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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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): November 30, 1999
VANDERBILT MORTGAGE AND FINANCE, INC. (as seller and
servicer under the Pooling and Servicing Agreement, dated as
of October 26, 1999, providing for the issuance of the
Vanderbilt Mortgage and Finance, Inc., Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificates,
Series 1999D).
CLAYTON HOMES, INC.
VANDERBILT MORTGAGE AND FINANCE, INC.
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(Exact name of registrant as specified in its charter)
Clayton Homes, Inc. - Del.
Vanderbilt - Tennessee 333-75405 62-0997810
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
500 Alcoa Trail
Maryville, Tennessee 37804
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(Address of Principal (Zip Code)
Executive Offices)
Registrant's telephone number, including area code: (423) 380-3000
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Former Address:
4726 Airport Highway, Louisville, Tennessee 37777
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<PAGE>
Item 5. Other Events
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On November 30, 1999, Vanderbilt Mortgage and Finance, Inc. (the
"Company") entered into a Pooling and Servicing Agreement dated as of October
26, 1999 (the "Pooling and Servicing Agreement"), by and among, the Company,
as seller and servicer, Clayton Homes, Inc., as provider of the limited
guarantee ("CHI"), and The Bank of New York, as trustee (the "Trustee"). The
Pooling and Servicing Agreement is annexed hereto as Exhibit 1.
Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits.
------------------------
(a) Not applicable.
(b) Not applicable.
(c) Exhibits:
1. The Pooling and Servicing Agreement, dated as of October 26,
1999, by and among, the Company, CHI and the Trustee, providing for
the issuance of the Certificates.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrants have duly caused this report to be signed on their behalf by
the undersigned hereunto duly authorized.
VANDERBILT MORTGAGE AND FINANCE, INC.
By: /s/ David R. Jordan
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Name: David R. Jordan
Title: Secretary
CLAYTON HOMES, INC.
By /s/ Carl Koella
--------------------------
Name: Carl Koella
Title: Secretary
Dated: December 15, 1999
<PAGE>
Exhibit Index
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Exhibit Page
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1. Pooling and Servicing Agreement 6
<PAGE>
{EXECUTION COPY]
VANDERBILT MORTGAGE AND FINANCE, INC.,
AS SELLER AND SERVICER,
CLAYTON HOMES, INC.,
AS PROVIDER OF THE LIMITED GUARANTEE
and
THE BANK OF NEW YORK, AS TRUSTEE
POOLING AND SERVICING AGREEMENT
Dated as of October 26, 1999
Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificates
Series 1999D
<PAGE>
TABLE OF CONTENTS
PAGE
Article I
DEFINITIONS
Section 1.01. Definitions.....................................................1
Section 1.02. Determination of Scheduled Payments............................41
Article II
CONVEYANCE OF CONTRACTS; TRUST FUND; PERFECTION OF SECURITY
INTEREST; CUSTODY OF CONTRACTS
Section 2.01. Conveyance of Contracts and Other Rights.......................42
Section 2.02. Filing; Name Change or Relocation..............................43
Section 2.03. Acceptance by Trustee..........................................44
Section 2.04. Delivery of Land-and-Home Contract Files and
Mortgage Loan Files and Recordation.........................44
Section 2.05. REMIC Election; Designation of Regular and Residual
Interests; Tax Year ........................................46
Section 2.06. Designation of Startup Day.....................................46
Section 2.07. REMIC Certificate Maturity Date................................46
Article III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties Regarding the Company...........47
Section 3.02. Representations and Warranties Regarding Each Contract.........48
Section 3.03. Representations and Warranties Regarding the Contracts
in the Aggregate ...........................................51
Section 3.04. Representations and Warranties Regarding the Contract
Files, the Land-and-Home Contract Files and the
Mortgage Loan Files.........................................52
Section 3.05. Repurchases of Contracts or Substitution of Contracts
for Breach of Representations and Warranties................52
Article IV
THE CERTIFICATES
Section 4.01. The Certificates...............................................56
Section 4.02. Registration of Transfer and Exchange of Certificates..........57
Section 4.03. Mutilated, Destroyed, Lost or Stolen Certificate...............60
Section 4.04. Persons Deemed Owners..........................................61
Section 4.05. Appointment of Paying Agent....................................61
Section 4.06. Access to List of Certificateholders' Names and Addresses......61
Section 4.07. Authenticating Agents..........................................61
Section 4.08. Class R Certificate............................................62
Article V
ADMINISTRATION AND SERVICING OF CONTRACTS
Section 5.01. Responsibility for Contract Administration and Servicing.......66
Section 5.02. Standard of Care...............................................66
Section 5.03. Records........................................................66
Section 5.04. Inspection.....................................................66
Section 5.05. Establishment of and Deposits in Certificate Accounts..........67
Section 5.06. Payment of Taxes...............................................68
Section 5.07. Enforcement....................................................68
Section 5.08. Transfer of Certificate Accounts...............................69
Section 5.09. Maintenance of Hazard Insurance Policies.......................69
Section 5.10. Fidelity Bond and Errors and Omissions Insurance...............70
Section 5.11. Collections under Hazard Insurance Policies; Consent to
Transfers of Manufactured Homes; Assumption Agreements......71
Section 5.12. Realization upon Defaulted Contracts...........................71
Section 5.13. Costs and Expenses.............................................72
Section 5.14. Trustee to Cooperate...........................................72
Section 5.15. Servicing and Other Compensation...............................73
Section 5.16. Custody of Contracts...........................................73
Section 5.17. REMIC Compliance...............................................74
Section 5.18. Establishment of and Deposits in Distribution Accounts.........77
Article VI
PAYMENTS TO THE CERTIFICATEHOLDERS; WITHDRAWALS FROM CERTIFICATE ACCOUNTS
Section 6.01. Monthly Payments...............................................78
Section 6.02. Permitted Withdrawals from the Certificate Accounts............88
Section 6.03. [Reserved].....................................................89
Section 6.04. Monthly Advances by the Servicer...............................89
Section 6.05. Limited Guarantee..............................................90
Section 6.06. Alternate Credit Enhancement...................................91
Section 6.07. Calculation of the Remittance Rates with respect to
the Floating Rate Certificates..............................91
Article VII
REPORTS
Section 7.01. Monthly Reports................................................92
Section 7.02. Certificate of Servicing Officer...............................95
Section 7.03. Other Data.....................................................96
Section 7.04. Annual Statement as to Compliance..............................96
Section 7.05. Annual Independent Public Accountants' Servicing Report........96
Section 7.06. Statements to Certificateholders...............................96
Article VIII
INDEMNITIES; THE COMPANY AND THE SERVICER
Section 8.01. Liabilities to Obligors.......................................101
Section 8.02. Tax Indemnification...........................................101
Section 8.03. Servicer's Indemnities........................................101
Section 8.04. Operation of Indemnities......................................101
Section 8.05. Merger or Consolidation of the Company or the Servicer........102
Section 8.06. Limitation on Liability of the Servicer and Others............102
Section 8.07. Assignment by Servicer........................................102
Section 8.08. Successor to the Servicer.....................................103
Article IX
DEFAULT
Section 9.01. Events of Default.............................................105
Section 9.02. Waiver of Defaults............................................106
Section 9.03. Trustee to Act; Appointment of Successor......................106
Section 9.04. Notification to Certificateholders............................106
Section 9.05. Effect of Transfer............................................106
Section 9.06. Transfer of the Accounts......................................107
Article X
CONCERNING THE TRUSTEE
Section 10.01. Duties of Trustee............................................108
Section 10.02. Certain Matters Affecting the Trustee........................109
Section 10.03. Trustee Not Liable for Certificates or Contracts.............110
Section 10.04. Trustee May Own Certificates.................................110
Section 10.05. Servicer to Pay Fees and Expenses of Trustee.................110
Section 10.06. Eligibility Requirements for Trustee.........................111
Section 10.07. Resignation and Removal of the Trustee.......................111
Section 10.08. Successor Trustee............................................112
Section 10.09. Merger or Consolidation of Trustee...........................112
Section 10.10. Appointment of Co-Trustee or Separate Trustee................112
Section 10.11. Appointment of Office or Agency..............................114
Section 10.12. Trustee May Enforce Claims Without Possession
of Certificates ...........................................114
Section 10.13. Suits for Enforcement........................................114
Article XI
TERMINATION
Section 11.01. Termination..................................................115
Article XII
MISCELLANEOUS PROVISIONS
Section 12.01. Severability of Provisions...................................118
Section 12.02. Limitation on Rights of Certificateholders...................118
Section 12.03. Acts of Certificateholders...................................118
Section 12.04. Calculations.................................................119
Section 12.05. Amendment....................................................119
Section 12.06. Recordation of Agreement.....................................121
Section 12.07. Contribution of Assets.......................................121
Section 12.08. Duration of Agreement........................................121
Section 12.09. Governing Law................................................121
Section 12.10. Notices......................................................121
Section 12.11. Merger and Integration of Documents..........................122
Section 12.12. Headings.....................................................122
Section 12.13. Counterparts.................................................122
TESTIMONIUM
EXHIBIT A-1 - Contract Schedule
EXHIBIT A-2 - Form of Custodial Agreement
EXHIBIT B-1 - Form of Face of Class I A Certificate
EXHIBIT B-2 - Form of Face of Class II A Certificate
EXHIBIT B-3 - Form of Face of Class I M-1 Certificate
EXHIBIT C-1 - Form of Face of Class I B Certificate
EXHIBIT C-2 - Form of Face of Class II B Certificate
EXHIBIT D - Form of Face of Class R Certificate
EXHIBIT E - Form of Reverse of Certificates
EXHIBIT F - Form of Certificate Regarding
Substitution of Eligible Substitute Contracts
EXHIBIT G - Form of Certificate of Servicing
Officer Regarding Monthly Report
EXHIBIT H - Form of Transfer Affidavit
EXHIBIT I - Form of Investment Letter
EXHIBIT J - List of Sellers and Originators of Acquired Contracts
EXHIBIT K - Form of Power of Attorney
<PAGE>
AGREEMENT, dated as of October 26, 1999, among Vanderbilt Mortgage and
Finance, Inc., a corporation organized and existing under the laws of the State
of Tennessee, as Seller and Servicer (the "Company"), Clayton Homes, Inc., a
corporation organized and existing under the laws of the State of Delaware, as
provider of the Limited Guarantee ("CHI"), and The Bank of New York, a New York
banking corporation, not in its individual capacity but solely as Trustee (the
"Trustee").
WHEREAS, in the regular course of its business, the Company originates,
purchases and services manufactured housing installment sales contracts and
installment loan agreements and mortgage loans, which provide for installment
payments by or on behalf of the owner of the manufactured home and grant a
security interest in the related manufactured home (and in addition, in certain
cases, mortgages or deeds of trust on the real estate on which such manufactured
home is located);
WHEREAS, the Company and the Trustee wish to set forth the terms and
conditions pursuant to which the "Trust Fund," as hereinafter defined, will
acquire the "Contracts" as hereinafter defined, and the Company will manage and
service the Contracts;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the Company, CHI and the Trustee agree as
provided herein:
Article I
DEFINITIONS
Section 1.01. Definitions. Whenever used herein, unless the context
otherwise requires, the following words and phrases shall have the following
meanings:
ACCELERATED PRINCIPAL PAYMENT: As to any Remittance Date, an amount
equal to the lesser of (x) the amount, if any, by which (i) the Required
Overcollateralization Amount exceeds (ii) the actual Overcollateralization
Amount on such Remittance Date and (y) the sum of (i) the Group II Monthly
Excess Spread, if any, and (ii) any portion of the Group I Monthly Excess
Spread, if any, remaining after the distribution on such Remittance Date of the
amounts specified in clauses A(i) through (xi) or clauses B(i) through (xi), as
applicable, of Section 6.01(a).
