phyllis A. Knight
Title: Senior Vice President and
Treasurer
GREEN TREE FINANCIAL CORP., as Seller
By
-------------------------------------
Name: Phyllis A. Knight
Title: Senior Vice President and
Treasurer
Ex. A-8
<PAGE>
DORSEY & WHITNEY LLP
Pillsbury Center South
220 South Sixth Street
Minneapolis, Minnesota 55402-1498
Telephone: (612) 340-2600
Fax: (612) 340-2868
EXHIBIT 5.1
-----------
Green Tree Financial Corporation
1100 Landmark Towers
345 St. Peter Street
St. Paul, Minnesota 55102-1639
Conseco Finance Securitizations Corp.
1100 Landmark Towers
345 St. Peter Street
St. Paul, Minnesota 55102-1639
Re: Registration Statements on Form S-3
File Nos. 333-85119 and 333-85119-01
Ladies and Gentlemen:
We have acted as counsel to Green Tree Financial Corporation, a
Delaware corporation (the "Company") and Conseco Finance Securitizations Corp.
(the "Seller"), in connection with the preparation and filing with the
Securities and Exchange Commission (the "Commission") of a Registration
Statement on Form S-3 (File Nos. 333-85119 and 333-85119-01) (hereinafter
referred to as the "Registration Statement") under the Securities Act of 1933,
as amended, relating to an aggregate of $5,000,000,000 of Certificates for Home
Improvement and Home Equity Loans to be issued from time to time in series under
separate Pooling and Servicing Agreements, and the preparation of a Prospectus
Supplement dated September 24, 1999, and the related Prospectus dated September
24, 1999 (together, the "Prospectus") relating to the offer and sale by the
Company of $750,000,000 (approximate) aggregate principal amount of Certificates
for Home Equity Loans, Series 1999-F (the "Certificates"), to be issued under a
Pooling and Servicing Agreement, dated as of September 1, 1999 (the "Pooling and
Servicing Agreement") among the Company, the Seller and U.S. Bank Trust National
Association, as Trustee (the "Trustee"). Capitalized terms used herein and not
defined have the meanings assigned thereto in the Pooling and Servicing
Agreement.
The Company will provide a Class B-2 Limited Guaranty with respect to
the Class B-2 Certificates.
We have examined the Registration Statement, the Prospectus, the
Pooling and Servicing Agreement, and such other related documents, and have
reviewed such questions of law, as we have considered necessary and appropriate
for the purposes of this opinion. Based on the foregoing, we are of the opinion
that:
1. The Pooling and Servicing Agreement has been duly authorized by the
Boards of Directors of the Company and the Seller, respectively, and duly
executed and delivered by the Company and the Seller and constitutes the valid
and binding obligation of the Company and the Seller, and the Class B-2 Limited
Guaranty of the Company provided for therein constitute the valid and binding
obligations of the Company.
<PAGE>
Green Tree Financial Corporation
Conseco Finance Securitizations Corp.
October 4, 1999
Page 2
2. The Certificates have been duly executed and delivered in accordance
with the terms of the Pooling and Servicing Agreement and are legally and
validly issued, and the holders of such Certificates are entitled to the
benefits of the Pooling and Servicing Agreement.
The opinions set forth above are subject to the following
qualifications and exceptions:
(a) Our opinion in paragraph 1 above is subject to the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium or
other similar law of general application affecting creditors' rights.
(b) Our opinion in paragraph 1 above is subject to the effect
of general principles of equity, including (without limitation)
concepts of materiality, reasonableness, good faith and fair dealing,
and other similar doctrines affecting the enforceability of agreements
generally (regardless of whether considered in a proceeding in equity
or at law).
(c) Minnesota Statutes ss. 290.371, Subd. 4, provides that any
corporation required to file a Notice of Business Activities Report
does not have a cause of action upon which it may bring suit under
Minnesota law unless the corporation has filed a Notice of Business
Activities Report and provides that the use of the courts of the State
of Minnesota for all contracts executed and all causes of action that
arose before the end of any period for which a corporation failed to
file a required report is precluded. Insofar as our opinion may relate
to the valid, binding and enforceable character of any agreement under
Minnesota law or in a Minnesota court, we have assumed that any party
seeking to enforce such agreement has at all times been, and will
continue at all times to be, exempt from the requirement of filing a
Notice of Business Activities Report or, if not exempt, has duly filed,
and will continue to duly file, all Notice of Business Activities
Reports.
Our opinions expressed above are limited to the laws of the State of
Minnesota and the Delaware General Corporation Law.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and to the reference to our firm under the heading
"Legal Matters" in the Prospectus comprising part of the Registration Statement.
Dated: October 4, 1999
Very truly yours,
/s/ Charles F. Sawyer
CFS
<PAGE>
DORSEY & WHITNEY LLP
Pillsbury Center South
220 South Sixth Street
Minneapolis, Minnesota 55402-1498
Telephone: (612) 340-2600
Fax: (612) 340-2868
EXHIBIT 8.1
-----------
Green Tree Financial Corporation
1100 Landmark Towers
345 St. Peter Street
St. Paul, MN 55102-1639
Conseco Finance Securitizations Corp.
1100 Landmark Towers
345 St. Peter Street
St. Paul, MN 55102-1639
Re: Federal Income Tax Consequences of Certificates
for Home Improvement and Home Equity Loans
Ladies and Gentlemen:
We have acted as counsel to Green Tree Financial Corporation, a
Delaware corporation (the "Company") and Conseco Finance Securitizations Corp.
(the "Seller"), in connection with the preparation and filing with the
Securities and Exchange Commission (the "Commission") of a Registration
Statement on Form S-3 (File Nos. 333-85119 and 333-85119-01) (together,
hereinafter referred to as the "Registration Statement") under the Securities
Act of 1933, as amended, relating to an aggregate of $5,000,000,000 of
Certificates for Home Equity Loans to be issued from time to time in series
under separate Pooling and Servicing Agreements, and the preparation of a
Prospectus Supplement dated September 24, 1999, and the related Prospectus dated
September 24, 1999 (together, the "Prospectus") relating to the offer and sale
by the Company of $750,000,000 (approximate) aggregate principal amount of
Certificates for Home Equity Loans Series, 1999-F (the "Certificates"), to be
issued under a Pooling and Servicing Agreement, dated as of September 1, 1999
(the "Pooling and Servicing Agreement") among the Company, the Seller and U.S.
Bank Trust National Association, as Trustee (the "Trustee"). Capitalized terms
used herein and not defined have the meanings assigned thereto in the Pooling
and Servicing Agreement.
You have requested our opinion with respect to certain federal income
tax consequences of the purchase, ownership and disposition of the Certificates.
For purposes of rendering our opinion we have examined the Registration
Statement, the Prospectus and the Pooling and Servicing Agreement.
Our opinion is based upon existing law and currently applicable
Treasury Department regulations, current published administrative positions of
the Internal Revenue Service contained in revenue rulings and revenue
procedures, and judicial decisions, all of which are subject to change, either
prospectively or retroactively, and to possibly differing interpretations. Our
opinion is also based on the representations and warranties set forth in the
<PAGE>
Green Tree Financial Corporation
Conseco Finance Securitizations Corp.
October 4, 1999
Page 2
Pooling and Servicing Agreement and the assumptions that the Company and the
Trustee will at all times comply with the requirements of the Pooling and
Servicing Agreement, including, without limitation, the requirement that a
proper election to be taxed as a real estate mortgage investment conduit
("REMIC") under the Internal Revenue Code of 1986, as amended (the "Code") is
made in accordance with the Pooling and Servicing Agreement and the Code and
that the Certificates will be issued as described in the Prospectus.
Based upon the foregoing, as of the date hereof it is our opinion that
the Trust created pursuant to the Pooling and Servicing Agreement will qualify
as two separate REMICs under the Code and under the REMIC Regulations, and that
the Certificates will evidence ownership of the "regular interests" in the
Master REMIC, the Subsidiary Regular Interests will evidence ownership of the
"regular interests" in the Subsidiary REMIC and the Class C Master Certificate
and the Class C Subsidiary Certificate will evidence ownership of the single
class of "residual interests" in the Master REMIC and the Subsidiary REMIC,
respectively.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "Certain
Federal Income Tax Consequences" in the Prospectus, and we hereby confirm that,
insofar as they constitute statements of law or legal conclusions as to the
likely outcome of material issues under the federal income tax laws, the
discussion under such heading accurately sets forth our advice.
Dated: October 4, 1999
Very truly yours,
/s/ Charles F. Sawyer
CFS