ACQUIRED CONTRACTS: 731 Contracts having an aggregate principal balance
as of the Cut-off Date of approximately $33,907,326.46, which Vanderbilt
purchased from the sellers listed on Exhibit J, all of which Contracts were
originated by the Originators listed in Exhibit J hereto.
ACTUARIAL CONTRACT: Any Contract pursuant to which the portion of any
scheduled payment allocable to interest is calculated on the basis that each
monthly payment is applied on its Due Date, regardless of when it is actually
made.
AFFILIATE: As to any specified Person, any other Person controlling or
controlled by or under common control with such specified Person. For the
purposes of this definition, "controls," when used with respect to any specified
Person, means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" or "controlled" have meanings
correlative to the foregoing.
AGGREGATE NET FUNDS CAP CARRYOVER AMOUNT: As to any Remittance Date,
the sum of the Class II A-1 Net Funds Cap Carryover Amount, the Class II B-1 Net
Funds Cap Carryover Amount, the Class II B-2 Net Funds Cap Carryover Amount, the
Class II B-3 Net Funds Cap Carryover Amount and the Class II B-4 Net Funds Cap
Carryover Amount for such Remittance Date.
AGGREGATE NET LIQUIDATION LOSSES: With respect to the time of reference
thereto, the aggregate of the amounts by which (i) the outstanding principal
balance of each Contract that, during such time of reference, had become a
Liquidated Contract, plus accrued and unpaid interest thereon to the Due Date
for such Contract in the Due Period in which such Contract became a Liquidated
Contract, exceeds (ii) the Net Liquidation Proceeds for such Contract.
AGREEMENT: This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
AMORTIZATION SCHEDULE: With respect to any Contract, the amortization
schedule for such Contract at the time of reference thereto after adjustments
for previous Partial Prepayments but without giving effect to any adjustments by
reason of the bankruptcy of the Obligor or any similar proceeding or moratorium
or any waiver, extension or grace period.
ANNUAL PERCENTAGE RATE OR APR: As to any Contract and any time, the per
annum rate of interest then being borne by such Contract, as set forth on the
face thereof.
APPLICANTS: As defined in Section 4.06.
APPRAISED VALUE: With respect to any Manufactured Home, the value of
such Manufactured Home as determined by a professional appraiser or an employee
of the Servicer who, as part of such employment, regularly appraises
manufactured housing units.
AUTHENTICATING AGENT: An authenticating agent appointed pursuant to
Section 4.07.
AVAILABLE DISTRIBUTION AMOUNT: As to any Remittance Date, either the
Group I Available Distribution Amount or the Group II Available Distribution
Amount, as applicable, for such Remittance Date.
AVAILABLE FUNDS SHORTFALL: Either the Group I Available Funds Shortfall
or the Group II Available Funds Shortfall, as the case may be.
AVERAGE SIXTY-DAY DELINQUENCY RATIO: As to any Remittance Date and
Group, the arithmetic average of the Sixty-Day Delinquency Ratios for such
Remittance Date and the two preceding Remittance Dates. The "Sixty-Day
Delinquency Ratio" for a Remittance Date and each Group is the percentage
derived from the fraction, the numerator of which is the aggregate of the
outstanding principal balances (as of the end of the preceding Due Period) of
all Contracts in such Group (including Contracts in such Group in respect of
which the related Manufactured Home has been repossessed but not yet disposed
of) as to which a scheduled monthly payment thereon (without giving effect to
any adjustments thereto by reason of a bankruptcy or similar proceeding of the
Obligor or any extension or modification granted to such Obligor) is delinquent
60 days or more as of the end of the related Due Period and the denominator of
which is the Pool Scheduled Principal Balance for such Group for such Remittance
Date.
AVERAGE THIRTY-DAY DELINQUENCY RATIO: As to any Remittance Date and
Group, the arithmetic average of the Thirty-Day Delinquency Ratios for such
Remittance Date and the two preceding Remittance Dates. The "Thirty-Day
Delinquency Ratio" for a Remittance Date and each Group is the percentage
derived from the fraction, the numerator of which is the aggregate of the
outstanding principal balances (as of the end of the preceding Due Period) of
all Contracts in such Group (including Contracts in such Group in respect of
which the related Manufactured Home has been repossessed but not yet disposed
of) as to which a scheduled monthly payment thereon (without giving effect to
any adjustments thereto by reason of a bankruptcy or similar proceeding of the
Obligor or any extension or modification granted to such Obligor) is delinquent
30 days or more as of the end of the related Due Period and the denominator of
which is the Pool Scheduled Principal Balance for such Group for such Remittance
Date.
BI-WEEKLY CONTRACT: Any Contract pursuant to which the scheduled level
payment of interest and principal is due every 14 days.
BOOK-ENTRY CERTIFICATE: Any Group I or Group II 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: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking institutions in the State of New York are authorized or
obligated by law or executive order to be closed.
CALL OPTION DATE: The date on which the sum of the Group I Pool
Scheduled Principal Balance and the Group II Pool Scheduled Principal Balance
has declined to 10% or less of the Combined Total Original Contract Pool
Principal Balance.
CERTIFICATE: A Certificate for Manufactured Housing Contract
Pass-Through Certificates, Series 1999D, executed, countersigned and delivered
by the Trustee substantially in the form of Exhibits B-1, B-2, B-3, C-1, C-2 or
D and E.
CERTIFICATE ACCOUNT: Either the Group I Certificate Account or the
Group II Certificate Account, as the context requires.
CERTIFICATEHOLDER or HOLDER: The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purposes of
giving any consent, waiver, request or demand pursuant to this Agreement, any
Group I or Group II Certificate registered in the name of the Company, the
Servicer or any Person known to a Responsible Officer of the Trustee to be an
Affiliate of the Servicer and any Group I or Group II Certificate to the extent
that, to the knowledge of a Responsible Officer of the Trustee, the Servicer or
any Affiliate of the Servicer is the Certificate Owner shall be deemed not to be
outstanding and the Percentage Interest or Fractional Interest, as the case may
be, evidenced thereby shall not be taken into account in determining whether the
requisite amount of Percentage Interests or Fractional Interests necessary to
effect any such consent, waiver, request or demand has been obtained, unless, in
the case of the Senior Certificates, all such Certificates of both Groups are
held by such Persons or, in the case of the Subordinate Certificates, all such
Certificates of both Groups and all Senior Certificates of both Groups are held
by such Persons, or such Certificates have been fully paid.
CERTIFICATE GROUP: The Group comprising the Group I Certificates or the
Group II Certificates, as the context requires.
CERTIFICATE OWNER: With respect to a Group I or Group II Certificate,
the Person who is the beneficial owner of a Book-Entry Certificate.
CERTIFICATE REGISTER: The register maintained pursuant to Section 4.02.
CERTIFICATE REGISTRAR: The Trustee, or the agent appointed pursuant to
Section 4.02(a).
CLASS: Pertaining to Class I A-1 Certificates, Class I A-2
Certificates, Class I A-3 Certificates, Class I A-4 Certificates, Class I A-5
Certificates, Class I M-1 Certificates, Class I B-1 Certificates, Class I B-2
Certificates, Class II A-1 Certificates, Class II B-1 Certificates, Class II B-2
Certificates, Class II B-3 Certificates, Class II B-4 Certificates and/or the
Class R Certificate, as the case may be.
CLASS I A CERTIFICATE: Any one of the Class I A-1 Certificates, Class I
A-2 Certificates, Class I A-3 Certificates, Class I A-4 Certificates and/or
Class I A-5 Certificates.
CLASS I A DISTRIBUTION AMOUNT: As to any Remittance Date, the sum of
the Class I A-1 Distribution Amount, the Class I A-2 Distribution Amount, the
Class I A-3 Distribution Amount, the Class I A-4 Distribution Amount and the
Class I A-5 Distribution Amount.
CLASS I A PERCENTAGE: As to any Remittance Date, the percentage derived
from the fraction (which shall not be greater than 1) whose numerator is the
Class I A Principal Balance immediately prior to such Remittance Date and whose
denominator is the Group I Pool Scheduled Principal Balance immediately prior to
such Remittance Date.
CLASS I A PRINCIPAL BALANCE: As to any Remittance Date, the sum of the
Class I A-1, Class I A-2, Class I A-3, Class I A-4 and Class I A-5 Principal
Balances (before giving effect to distributions on the Certificates on such
Remittance Date).
CLASS I A-1 CERTIFICATE: Any one of the Certificates designated Class I
A-1, executed and countersigned as provided herein, substantially in the form
set forth in Exhibits B-1 and E hereto.
CLASS I A-1 DISTRIBUTION AMOUNT: As to any Remittance Date, the
aggregate amount distributed on the Class I A-1 Certificates on such Remittance
Date pursuant to Section 6.01.
CLASS I A-1 INTEREST FORMULA DISTRIBUTION AMOUNT: As to any Remittance
Date, an amount equal to the sum of (a) interest accrued during the related
Interest Period at the Class I A-1 Remittance Rate on the Class I A-1 Principal
Balance as of such Remittance Date (before giving effect to the distribution on
such Remittance Date) and (b) any Class I A-1 Unpaid Interest Shortfall.
CLASS I A-1 INTEREST SHORTFALL: As to any Remittance Date, any amount
by which the amount distributed on the Class I A-1 Certificates on such
Remittance Date is less than the amount computed pursuant to clause (a) of the
definition of "Class I A-1 Interest Formula Distribution Amount".
CLASS I A-1 PRINCIPAL BALANCE: At any time, the Original Class I A-1
Principal Balance minus the sum of all amounts previously distributed on the
Class I A-1 Certificates since the Closing Date pursuant to clauses A(ii)(a) and
B(ii)(a) of Section 6.01(a) and, in respect of principal on the Class I A-1
Certificates, pursuant to clauses C(xii) and D(xii) of Section 6.01(a).
CLASS I A-1 REMITTANCE RATE: With respect to the first Remittance Date,
5.8075% per annum, and, for any subsequent Remittance Date, the lesser of (a)
the sum of (i) LIBOR as of the second LIBOR Business Day prior to the first day
of the related Interest Period and (ii) .20% (twenty basis points) per annum and
(b) the Group I Weighted Average Net Contract Rate for such Remittance Date.
CLASS I A-1 UNPAID INTEREST SHORTFALL: As to any Remittance Date, the
amount, if any, by which the aggregate of the Class I A-1 Interest Shortfalls
for prior Remittance Dates exceeds the aggregate of the amounts distributed on
the Class I A-1 Certificates on prior Remittance Dates in respect of such
Interest Shortfalls, plus accrued interest (to the extent payment thereof is
legally permissible) at the Class I A-1 Remittance Rate on the amount thereof
from such prior Remittance Date to such current Remittance Date. For purposes of
determining whether amounts distributable pursuant to such clause (b) were
actually distributed on the Class I A-1 Certificates on any particular
Remittance Date, the distribution of interest on the Class I A-1 Certificates on
such Remittance Date shall be allocated first to the monthly interest
requirement calculated pursuant to clause (a) of the definition of "Class I A-1
Interest Formula Distribution Amount" and then to any Class I A-1 Unpaid
Interest Shortfall pursuant to such clause (b).
CLASS I A-2 CERTIFICATE: Any one of the Certificates designated Class I
A-2, executed and countersigned as provided herein, substantially in the form
set forth in Exhibits B-1 and E hereto.
CLASS I A-2 DISTRIBUTION AMOUNT: As to any Remittance Date, the
aggregate amount distributed on the Class I A-2 Certificates on such Remittance
Date pursuant to Section 6.01.
CLASS I A-2 INTEREST FORMULA DISTRIBUTION AMOUNT: As to any Remittance
Date, an amount equal to the sum of (a) interest accrued during the related
Interest Period at the Class I A-2 Remittance Rate on the Class I A-2 Principal
Balance as of such Remittance Date (before giving effect to the distribution on
such Remittance Date) and (b) any Class I A-2 Unpaid Interest Shortfall.
CLASS I A-2 INTEREST SHORTFALL: As to any Remittance Date, any amount
by which the amount distributed on the Class I A-2 Certificates on such
Remittance Date is less than the amount computed pursuant to clause (a) of the
definition of "Class I A-2 Interest Formula Distribution Amount".
CLASS I A-2 PRINCIPAL BALANCE: At any time, the Original Class I A-2
Principal Balance minus the sum of all amounts previously distributed on the
Class I A-2 Certificates since the Closing Date pursuant to clauses A(ii)(b) and
B(ii)(b) of Section 6.01(a) and, in respect of principal on the Class I A-2
Certificates, pursuant to clauses C(xii) and D(xii) of Section 6.01(a).
CLASS I A-2 REMITTANCE RATE: As to any Remittance Date, the lesser of
(i) 6.815% per annum and (ii) the Group I Weighted Average Net Contract Rate for
such Remittance Date.
CLASS I A-2 UNPAID INTEREST SHORTFALL: As to any Remittance Date, the
amount, if any, by which the aggregate of the Class I A-2 Interest Shortfalls
for prior Remittance Dates exceeds the aggregate of the amounts distributed on
the Class I A-2 Certificates on prior Remittance Dates in respect of such
Interest Shortfalls, plus accrued interest (to the extent payment thereof is
legally permissible) at the Class I A-2 Remittance Rate on the amount thereof
from such prior Remittance Date to such current Remittance Date. For purposes of
determining whether amounts distributable pursuant to such clause (b) were
actually distributed on the Class I A-2 Certificates on any particular
Remittance Date, the distribution of interest on the Class I A-2 Certificates on
such Remittance Date shall be allocated first to the monthly interest
requirement calculated pursuant to clause (a) of the definition of "Class I A-2
Interest Formula Distribution Amount" and then to any Class I A-2 Unpaid
Interest Shortfall pursuant to such clause (b).
CLASS I A-3 CERTIFICATE: Any one of the Certificates designated Class I
A-3, executed and countersigned as provided herein, substantially in the form
set forth in Exhibits B-1 and E hereto.
CLASS I A-3 DISTRIBUTION AMOUNT: As to any Remittance Date, the
aggregate amount distributed on the Class I A-3 Certificates on such Remittance
Date pursuant to Section 6.01.
CLASS I A-3 INTEREST FORMULA DISTRIBUTION AMOUNT: As to any Remittance
Date, an amount equal to the sum of (a) interest accrued during the related
Interest Period at the Class I A-3 Remittance Rate on the Class I A-3 Principal
Balance as of such Remittance Date (before giving effect to the distribution on
such Remittance Date) and (b) any Class I A-3 Unpaid Interest Shortfall.
CLASS I A-3 INTEREST SHORTFALL: As to any Remittance Date, any amount
by which the amount distributed on the Class I A-3 Certificates on such
Remittance Date is less than the amount computed pursuant to clause (a) of the
definition of "Class I A-3 Interest Formula Distribution Amount".
CLASS I A-3 PRINCIPAL BALANCE: At any time, the Original Class I A-3
Principal Balance minus the sum of all amounts previously distributed on the
Class I A-3 Certificates since the Closing Date pursuant to clauses A(ii)(c) and
B(ii)(c) of Section 6.01(a) and, in respect of principal on the Class I A-3
Certificates, pursuant to clauses C(xii) and D(xii) of Section 6.01(a).
CLASS I A-3 REMITTANCE RATE: As to any Remittance Date, the lesser of
(i) 7.060% per annum and (ii) the Group I Weighted Average Net Contract Rate for
such Remittance Date.
CLASS I A-3 UNPAID INTEREST SHORTFALL: As to any Remittance Date, the
amount, if any, by which the aggregate of the Class I A-3 Interest Shortfalls
for prior Remittance Dates exceeds the aggregate of the amounts distributed on
the Class I A-3 Certificates on prior Remittance Dates in respect of such
Interest Shortfalls, plus accrued interest (to the extent payment thereof is
legally permissible) at the Class I A-3 Remittance Rate on the amount thereof
from such prior Remittance Date to such current Remittance Date. For purposes of
determining whether amounts distributable pursuant to such clause (b) were
actually distributed on the Class I A-3 Certificates on any particular
Remittance Date, the distribution of interest on the Class I A-3 Certificates on
such Remittance Date shall be allocated first to the monthly interest
requirement calculated pursuant to clause (a) of the definition of "Class I A-3
Interest Formula Distribution Amount" and then to any Class I A-3 Unpaid
Interest Shortfall pursuant to such clause (b).
CLASS I A-4 CERTIFICATE: Any one of the Certificates designated Class I
A-4, executed and countersigned as provided herein, substantially in the form
set forth in Exhibits B-1 and E hereto.
CLASS I A-4 DISTRIBUTION AMOUNT: As to any Remittance Date, the
aggregate amount distributed on the Class I A-4 Certificates on such Remittance
Date pursuant to Section 6.01.
CLASS I A-4 INTEREST FORMULA DISTRIBUTION AMOUNT: As to any Remittance
Date, an amount equal to the sum of (a) interest accrued during the related
Interest Period at the Class I A-4 Remittance Rate on the Class I A-4 Principal
Balance as of such Remittance Date (before giving effect to the distribution on
such Remittance Date) and (b) any Class I A-4 Unpaid Interest Shortfall.
CLASS I A-4 INTEREST SHORTFALL: As to any Remittance Date, any amount
by which the amount distributed on the Class I A-4 Certificates on such
Remittance Date is less than the amount computed pursuant to clause (a) of the
definition of "Class I A-4 Interest Formula Distribution Amount".
CLASS I A-4 PRINCIPAL BALANCE: At any time, the Original Class I A-4
Principal Balance minus the sum of all amounts previously distributed on the
Class I A-4 Certificates since the Closing Date pursuant to clauses A(ii)(d) and
B(ii)(d) of Section 6.01(a) and, in respect of principal on the Class I A-4
Certificates, pursuant to clauses C(xii) and D(xii) of Section 6.01(a).
CLASS I A-4 REMITTANCE RATE: As to any Remittance Date, the lesser of
(i) 7.320% per annum and (ii) the Group I Weighted Average Net Contract Rate for
such Remittance Date.
CLASS I A-4 UNPAID INTEREST SHORTFALL: As to any Remittance Date, the
amount, if any, by which the aggregate of the Class I A-4 Interest Shortfalls
for prior Remittance Dates exceeds the aggregate of the amounts distributed on
the Class I A-4 Certificates on prior Remittance Dates in respect of such
Interest Shortfalls, plus accrued interest (to the extent payment thereof is
legally permissible) at the Class I A-4 Remittance Rate on the amount thereof
from such prior Remittance Date to such current Remittance Date. For purposes of
determining whether amounts distributable pursuant to such clause (b) were
actually distributed on the Class I A-4 Certificates on any particular
Remittance Date, the distribution of interest on the Class I A-4 Certificates on
such Remittance Date shall be allocated first to the monthly interest
requirement calculated pursuant to clause (a) of the definition of "Class I A-4
Interest Formula Distribution Amount" and then to any Class I A-4 Unpaid
Interest Shortfall pursuant to such clause (b).
CLASS I A-5 CERTIFICATE: Any one of the Certificates designated Class I
A-5, executed and countersigned as provided herein, substantially in the form
set forth in Exhibits B-1 and E hereto.
CLASS I A-5 DISTRIBUTION AMOUNT: As to any Remittance Date, the
aggregate amount distributed on the Class I A-5 Certificates on such Remittance
Date pursuant to Section 6.01.
CLASS I A-5 INTEREST FORMULA DISTRIBUTION AMOUNT: As to any Remittance
Date, an amount equal to the sum of (a) interest accrued during the related
Interest Period at the Class I A-5 Remittance Rate on the Class I A-5 Principal
Balance as of such Remittance Date (before giving effect to the distribution on
such Remittance Date) and (b) any Class I A-5 Unpaid Interest Shortfall.
CLASS I A-5 INTEREST SHORTFALL: As to any Remittance Date, any amount
by which the amount distributed on the Class I A-5 Certificates on such
Remittance Date is less than the amount computed pursuant to clause (a) of the
definition of "Class I A-5 Interest Formula Distribution Amount".
CLASS I A-5 PRINCIPAL BALANCE: At any time, the Original Class I A-5
Principal Balance minus the sum of all amounts previously distributed on the
Class I A-5 Certificates since the Closing Date pursuant to clauses A(ii)(e) and
B(ii)(e) of Section 6.01(a) and, in respect of principal on the Class I A-5
Certificates, pursuant to clauses C(xii) and D(xii) of Section 6.01(a).
CLASS I A-5 REMITTANCE RATE: As to any Remittance Date, the lesser of
(i) 7.755% per annum and (ii) the Group I Weighted Average Net Contract Rate for
such Remittance Date.
CLASS I A-5 UNPAID INTEREST SHORTFALL: As to any Remittance Date, the
amount, if any, by which the aggregate of the Class I A-5 Interest Shortfalls
for prior Remittance Dates exceeds the aggregate of the amounts distributed on
the Class I A-5 Certificates on prior Remittance Dates in respect of such
Interest Shortfalls, plus accrued interest (to the extent payment thereof is
legally permissible) at the Class I A-5 Remittance Rate on the amount thereof
from such prior Remittance Date to such current Remittance Date. For purposes of
determining whether amounts distributable pursuant to such clause (b) were
actually distributed on the Class I A-5 Certificates on any particular
Remittance Date, the distribution of interest on the Class I A-5 Certificates on
such Remittance Date shall be allocated first to the monthly interest
requirement calculated pursuant to clause (a) of the definition of "Class I A-5
Interest Formula Distribution Amount" and then to any Class I A-5 Unpaid
Interest Shortfall pursuant to such clause (b).
CLASS I B CERTIFICATE: Any one of the Class I B-1 Certificates and/or
Class I B-2 Certificates, as the case may be.
CLASS I B PERCENTAGE: As to any Remittance Date, 100% minus the Class I
A Percentage and Class I M-1 Percentage for such Remittance Date.
CLASS I B PRINCIPAL BALANCE: As to any Remittance Date, the sum of the
Class I B-1 and Class I B-2 Principal Balances (before giving effect to
distributions on the Certificates on such Remittance Date).
CLASS I B-1 CERTIFICATE: Any one of the Certificates designated Class I
B-1, executed and countersigned as provided herein, substantially in the form
set forth in Exhibits C-1 and E hereto.
CLASS I B-1 DISTRIBUTION AMOUNT: As to any Remittance Date, the
aggregate amount distributed on the Class I B-1 Certificates on such Remittance
Date pursuant to Section 6.01.
CLASS I B-1 INTEREST FORMULA DISTRIBUTION AMOUNT: As to any Remittance
Date, an amount equal to the sum of (a) interest accrued during the related
Interest Period at the Class I B-1 Remittance Rate on the Class I B-1 Principal
Balance as of such Remittance Date (before giving effect to the distribution on
such Remittance Date) and (b) any Class I B-1 Unpaid Interest Shortfall.
CLASS I B-1 INTEREST SHORTFALL: As to any Remittance Date, any amount
by which the amount distributed on the Class I B-1 Certificates on such
Remittance Date is less than the amount computed pursuant to clause (a) of the
definition of "Class I B-1 Interest Formula Distribution Amount".
CLASS I B-1 PRINCIPAL BALANCE: At any time, the Original Class I B-1
Principal Balance minus the sum of (i) all amounts previously distributed on the
Class I B-1 Certificates pursuant to clauses A(viii) and B(viii) of Section
6.01(a) and, in respect of principal on the Class I B-1 Certificates, pursuant
to clauses C(xii) and D(xii) of Section 6.01(a).
CLASS I B-1 REMITTANCE RATE: As to any Remittance Date, the lesser of
(i) 8.750% per annum and (ii) the Group I Weighted Average Net Contract Rate for
such Remittance Date.
CLASS I B-1 UNPAID INTEREST SHORTFALL: As to any Remittance Date, the
amount, if any, by which the aggregate of the Class I B-1 Interest Shortfalls
for prior Remittance Dates exceeds the aggregate of the amounts distributed on
the Class I B-1 Certificates on prior Remittance Dates in respect of such
Interest Shortfalls, plus accrued interest (to the extent payment thereof is
legally permissible) at the Class I B-1 Remittance Rate on the amount thereof
from such prior Remittance Date to such current Remittance Date. For purposes of
determining whether amounts distributable pursuant to such clause (b) were
actually distributed on the Class I B-1 Certificates on any particular
Remittance Date, the distribution of interest on the Class I B-1 Certificates on
such Remittance Date shall be allocated first to the monthly interest
requirement calculated pursuant to clause (a) of the definition of "Class I B-1
Interest Formula Distribution Amount" and then to any Class I B-1 Unpaid
Interest Shortfall pursuant to such clause (b).
CLASS I B-2 CERTIFICATE: Any one of the Certificates designated Class I
B-2, executed and countersigned as provided herein, substantially in the form
set forth in Exhibits C-1 and E hereto.
CLASS I B-2 DISTRIBUTION AMOUNT: As to any Remittance Date, the
aggregate amount distributed on the Class I B-2 Certificates on such Remittance
Date pursuant to Section 6.01 (excluding the amount of the Group I Guarantee
Payment, if any, with respect to such Remittance Date).
CLASS I B-2 FLOOR AMOUNT: As to any Remittance Date, $3,098,157.74.
CLASS I B-2 FORMULA DISTRIBUTION AMOUNT: As to any Remittance Date, an
amount equal to the sum of (a) the Class I B-2 Interest Formula Distribution
Amount for such Remittance Date and (b) the greater of (x) the Class I B-2
Principal Liquidation Loss Amount for such Remittance Date and (y) an amount
equal to the amount, if any, of principal that would be distributable on the
Class I B-2 Certificates on such Remittance Date pursuant to clauses (A)(x) or
(B)(x), as the case may be, of Section 6.01(a) hereof, assuming that the Group I
Available Distribution Amount for such Remittance Date remaining after
distribution of the amounts specified in (x) clauses A(i), A(iii), A(v), A(vii)
and A(ix) in the aggregate or (y) clauses B(i), B(iii), B(v), B(vii) and B(ix)
in the aggregate, as the case may be, of Section 6.01(a) hereof is at least
equal to the Group I Formula Principal Distribution Amount for such Remittance
Date.
CLASS I B-2 INTEREST FORMULA DISTRIBUTION AMOUNT: As to any Remittance
Date, an amount equal to the sum of (a) interest accrued during the related
Interest Period at the Class I B-2 Remittance Rate on the Class I B-2 Principal
Balance as of such Remittance Date (before giving effect to the distribution on
such Remittance Date) and (b) any Class I B-2 Unpaid Interest Shortfall.
CLASS I B-2 INTEREST SHORTFALL: As to any Remittance Date, any amount
by which the amount distributed on the Class I B-2 Certificates on such
Remittance Date is less than the amount computed pursuant to clause (a) of the
definition of "Class I B-2 Interest Formula Distribution Amount".
CLASS I B-2 PRINCIPAL BALANCE: At any time, the Original Class I B-2
Principal Balance minus the sum of (i) all amounts previously distributed on the
Class I B-2 Certificates pursuant to clauses A(x) and B(x) of Section 6.01(a)
and, in respect of principal on the Class I B-2 Certificates, pursuant to
clauses C(xii) and D(xii) of Section 6.01(a).
CLASS I B-2 PRINCIPAL LIQUIDATION LOSS AMOUNT: As to any Remittance
Date the amount, if any, by which the sum of the Class I A Principal Balance and
the Class I B Principal Balance for such Remittance Date exceeds the Group I
Pool Scheduled Principal Balance for such Remittance Date, in each case, after
giving effect to all distributions on the Certificates on account of principal
on such Remittance Date (exclusive of the related Guarantee Payment, if any).
CLASS I B-2 REMITTANCE RATE: As to any Remittance Date, the lesser of
(i) 8.750% per annum and (ii) the Group I Weighted Average Net Contract Rate for
such Remittance Date.
CLASS I B-2 UNPAID INTEREST SHORTFALL: As to any Remittance Date, the
amount, if any, by which the aggregate of the Class I B-2 Interest Shortfalls
for prior Remittance Dates exceeds the aggregate of the amounts distributed on
the Class I B-2 Certificates on prior Remittance Dates in respect of such
Interest Shortfalls, plus accrued interest (to the extent payment thereof is
legally permissible) at the Class I B-2 Remittance Rate on the amount thereof
from such prior Remittance Date to such current Remittance Date. For purposes of
determining whether amounts distributable pursuant to such clause (b) were
actually distributed on the Class I B-2 Certificates on any particular
Remittance Date, the distribution of interest on the Class I B-2 Certificates on
such Remittance Date shall be allocated first to the monthly interest
requirement calculated pursuant to clause (a) of the definition of "Class I B-2
Interest Formula Distribution Amount" and then to any Class I B-2 Unpaid
Interest Shortfall pursuant to such clause (b).
CLASS I M-1 AND CLASS I B PRINCIPAL DISTRIBUTION TEST: The Class I M-1
and Class I B Principal Distribution Test is met in respect of a Remittance Date
if the following conditions are satisfied:
(i) such Remittance Date is on or after the December 2004 Remittance
Date;
(ii) the Class I M-1 Percentage plus the Class I B Percentage for such
Remittance Date is equal to at least 25.38%;
(iii) the Average Sixty-Day Delinquency Ratio for the Group I Contracts
as of such Remittance Date does not exceed 5%;
(iv) the Average Thirty-Day Delinquency Ratio for the Group I Contracts
as of such Remittance Date does not exceed 7%;
(v) the Cumulative Realized Losses for the Group I Contracts do not
exceed (x) 7% of the Group I Total Original Contract Pool Principal
Balance, as of the December 2004 Remittance Date, (y) 8% of the Group I
Total Original Contract Pool Principal Balance as of the December 2005
Remittance Date, and (z) 9% of the Group I Total Original Contract Pool
Principal Balance as of the December 2006 Remittance Date and
thereafter;
(vi) the Current Realized Loss Ratio for the Group I Contracts as of
such Remittance Date does not exceed 2.75%; and
(vii) the Class I B-2 Principal Balance is not less than the Class I
B-2 Floor Amount.
CLASS I M-1 CERTIFICATE: Any one of the Certificates designated Class I
M-1, executed and countersigned as provided herein, substantially in the form
set forth in Exhibits B-3 and E hereto.
CLASS I M-1 DISTRIBUTION AMOUNT: As to any Remittance Date, the
aggregate amount distributed on the Class I M-1 Certificates on such Remittance
Date pursuant to Section 6.01.
CLASS I M-1 INTEREST FORMULA DISTRIBUTION AMOUNT: As to any Remittance
Date, an amount equal to the sum of (a) interest accrued during the related
Interest Period at the Class I M-1 Remittance Rate on the Class I M-1 Principal
Balance as of such Remittance Date (before giving effect to the distribution on
such Remittance Date) and (b) any Class I M-1 Unpaid Interest Shortfall.
CLASS I M-1 INTEREST SHORTFALL: As to any Remittance Date, any amount
by which the amount distributed on the Class I M-1 Certificates on such
Remittance Date is less than the amount computed pursuant to clause (a) of the
definition of "Class I M-1 Interest Formula Distribution Amount".
CLASS I M-1 PERCENTAGE: As to any Remittance Date, the percentage
derived from the fraction (which shall not be greater than 1) whose numerator is
the Class I M-1 Principal Balance immediately prior to such Remittance Date and
whose denominator is the Group I Pool Scheduled Principal Balance immediately
prior to such Remittance Date.
CLASS I M-1 PRINCIPAL BALANCE: At any time, the Original Class I M-1
Principal Balance minus the sum of all amounts previously distributed on the
Class I M-1 Certificates since the Closing Date pursuant to clauses A(vi) and
B(vi) of Section 6.01(a) and, in respect of principal on the Class I M-1
Certificates, pursuant to clauses C(xii) and D(xii) of Section 6.01(a).
CLASS I M-1 REMITTANCE RATE: As to any Remittance Date, the lesser of
(i) 8.050% per annum and (ii) the Group I Weighted Average Net Contract Rate for
such Remittance Date.
CLASS I M-1 UNPAID INTEREST SHORTFALL: As to any Remittance Date, the
amount, if any, by which the aggregate of the Class I M-1 Interest Shortfalls
for prior Remittance Dates exceeds the aggregate of the amounts distributed on
the Class I M-1 Certificates on prior Remittance Dates in respect of such
Interest Shortfalls, plus accrued interest (to the extent payment thereof is
legally permissible) at the Class I M-1 Remittance Rate on the amount thereof
from such prior Remittance Date to such current Remittance Date. For purposes of
determining whether amounts distributable pursuant to such clause (b) were
actually distributed on the Class I M-1 Certificates on any particular
Remittance Date, the distribution of interest on the Class I M-1 Certificates on
such Remittance Date shall be allocated first to the monthly interest
requirement calculated pursuant to clause (a) of the definition of "Class I M-1
Interest Formula Distribution Amount" and then to any Class I M-1 Unpaid
Interest Shortfall pursuant to such clause (b).
CLASS II A CERTIFICATE: Any one of the Class II A-1 Certificates.
CLASS II A DISTRIBUTION AMOUNT: As to any Remittance Date, the Class II
A-1 Distribution Amount.
CLASS II A PERCENTAGE: As to any Remittance Date, the percentage
derived from the fraction (which shall not be greater than 1) whose numerator is
the Class II A Principal Balance immediately prior to such Remittance Date and
whose denominator is the Group II Pool Scheduled Principal Balance immediately
prior to such Remittance Date; provided, however, that on any Remittance Date on
which (i) the Class II B Principal Distribution Test is met and (ii) the Class
II B Percentage is greater than 50%, the Class II A Percentage shall equal 0%
until distribution of principal to the Class II B Certificates on such
Remittance Date shall reduce the Class II B Percentage to a percentage equal to
50%.
CLASS II A PRINCIPAL BALANCE: As to any Remittance Date, the Class II
A-1 Principal Balance (before giving effect to distributions on the Certificates
on such Remittance Date).
CLASS II A-1 CERTIFICATE: Any one of the Certificates designated Class
II A-1, executed and countersigned as provided herein, substantially in the form
set forth in Exhibits B-2 and E hereto.
CLASS II A-1 DISTRIBUTION AMOUNT: As to any Remittance Date, the
aggregate amount distributed on the Class II A-1 Certificates on such Remittance
Date pursuant to Section 6.01.
CLASS II A-1 FORMULA RATE: As to any Remittance Date, a per annum rate
equal to the sum of (a) LIBOR for such Remittance Date and (b)(i) if such
Remittance Date occurs on or prior to the Call Option Date, .35% (thirty-five
basis points) per annum or (ii) if such Remittance Date occurs after the Call
Option Date, .70% (seventy basis points) per annum.
CLASS II A-1 INTEREST FORMULA DISTRIBUTION AMOUNT: As to any Remittance
Date, an amount equal to the sum of (a) interest accrued during the related
Interest Period at the Class II A-1 Remittance Rate on the Class II A-1
Principal Balance as of such Remittance Date (before giving effect to the
distribution on such Remittance Date) and (b) any Class II A-1 Unpaid Interest
Shortfall.
CLASS II A-1 INTEREST SHORTFALL: As to any Remittance Date, any amount
by which the amount distributed on the Class II A-1 Certificates on such
Remittance Date is less than the amount computed pursuant to clause (a) of the
definition of "Class II A-1 Interest Formula Distribution Amount".
CLASS II A-1 NET FUNDS CAP CARRYOVER AMOUNT: As to any Remittance Date,
the sum of (A) if the Remittance Rate for the Class II A-1 Certificates on such
Remittance Date is based upon the Net Funds Cap, the amount, if any, by which
(i) the lesser of (a) the product of (x) the Weighted Average Lifetime Cap for
such Remittance Date and (y) the Class II A-1 Principal Balance as of such
Remittance Date and (b) the amount of interest that would otherwise be
distributable on the Class II A-1 Certificates on such Remittance Date were such
Remittance Rate calculated at the Class II A-1 Formula Rate for such Remittance
Date exceeds (ii) the amount of interest payable on the Class II A-1
Certificates at the Net Funds Cap for such Remittance Date and (B) the Class II
A-1 Net Funds Cap Carryover Amounts, together with accrued interest thereon (at
the Class II A-1 Formula Rate for such Remittance Date) for all previous
Remittance Dates to the extent not previously paid pursuant to clause C(xiii) or
D(xiii) of Section 6.01(a).
CLASS II A-1 PRINCIPAL BALANCE: At any time, the Original Class II A-1
Principal Balance minus the sum of all amounts previously distributed on the
Class II A-1 Certificates since the Closing Date pursuant to clauses C(ii) and
D(ii) of Section 6.01(a) and, in respect of principal on the Class II A-1
Certificates, pursuant to clauses A(xi), B(xi), C(xi) and D(xi) of Section
6.01(a).
CLASS II A-1 REMITTANCE RATE: With respect to the first Remittance
Date, 5.9575% per annum, and, for any subsequent Remittance Date, the lesser of
(a) Class II A-1 Formula Rate for such Remittance Date and (b) the Net Funds Cap
for such Remittance Date.
CLASS II A-1 UNPAID INTEREST SHORTFALL: As to any Remittance Date, the
amount, if any, by which the aggregate of the Class II A-1 Interest Shortfalls
for prior Remittance Dates exceeds the aggregate of the amounts distributed on
the Class II A-1 Certificates on prior Remittance Dates in respect of such
Interest Shortfalls, plus accrued interest (to the extent payment thereof is
legally permissible) at the Class II A-1 Remittance Rate on the amount thereof
from such prior Remittance Date to such current Remittance Date. For purposes of
determining whether amounts distributable pursuant to such clause (b) were
actually distributed on the Class II A-1 Certificates on any particular
Remittance Date, the distribution of interest on the Class II A-1 Certificates
on such Remittance Date shall be allocated first to the monthly interest
requirement calculated pursuant to clause (a) of the definition of "Class II A-1
Interest Formula Distribution Amount" and then to any Class II A-1 Unpaid
Interest Shortfall pursuant to such clause (b).
CLASS II B CERTIFICATE: Any one of the Class II B-1 Certificates, Class
II B-2 Certificates, Class II B-3 Certificates and/or Class II B-4 Certificates,
as the case may be.
CLASS II B PERCENTAGE: As to any Remittance Date, 100% minus the Class
II A Percentage for such Remittance Date; provided, however, that on any
Remittance Date on which (i) the Class II B Principal Distribution Test is met
and (ii) the Class II B Percentage is greater than 50%, the Class II B
Percentage shall equal 100% until distribution of principal to the Class II B
Certificateholders on such Remittance Date shall increase the Class II A
Percentage to a percentage equal to 50%; provided, further, on the Remittance
Date on which there is a Group II Formula Principal Distribution Amount in
excess of the Required Class II B Payment, the Required Class II B Payment shall
be distributed to the Class II B Certificates and the remaining Group II Formula
Principal Distribution Amount shall be distributed pro rata to the Class II A
Certificates and the Class II B Certificates.
CLASS II B PRINCIPAL BALANCE: As to any Remittance Date, the sum of the
Class II B-1, Class II B-2, Class II B-3 and Class II B-4 Principal Balances
(before giving effect to distributions on the Certificates on such Remittance
Date).
CLASS II B PRINCIPAL DISTRIBUTION TEST: The Class II B Principal
Distribution Test is met in respect of a Remittance Date if the following
conditions are satisfied:
(i) such Remittance Date is on or after the December 2004 Remittance
Date;
(ii) the Class II B Percentage for such Remittance Date is equal to at
least 50%;
(iii) the Average Sixty-Day Delinquency Ratio for the Group II
Contracts as of such Remittance Date does not exceed 5%;
(iv) the Average Thirty-Day Delinquency Ratio for the Group II
Contracts as of such Remittance Date does not exceed 7%;
(v) the Cumulative Realized Losses for the Group II Contracts do not
exceed (x)7% of the Group II Total Original Contract Pool Principal
Balance, as of the December 2004 Remittance Date, (y) 8% of the Group
II Total Original Contract Pool Principal Balance as of the December
2005 Remittance Date, and (z) 9% of the Group II Total Original
Contract Pool Principal Balance as of the December 2006 Remittance Date
and thereafter;
(vi) the Current Realized Loss Ratio for the Group II Contracts as of
such Remittance Date does not exceed 2.75%; and
(vii) the sum of the Class II B-4 Principal Balance and the
Overcollateralization Amount is not less than the Group II Certificate
Floor Amount.
CLASS II B-1 CERTIFICATE: Any one of the Certificates designated Class
II B-1, executed and countersigned as provided herein, substantially in the form
set forth in Exhibits C-2 and E hereto.
CLASS II B-1 DISTRIBUTION AMOUNT: As to any Remittance Date, the
aggregate amount distributed on the Class II B-1 Certificates on such Remittance
Date pursuant to Section 6.01.
CLASS II B-1 FORMULA RATE: As to any Remittance Date, a per annum rate
equal to the sum of (a) LIBOR for such Remittance Date and (b)(i) if such
Remittance Date occurs on or prior to the Call Option Date, .68% (sixty-eight
basis points) per annum or (ii) if such Remittance Date occurs after the Call
Option Date, 1.18% (one hundred eighteen basis points) per annum.
CLASS II B-1 INTEREST FORMULA DISTRIBUTION AMOUNT: As to any Remittance
Date, an amount equal to the sum of (a) interest accrued during the related
Interest Period at the Class II B-1 Remittance Rate on the Class II B-1
Principal Balance as of such Remittance Date (before giving effect to the
distribution on such Remittance Date) and (b) any Class II B-1 Unpaid Interest
Shortfall.
CLASS II B-1 INTEREST SHORTFALL: As to any Remittance Date, any amount
by which the amount distributed on the Class II B-1 Certificates on such
Remittance Date is less than the amount computed pursuant to clause (a) of the
definition of "Class II B-1 Interest Formula Distribution Amount".
CLASS II B-1 NET FUNDS CAP CARRYOVER AMOUNT: As to any Remittance Date,
the sum of (A) if the Remittance Rate for the Class II B-1 Certificates on such
Remittance Date is based upon the Net Funds Cap, the amount, if any, by which
(i) the lesser of (a) the product of (x) the Weighted Average Lifetime Cap for
such Remittance Date and (y) the Class II B-1 Principal Balance as of such
Remittance Date and (b) the amount of interest that would otherwise be
distributable on the Class II B-1 Certificates on such Remittance Date were such
Remittance Rate calculated at the Class II B-1 Formula Rate for such Remittance
Date exceeds (ii) the amount of interest payable on the Class II B-1
Certificates at the Net Funds Cap for such Remittance Date and (B) the Class II
B-1 Net Funds Cap Carryover Amounts, together with accrued interest thereon (at
the Class II B-1 Formula Rate for such Remittance Date) for all previous
Remittance Dates to the extent not previously paid pursuant to clause C(xiii) or
D(xiii) of Section 6.01(a).
CLASS II B-1 PRINCIPAL BALANCE: At any time, the Original Class II B-1
Principal Balance minus the sum of all amounts previously distributed on the
Class II B-1 Certificates pursuant to clauses C(iv) and D(iv) of Section 6.01(a)
and, in respect of principal on the Class II B-1 Certificates, pursuant to
clauses A(xi), B(xi), C(xi) and D(xi) of Section 6.01(a).
CLASS II B-1 REMITTANCE RATE: With respect to the first Remittance
Date, 6.2875% per annum, and, for any subsequent Remittance Date, the lesser of
(a) Class II B-1 Formula Rate for such Remittance Date and (b) the Net Funds Cap
for such Remittance Date.
CLASS II B-1 UNPAID INTEREST SHORTFALL: As to any Remittance Date, the
amount, if any, by which the aggregate of the Class II B-1 Interest Shortfalls
for prior Remittance Dates exceeds the aggregate of the amounts distributed on
the Class II B-1 Certificates on prior Remittance Dates in respect of such
Interest Shortfalls, plus accrued interest (to the extent payment thereof is
legally permissible) at the Class II B-1 Remittance Rate on the amount thereof
from such prior Remittance Date to such current Remittance Date. For purposes of
determining whether amounts distributable pursuant to such clause (b) were
actually distributed on the Class II B-1 Certificates on any particular
Remittance Date, the distribution of interest on the Class II B-1 Certificates
on such Remittance Date shall be allocated first to the monthly interest
requirement calculated pursuant to clause (a) of the definition of "Class II B-1
Interest Formula Distribution Amount" and then to any Class II B-1 Unpaid
Interest Shortfall pursuant to such clause (b).
CLASS II B-2 CERTIFICATE: Any one of the Certificates designated Class
II B-2, executed and countersigned as provided herein, substantially in the form
set forth in Exhibits C-2 and E hereto.
CLASS II B-2 DISTRIBUTION AMOUNT: As to any Remittance Date, the
aggregate amount distributed on the Class II B-2 Certificates on such Remittance
Date pursuant to Section 6.01.
CLASS II B-2 FORMULA RATE: As to any Remittance Date, a per annum rate
equal to the sum of (a) LIBOR for such Remittance Date and (b)(i) if such
Remittance Date occurs on or prior to the Call Option Date, 1.35% (one hundred
thirty-five basis points) per annum or (ii) if such Remittance Date occurs after
the Call Option Date, 1.85% (one hundred eighty-five basis points) per annum.
CLASS II B-2 INTEREST FORMULA DISTRIBUTION AMOUNT: As to any Remittance
Date, an amount equal to the sum of (a) interest accrued during the related
Interest Period at the Class II B-2 Remittance Rate on the Class II B-2
Principal Balance as of such Remittance Date (before giving effect to the
distribution on such Remittance Date) and (b) any Class II B-2 Unpaid Interest
Shortfall.
CLASS II B-2 INTEREST SHORTFALL: As to any Remittance Date, any amount
by which the amount distributed on the Class II B-2 Certificates on such
Remittance Date is less than the amount computed pursuant to clause (a) of the
definition of "Class II B-2 Interest Formula Distribution Amount".
CLASS II B-2 NET FUNDS CAP CARRYOVER AMOUNT: As to any Remittance Date,
the sum of (A) if the Remittance Rate for the Class II B-2 Certificates on such
Remittance Date is based upon the Net Funds Cap, the amount, if any, by which
(i) the lesser of (a) the product of (x) the Weighted Average Lifetime Cap for
such Remittance Date and (y) the Class II B-2 Principal Balance as of such
Remittance Date and (b) the amount of interest that would otherwise be
distributable on the Class II B-2 Certificates on such Remittance Date were such
Remittance Rate calculated at the Class II B-2 Formula Rate for such Remittance
Date exceeds (ii) the amount of interest payable on the Class II B-2
Certificates at the Net Funds Cap for such Remittance Date and (B) the Class II
B-2 Net Funds Cap Carryover Amounts, together with accrued interest thereon (at
the Class II B-2 Formula Rate for such Remittance Date) for all previous
Remittance Dates to the extent not previously paid pursuant to clause C(xiii) or
D(xiii) of Section 6.01(a).
CLASS II B-2 PRINCIPAL BALANCE: At any time, the Original Class II B-2
Principal Balance minus the sum of all amounts previously distributed on the
Class II B-2 Certificates pursuant to clauses C(vi) and D(vi) of Section 6.01(a)
and, in respect of principal on the Class II B-2 Certificates, pursuant to
clauses A(xi), B(xi), C(xi) and D(xi) of Section 6.01(a).
CLASS II B-2 REMITTANCE RATE: With respect to the first Remittance
Date, 6.9575% per annum, and for any subsequent Remittance Date, the lesser of
(a) Class II B-2 Formula Rate for such Remittance Date and (b) the Net Funds Cap
for such Remittance Date.
CLASS II B-2 UNPAID INTEREST SHORTFALL: As to any Remittance Date, the
amount, if any, by which the aggregate of the Class II B-2 Interest Shortfalls
for prior Remittance Dates exceeds the aggregate of the amounts distributed on
the Class I B-2 Certificates on prior Remittance Dates in respect of such
Interest Shortfalls, plus accrued interest (to the extent payment thereof is
legally permissible) at the Class II B-2 Remittance Rate on the amount thereof
from such prior Remittance Date to such current Remittance Date. For purposes of
determining whether amounts distributable pursuant to such clause (b) were
actually distributed on the Class II B-2 Certificates on any particular
Remittance Date, the distribution of interest on the Class II B-2 Certificates
on such Remittance Date shall be allocated first to the monthly interest
requirement calculated pursuant to clause (a) of the definition of "Class II B-2
Interest Formula Distribution Amount" and then to any Class II B-2 Unpaid
Interest Shortfall pursuant to such clause (b).
CLASS II B-3 CERTIFICATE: Any one of the Certificates designated Class
II B-3, executed and countersigned as provided herein, substantially in the form
set forth in Exhibits C-2 and E hereto.
CLASS II B-3 DISTRIBUTION AMOUNT: As to any Remittance Date, the
aggregate amount distributed on the Class II B-3 Certificates on such Remittance
Date pursuant to Section 6.01.
CLASS II B-3 FORMULA RATE: As to any Remittance Date, a per annum rate
equal to the sum of (a) LIBOR for such Remittance Date and (b)(i) if such
Remittance Date occurs on or prior to the Call Option Date, 3.15% (three hundred
fifteen basis points) per annum or (ii) if such Remittance Date occurs after the
Call Option Date, 3.65% (three hundred sixty five basis points) per annum.
CLASS II B-3 INTEREST FORMULA DISTRIBUTION AMOUNT: As to any Remittance
Date, an amount equal to the sum of (a) interest accrued during the related
Interest Period at the Class II B-3 Remittance Rate on the Class II B-3
Principal Balance as of such Remittance Date (before giving effect to the
distribution on such Remittance Date) and (b) any Class II B-3 Unpaid Interest
Shortfall.
CLASS II B-3 INTEREST SHORTFALL: As to any Remittance Date, any amount
by which the amount distributed on the Class II B-3 Certificates on such
Remittance Date is less than the amount computed pursuant to clause (a) of the
definition of "Class II B-3 Interest Formula Distribution Amount".
CLASS II B-3 NET FUNDS CAP CARRYOVER AMOUNT: As to any Remittance Date,
the sum of (A) if the Remittance Rate for the Class II B-3 Certificates on such
Remittance Date is based upon the Net Funds Cap, the amount, if any, by which
(i) the lesser of (a) the product of (x) the Weighted Average Lifetime Cap for
such Remittance Date and (y) the Class II B-3 Principal Balance as of such
Remittance Date and (b) the amount of interest that would otherwise be
distributable on the Class II B-3 Certificates on such Remittance Date were such
Remittance Rate calculated at the Class II B-3 Formula Rate for such Remittance
Date exceeds (ii) the amount of interest payable on the Class II B-3
Certificates at the Net Funds Cap for such Remittance Date and (B) the Class II
B-3 Net Funds Cap Carryover Amounts, together with accrued interest thereon (at
the Class II B-3 Formula Rate for such Remittance Date) for all previous
Remittance Dates to the extent not previously paid pursuant to clause C(xiii) or
D(xiii) of Section 6.01(a).
CLASS II B-3 PRINCIPAL BALANCE: At any time, the Original Class II B-3
Principal Balance minus the sum of all amounts previously distributed on the
Class II B-3 Certificates pursuant to clauses C(viii) and D(viii) of Section
6.01(a) and, in respect of principal on the Class II B-3 Certificates, pursuant
to clauses A(xi), B(xi), C(xi) and D(xi) of Section 6.01(a).
CLASS II B-3 REMITTANCE RATE: With respect to the first Remittance
Date, 8.7575% per annum, and for any subsequent Remittance Date, the lesser of
(a) Class II B-3 Formula Rate for such Remittance Date and (b) the Net Funds Cap
for such Remittance Date.
CLASS II B-3 UNPAID INTEREST SHORTFALL: As to any Remittance Date, the
amount, if any, by which the aggregate of the Class II B-3 Interest Shortfalls
for prior Remittance Dates exceeds the aggregate of the amounts distributed on
the Class I B-3 Certificates on prior Remittance Dates in respect of such
Interest Shortfalls, plus accrued interest (to the extent payment thereof is
legally permissible) at the Class II B-3 Remittance Rate on the amount thereof
from such prior Remittance Date to such current Remittance Date. For purposes of
determining whether amounts distributable pursuant to such clause (b) were
actually distributed on the Class II B-3 Certificates on any particular
Remittance Date, the distribution of interest on the Class II B-3 Certificates
on such Remittance Date shall be allocated first to the monthly interest
requirement calculated pursuant to clause (a) of the definition of "Class II B-3
Interest Formula Distribution Amount" and then to any Class II B-3 Unpaid
Interest Shortfall pursuant to such clause (b).
CLASS II B-4 CERTIFICATE: Any one of the Certificates designated Class
II B-4, executed and countersigned as provided herein, substantially in the form
set forth in Exhibits C-2 and E hereto.
CLASS II B-4 DISTRIBUTION AMOUNT: As to any Remittance Date, the
aggregate amount distributed on the Class II B-4 Certificates on such Remittance
Date pursuant to Section 6.01 (excluding the amount of the Group II Guarantee
Payment, if any, with respect to such Remittance Date).
CLASS II B-4 FORMULA DISTRIBUTION AMOUNT: As to any Remittance Date, an
amount equal to the sum of (a) the Class II B-4 Interest Formula Distribution
Amount for such Remittance Date and (b) the greater of (x) the Class II B-4
Principal Liquidation Loss Amount for such Remittance Date and (y) an amount
equal to the amount, if any, of principal that would be distributable on the
Class II B-4 Certificates on such Remittance Date pursuant to clauses (C)(x) or
(D)(x), as the case may be, of Section 6.01(a) hereof, assuming that the Group
II Available Distribution Amount for such Remittance Date remaining after
distribution of the amounts specified in (x) clauses C(i), C(iii), C(v), C(vii)
and C(ix) in the aggregate or (y) clauses D(i), D(iii), D(v), D(vii) and D(ix)
in the aggregate, as the case may be, of Section 6.01(a) hereof is at least
equal to the Group II Formula Principal Distribution Amount for such Remittance
Date.
CLASS II B-4 FORMULA RATE: As to any Remittance Date, a per annum rate
equal to the sum of (a) LIBOR for such Remittance Date and (b)(i) if such
Remittance Date occurs on or prior to the Call Option Date, 3.25% (three hundred
twenty five basis points) per annum or (ii) if such Remittance Date occurs after
the Call Option Date, 3.75% (three hundred seventy five basis points) per annum.
CLASS II B-4 INTEREST FORMULA DISTRIBUTION AMOUNT: As to any Remittance
Date, an amount equal to the sum of (a) interest accrued during the related
Interest Period at the Class II B-4 Remittance Rate on the Class II B-4
Principal Balance as of such Remittance Date (before giving effect to the
distribution on such Remittance Date) and (b) any Class II B-4 Unpaid Interest
Shortfall.
CLASS II B-4 INTEREST SHORTFALL: As to any Remittance Date, any amount
by which the amount distributed on the Class II B-4 Certificates on such
Remittance Date is less than the amount computed pursuant to clause (a) of the
definition of "Class II B-4 Interest Formula Distribution Amount".
CLASS II B-4 NET FUNDS CAP CARRYOVER AMOUNT: As to any Remittance Date,
the sum of (A) if the Remittance Rate for the Class II B-4 Certificates on such
Remittance Date is based upon the Net Funds Cap, the amount, if any, by which
(i) the lesser of (a) the product of (x) the Weighted Average Lifetime Cap for
such Remittance Date and (y) the Class II B-4 Principal Balance as of such
Remittance Date and (b) the amount of interest that would otherwise be
distributable on the Class II B-4 Certificates on such Remittance Date were such
Remittance Rate calculated at the Class II B-4 Formula Rate for such Remittance
Date exceeds (ii) the amount of interest payable on the Class II B-4
Certificates at the Net Funds Cap for such Remittance Date and (B) the Class II
B-4 Net Funds Cap Carryover Amounts, together with accrued interest thereon (at
the Class II B-4 Formula Rate for such Remittance Date) for all previous
Remittance Dates to the extent not previously paid pursuant to clause C(xiii) or
D(xiii) of Section 6.01(a).
CLASS II B-4 PRINCIPAL BALANCE: At any time, the Original Class II B-4
Principal Balance minus the sum of all amounts previously distributed on the
Class II B-4 Certificates pursuant to clauses C(x) and D(x) of Section 6.01(a)
and, in respect of principal on the Class II B-4 Certificates, pursuant to
clauses A(xi), B(xi), C(xi) and D(xi) of Section 6.01(a).
CLASS II B-4 PRINCIPAL LIQUIDATION LOSS AMOUNT: As to any Remittance
Date the amount, if any, by which the sum of the Class II A Principal Balance
and the Class II B Principal Balance for such Remittance Date exceeds the Group
II Pool Scheduled Principal Balance for such Remittance Date, in each case,
after giving effect to all distributions on the Certificates on account of
principal on such Remittance Date (exclusive of the related Guarantee Payment,
if any).
CLASS II B-4 REMITTANCE RATE: With respect to the first Remittance
Date, 8.8575% per annum, and for any subsequent Remittance Date, the lesser of
(a) Class II B-4 Formula Rate for such Remittance Date and (b) the Net Funds Cap
for such Remittance Date.
CLASS II B-4 UNPAID INTEREST SHORTFALL: As to any Remittance Date, the
amount, if any, by which the aggregate of the Class II B-4 Interest Shortfalls
for prior Remittance Dates exceeds the aggregate of the amounts distributed on
the Class II B-4 Certificates on prior Remittance Dates in respect of such
Interest Shortfalls, plus accrued interest (to the extent payment thereof is
legally permissible) at the Class II B-4 Remittance Rate on the amount thereof
from such prior Remittance Date to such current Remittance Date. For purposes of
determining whether amounts distributable pursuant to such clause (b) were
actually distributed on the Class II B-4 Certificates on any particular
Remittance Date, the distribution of interest on the Class II B-4 Certificates
on such Remittance Date shall be allocated first to the monthly interest
requirement calculated pursuant to clause (a) of the definition of "Class II B-4
Interest Formula Distribution Amount" and then to any Class II B-4 Unpaid
Interest Shortfall pursuant to such clause (b).
CLASS R CERTIFICATE: The Certificate executed and countersigned as
provided herein, substantially in the form set forth in Exhibits D and E hereto.
CLASS R DISTRIBUTION AMOUNT: As to any Remittance Date, the aggregate
amount distributed on the Class R Certificate pursuant to Section 6.01.
CLOSING DATE: November 30, 1999.
CODE: The Internal Revenue Code of 1986, as amended.
COMBINED TOTAL ORIGINAL CONTRACT POOL PRINCIPAL BALANCE: The sum of the
Group I Total Original Contract Pool Principal Balance and the Group II Total
Original Contract Pool Principal Balance.
COMPANY: Vanderbilt Mortgage and Finance, Inc., a Tennessee
corporation, or its successor in interest or any successor under this Agreement
appointed as herein provided.
COMPUTER TAPE: The computer tape generated by the Company which
provides information relating to the Contracts, and includes the master file and
the history file.
CONTRACT FILE: As to each Contract, other than a Land-and-Home Contract
or a Mortgage Loan, (a) the original of the Contract (except for fewer than 15
Contracts, in which case the related Contract File shall contain a photocopy of
the original Contract together with a certificate from the Obligor under such
Contract certifying that such photocopy is a true copy of the original
Contract), and, in the case of each Bi-weekly Contract, the original of the
bi-weekly rider for such Contract, and, in the case of each Escalating Principal
Payment Contract, the original of the graduated payment rider for such Contract;
(b) the original title document for the related Manufactured Home of the type
issued to lienholders, unless the laws of the jurisdiction in which the related
Manufactured Home is located do not provide for the issuance of such title
documents for such Manufactured Home; (c) evidence of one or more of the
following types of perfection of the security interest in the related
Manufactured Home granted by such Contract, as appropriate: (1) notation of such
security interest on the title document, (2) a financing statement meeting the
requirements of the UCC, with evidence of recording in the appropriate offices
indicated thereon, or (3) such other evidence of perfection of a security
interest in a manufactured housing unit as is customary in such jurisdiction;
(d) the assignment of the Contract (which may be in a blanket form that also
covers other Contracts or contracts) from the Originator to the Company; and (e)
any extension, modification or waiver agreement(s). In addition, as to each Land
Secured Contract, the related Mortgage with evidence of recording thereon.
CONTRACT POOL: The pool of Contracts held in the Trust Fund with
respect to each Group.
CONTRACT RATE ADJUSTMENT DATE: As to each Group II Contract, a date on
which the related APR may adjust, as provided in such Contract.
CONTRACT SCHEDULE: The list (as such list may be amended from time to
time) identifying each Contract constituting part of the corpus of the Trust
Fund as of the Cut-off Date, and which (a) identifies each Contract by Group,
contract number and name and address of the Obligor and (b) sets forth as to
each Contract (i) the unpaid principal balance as of the related Transfer Date
determined by giving effect to payments received prior to the related Transfer
Date, (ii) the amount of each scheduled payment due from the Obligor, and (iii)
the APR.
CONTRACTS: The manufactured housing installment sale contracts and
installment loan agreements, including any Land-and-Home Contracts and any
Mortgage Loans, described in the Contract Schedule and constituting part of the
corpus of the Trust Fund, which Contracts are to be sold and assigned by the
Company to the Trustee and which are the subject of this Agreement. The
Contracts include, without limitation, all related security interests and any
and all rights to receive payments which are due pursuant thereto from and after
the Cut-off Date, but exclude any rights to receive payments which are due
pursuant thereto prior to the Cut-off Date.
CORPORATE TRUST OFFICE: The principal office of the Trustee at which at
any particular time its corporate business in connection with this Agreement
shall be administered, which office at the date of execution of this Agreement
is located at 101 Barclay Street, Floor 12E, New York, NY 10286.
CUSTODIAL AGREEMENT: As defined in Section 2.04(a).
CUT-OFF DATE: October 26, 1999.
DEFICIENCY EVENT: The Remittance Date, if any, on which the Group I
Pool Scheduled Principal Balance becomes equal to or less than the sum of the
Class I A-1 Principal Balance, the Class I A-2 Principal Balance, the Class I
A-3 Principal Balance and the Class I A-4 Principal Balance.
DEFINITIVE CERTIFICATES: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 4.02(f).
DEPOSITORY: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & CO., as the registered Holder of (i) one
Class I A-1 Certificate evidencing $43,000,000 in initial aggregate principal
balance of the Class I A-1 Certificates, (ii) one Class I A-2 Certificate
evidencing $31,000,000 in initial aggregate principal balance of the Class I A-2
Certificates, (iii) one Class I A-3 Certificate evidencing $26,000,000 in
initial aggregate principal balance of the Class I A-3 Certificates, (iv) one
Class I A-4 Certificate evidencing $25,483,000 in initial aggregate principal
balance of the Class I A-4 Certificates, (v) one Class I A-5 Certificate
evidencing $6,972,000 in initial aggregate principal balance of the Class I A-5
Certificates, (vi) one Class I M-1 Certificate evidencing $6,197,000 in initial
aggregate principal balance of the Class I M-1 Certificates, (vii) one Class I
B-1 Certificate evidencing $6,197,000 in initial aggregate principal balance of
the Class I B-1 Certificates, (viii) one Class II A-1 Certificate evidencing
$100,522,000 initial aggregate principal balance of the Class II A-1
Certificates, (ix) one Class II B-1 Certificate evidencing $13,227,000 in
initial aggregate principal balance of the Class II B-1 Certificates, (x) one
Class II B-2 Certificate evidencing $3,969,000 in initial aggregate principal
balance of the Class II B-2 Certificates and (xi) one Class II B-3 Certificate
evidencing $5,291,000 in initial aggregate principal balance of the Class II B-3
Certificates. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York.
DEPOSITORY PARTICIPANT: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
DETERMINATION DATE: The fifth Business Day prior to each Remittance
Date.
DISTRIBUTION ACCOUNT: The custodial account or accounts created and
maintained with respect to each Certificate Group pursuant to Section 5.18.
DUE DATE: The day of the month (or in the case of a Bi-weekly Contract
or Semi-Monthly Contract, each day in the month) on which each scheduled payment
of principal and interest is due on a Contract, exclusive of any days of grace.
DUE PERIOD: With respect to the first Remittance Date, the period
commencing on October 26, 1999 and ending on November 25, 1999. With respect to
any Remittance Date after the first Remittance Date, the period commencing on
the 26th day of the second month preceding the month of such Remittance Date and
ending on the 25th day of the month preceding the month of such Remittance Date.
ELECTRONIC LEDGER: The electronic master record of the Company's
manufactured housing installment sales contracts and installment loan agreements
clearly identifying each Contract that is part of the corpus of the Trust Fund.
ELIGIBLE ACCOUNT: An account that is either (i) maintained with a
depository institution the commercial paper or short-term unsecured debt
obligations of which is rated "P-1" by Moody's and "F1+" by Fitch, (ii) a trust
account maintained with the Trustee in its corporate trust department or (iii)
otherwise acceptable to the Rating Agencies, as evidenced by a letter from the
Rating Agencies, without a reduction or withdrawal of the rating of the
Certificates.
ELIGIBLE INVESTMENTS: One or more of the following:
(a) direct obligations of, or guaranteed as to the full and timely
payment of principal and interest by, the United States or any agency
or instrumentality thereof when such obligations are backed by the full
faith and credit of the United States;
(b) repurchase agreements on obligations specified in clause (a)
maturing not more than one month from the date of acquisition thereof,
provided that the long-term unsecured obligations of the party agreeing
to repurchase such obligations are at the time rated by each Rating
Agency in the two highest rating category available from such Rating
Agency; and provided further that the short-term debt obligations of
the party agreeing to repurchase shall be at the time rated "P-1+" by
Moody's and "F1+" by Fitch;
(c) federal funds, certificates of deposit, time deposits, demand
deposits and bankers' acceptances, each of which shall not have an
original maturity of more than 90 days, of any depository institution
or trust company incorporated under the laws of the United States or
any state; provided that the short-term obligations of such depository
institution or trust company shall be at the time rated "P-1+" by
Moody's and "F1+" by Fitch;
(d) commercial paper (having original maturities of not more than 270
days) of any corporation incorporated under the laws of the United
States or any state thereof; provided that such commercial paper shall
be at the time rated "P-1+" by Moody's and "F1+" by Fitch;
(e) any money market fund rated "P-1+" by Moody's and "AAA" by Fitch;
and
(f) other obligations or securities that are acceptable to the Rating
Agencies as an Eligible Investment hereunder and will not result in a
reduction in or withdrawal of the then current rating or ratings of the
Certificates, as evidenced by a letter to such effect from the Rating
Agencies;
provided, however, that no instrument shall be an Eligible Investment
if such instrument evidences a right to receive only interest payments with
respect to the obligations underlying such instrument.
ELIGIBLE SUBSTITUTE CONTRACT: As to any Replaced Contract for which
such Eligible Substitute Contract is being substituted pursuant to Section
3.05(b), a Contract that (a) as of the date of its substitution, satisfies all
of the representations and warranties (which, except when expressly stated to be
as of origination, shall be deemed to be determined as of the date of its
substitution rather than as of the Cut-off Date or the Closing Date) in Section
3.02 and does not cause any of the representations and warranties in Section
3.03, after giving effect to such substitution, to be incorrect, (b) after
giving effect to the scheduled payment or payments due in the month of such
substitution, has a Scheduled Principal Balance that is not greater than the
Scheduled Principal Balance of such Replaced Contract, (c) has an APR that is at
least equal to the APR of such Replaced Contract, (d) has a remaining term to
scheduled maturity that is not greater than the remaining term to scheduled
maturity of the Replaced Contract, (e) has not been delinquent for more than 31
days as to any scheduled payment due within twelve months of the date of its
substitution, (f) if the Replaced Contract is secured by a Manufactured Home
which was new at the time of origination, it shall be replaced by a new Eligible
Substitute Contract, (g) if the Replaced Contract is secured by a Manufactured
Home which is a double-wide, the Eligible Substitute Contract shall be a
double-wide, (h) if the Replaced Contract is a Group I Contract, has a fixed
APR, and (i) if the Replaced Contract is a Group II Contract, (1) has a Lifetime
Cap no lower than (and not more than two percentage points higher than) the
Lifetime Cap of the Replaced Contract and a Minimum APR no lower than (and not
more than one percentage point higher than) the Minimum APR of the Replaced
Contract, (2) has the same index and Periodic Cap as that of the Replaced
Contract and a Gross Margin not less than that of the Replaced Contract and, if
Group II Contracts having an aggregate outstanding principal balance equaling 1%
or more of the aggregate principal balance of the Group II Contracts as of the
Cut-off Date have become Replaced Contracts, not more than two percentage points
higher than that of the Replaced Contract, (3) has Contract Rate Adjustment
Dates that are no less frequent than the Contract Rate Adjustment Dates of the
Replaced Contract and (4) will not permit conversion of the related adjustable
APR to a fixed APR. Notwithstanding the foregoing, in the event that on any date
more than one Eligible Substitute Contract is substituted for one or more
Replaced Contracts, the requirement set forth in clause (b) above with respect
to Scheduled Principal Balance may be satisfied if the aggregate of the
Scheduled Principal Balances of such Eligible Substitute Contracts is not
greater than the aggregate of the Scheduled Principal Balances of such Replaced
Contracts; the requirement set forth in clause (c) above with respect to APR may
be satisfied if the weighted average APR of such Eligible Substitute Contracts
is at least equal to the weighted average APR of such Replaced Contracts
(provided that the APR of each Eligible Substitute Contract to be substituted
for a Group I Contract shall be equal to or greater than the Group I Weighted
Average Net Contract Rate); the requirement set forth in clause (d) above with
respect to remaining term to scheduled maturity may be satisfied if the weighted
average remaining term to scheduled maturity of such Eligible Substitute
Contracts is not greater than the weighted average remaining term to scheduled
maturity of such Replaced Contracts; provided that no Eligible Substitute
Contract shall have a scheduled maturity date later than December 15, 2029.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA RESTRICTED CERTIFICATE: The Class I A-5, Class I-M-1, Class I
B-1, Class I B-2, Class II B-1, Class II B-2, Class II B-3 and Class II B-4
Certificates.
ESCALATING PRINCIPAL PAYMENT CONTRACT: Contracts which provide for an
annual increase in monthly payments over the first five years of the term of the
Contract, and at year six, the Contract is fully amortized for the remainder of
the term of the Contract, based on the balance of the Contract at year six,
providing for level payments for the remainder of the term of the Contract.
EVENT OF DEFAULT: Any one of the events described in Section 9.01
hereof.
EXCESS OVERCOLLATERALIZATION AMOUNT: As to any Remittance Date, the
amount, if any, by which (x) the actual Overcollateralization Amount on such
Remittance Date (after taking into account all other distributions on such
Remittance Date pursuant to Section 6.01(a)) exceeds (y) the Required
Overcollateralization Amount for such Remittance Date.
EXTENSION FEE: Any extension fee paid by the Obligor on a Contract.
FIDELITY BOND: A fidelity bond to be maintained by the Servicer
pursuant to Section 5.10.
FILE: A Contract File, Land-and-Home Contract File or a Mortgage Loan
File.
FIRST REMITTANCE DATE: December 7, 1999.
FITCH: Fitch IBCA, Inc. or its successor in interest.
FIXED RATE CERTIFICATES: The Class I A-2, Class I A-3, Class I A-4,
Class I A-5, Class I M-1, Class I B-1 and Class I B-2 Certificates.
FLOATING RATE CERTIFICATES: The Class I A-1 and Group II Certificates.
FORMULA PRINCIPAL DISTRIBUTION AMOUNT: As to any Remittance Date and
each Group, an amount equal to the sum of (a) all scheduled payments of
principal due on each Outstanding Contract in such Group during the Due Period
immediately preceding the month in which such Remittance Date occurs, (b) all
Partial Prepayments received with respect to Contracts in such Group during such
Due Period, (c) the Scheduled Principal Balance of each Contract in such Group
for which a Principal Prepayment in Full was received during such Due Period,
(d) the Scheduled Principal Balance of each Contract in such Group that became a
Liquidated Contract during such Due Period, (e) the Scheduled Principal Balance
of each Contract in such Group that was purchased during such Due Period
pursuant to Section 3.05 and (f) any previously undistributed shortfalls in the
distribution of the amounts in clauses (a) through (e) in respect of such Group
in respect of prior Remittance Dates (other than any such shortfall with respect
to which a Guarantee Payment has been made to the Class I B-2 Certificateholders
(in the case of the Group I Certificates) or the Class II B-4 Certificateholders
(in the case of the Group II Certificates)).
FRACTIONAL INTEREST: As to any Certificate of any Class, the product of
(a) the Percentage Interest evidenced by such Certificate multiplied by (b) the
amount derived from dividing the Principal Balance of such Class by the sum of
the Class I A Principal Balance, Class I M-1 Principal Balance, Class I B
Principal Balance, the Class II A Principal Balance and the Class II B Principal
Balance.
GROSS MARGIN: With respect to each Group II Contract, the percentage
set forth in the related Contract to be added to the related index for use in
determining such Contract's APR on each date of adjustment thereof.
GROUP: Either Group I or Group II, as the context requires.
GROUP I: With respect to the Contracts, the Group I Contracts, and with
respect to the Certificates, the Group I Certificates. When the words "Group I"
immediately precede another defined term herein, the application of such term
will be limited to the Group I Contracts and/or the Group I Certificates.
GROUP I AVAILABLE DISTRIBUTION AMOUNT: As to any Remittance Date, (a)
the sum of (i) the amount on deposit in the Group I Certificate Account as of
the end of the Due Period ending immediately prior to such Remittance Date, and
(ii) the Monthly Advance with respect to Group I made in respect of such
Remittance Date REDUCED BY (b) the sum of (i) scheduled payments of principal
and interest for Group I Contracts due after such Due Period and (ii) amounts
permitted to be withdrawn by the Servicer from the Group I Certificate Account
pursuant to clauses (i) through (v), inclusive, and (vii) of Section 6.02.
GROUP I AVAILABLE FUNDS SHORTFALL: As to any Remittance Date, the
amount, if any, by which the Group I Available Distribution Amount is less than
the amount required to be distributed on the Group I Certificates on such
Remittance Date pursuant to clauses A(i) through (x) or clauses B(i) through
(x), as applicable, of Section 6.01(a).
GROUP I CERTIFICATE: Any one of the Class I A-1 Certificates, Class I
A-2 Certificates, Class I A-3 Certificates, Class I A-4 Certificates, Class I
A-5 Certificates, Class I M-1 Certificates, Class I B-1 Certificates or Class I
B-2 Certificates.
GROUP I CERTIFICATE ACCOUNT: The custodial account or accounts created
and maintained pursuant to Section 5.05 with respect to the Group I Contracts.
GROUP I CONTRACT: Each Contract sold to the Trust which bears interest
at a fixed rate.
GROUP I CUMULATIVE REALIZED LOSSES: As to any Remittance Date, the
Aggregate Net Liquidation Losses for Group I Contracts for the period from the
Cut-off Date through the end of the related Due Period.
GROUP I CURRENT REALIZED LOSS RATIO: As to any Remittance Date, the
annualized percentage derived from the fraction, the numerator of which is the
sum of the Aggregate Net Liquidation Losses for Group I Contracts for the three
preceding Due Periods and the denominator of which is the arithmetic average of
the Group I Pool Scheduled Principal Balances for such Remittance Date and the
preceding two Remittance Dates.
GROUP I INTEREST FORMULA DISTRIBUTION AMOUNT: As to any Remittance
Date, an amount equal to the sum of the Class I A-1 Interest Formula
Distribution Amount, Class I A-2 Interest Formula Distribution Amount, Class I
A-3 Interest Formula Distribution Amount, Class I A-4 Interest Formula
Distribution Amount, Class I A-5 Interest Formula Distribution Amount, Class I
M-1 Interest Formula Distribution Amount, Class I B-1 Interest Formula
Distribution Amount and Class I B-2 Interest Formula Distribution Amount.
GROUP I MONTHLY SERVICING FEE: With respect to any Remittance Date, an
amount equal to one-twelfth of 1.25% of the Group I Pool Scheduled Principal
Balance for such Remittance Date.
GROUP I REMAINING AMOUNT AVAILABLE: As to any Remittance Date, the
Group I Available Distribution Amount less the sum of the Class I A Distribution
Amount and the Class I B-1 Distribution Amount.
GROUP I WEIGHTED AVERAGE NET CONTRACT RATE: As to any Remittance Date
and the Group I Contracts, the per annum rate equal to (i) the weighted average
of the Annual Percentage Rates borne by the Group I Contracts and applicable to
scheduled payments due in the Due Period preceding such Remittance Date less
(ii) (x) if the Company is the Servicer, 0.00% or (y) if the Company is no
longer the Servicer, 1.25%.
GROUP II: With respect to the Contracts, the Group II Contracts, and
with respect to the Certificates, the Group II Certificates. When the words
"Group II" immediately precede another defined term herein, the application of
such term will be limited to the Group II Contracts and/or the Group II
Certificates.
GROUP II AVAILABLE DISTRIBUTION AMOUNT: As to any Remittance Date, (a)
the sum of (i) the amount on deposit in the Group II Certificate Account as of
the end of the Due Period ending immediately prior to such Remittance Date, and
(ii) the Monthly Advance with respect to Group II made in respect of such
Remittance Date REDUCED BY (b) the sum of (i) scheduled payments of principal
and interest for Group II Contracts due after such Due Period and (ii) amounts
permitted to be withdrawn by the Servicer from the Group II Certificate Account
pursuant to clauses (i) through (v), inclusive, and (vii) of Section 6.02.
GROUP II AVAILABLE FUNDS SHORTFALL: As to any Remittance Date, the
amount, if any, by which the Group II Available Distribution Amount is less than
the amount required to be distributed on the Group II Certificates on such
Remittance Date pursuant to clauses C(i) through (x) or clauses D(i) through
(x), as applicable, of Section 6.01(a).
GROUP II CERTIFICATE: Any one of the Class II A-1 Certificates, Class
II B-1 Certificates, Class II B-2 Certificates, Class II B-3 Certificates or
Class II B-4 Certificates.
GROUP II CERTIFICATE ACCOUNT: The custodial account or accounts created
and maintained pursuant to Section 5.05 with respect to the Group II Contracts.
GROUP II CERTIFICATE FLOOR AMOUNT: As to any Remittance Date,
$2,645,378.00.
GROUP II CONTRACT: Each Contract sold to the Trust which bears interest
at a variable rate.
GROUP II CUMULATIVE REALIZED LOSSES: As to any Remittance Date, the
Aggregate Net Liquidation Losses for Group II Contracts for the period from the
Cut-off Date through the end of the related Due Period.
GROUP II CURRENT REALIZED LOSS RATIO: As to any Remittance Date, the
annualized percentage derived from the fraction, the numerator of which is the
sum of the Aggregate Net Liquidation Losses for Group II Contracts for the three
preceding Due Periods and the denominator of which is the arithmetic average of
the Group II Pool Scheduled Principal Balances for such Remittance Date and the
preceding two Remittance Dates.
GROUP II INTEREST FORMULA DISTRIBUTION AMOUNT: As to any Remittance
Date, an amount equal to the sum of the Class II A-1 Interest Formula
Distribution Amount, Class II B-1 Interest Formula Distribution Amount, Class II
B-2 Interest Formula Distribution Amount, Class II B-3 Interest Formula
Distribution Amount and Class II B-4 Interest Formula Distribution Amount.
GROUP II MONTHLY SERVICING FEE: With respect to any Remittance Date, an
amount equal to one-twelfth of 1.25% of the Group II Pool Scheduled Principal
Balance for such Remittance Date.
GROUP II REMAINING AMOUNT AVAILABLE: As to any Remittance Date, the
Group II Available Distribution Amount less the sum of the Class II A
Distribution Amount, the Class II B-1 Distribution Amount and the Class II B-2
Distribution Amount and the Class II B-3 Distribution Amount.
GROUP II WEIGHTED AVERAGE CONTRACT RATE: As to any Remittance Date and
the Group II Contracts, the per annum rate equal to the weighted average of the
Annual Percentage Rates borne by the Group II Contracts and applicable to
scheduled payments due in the Due Period preceding such Remittance Date.
GUARANTEE PAYMENT: As to any Remittance Date and the Group I
Certificates, the amount, if any, by which (a) the Class I B-2 Formula
Distribution Amount for such Remittance Date exceeds (b) the Group I Remaining
Amount Available. As to any Remittance Date and the Group II Certificates, the
amount, if any, by which (a) the Class II B-4 Formula Distribution Amount for
such Remittance Date exceeds (b) the Group II Remaining Amount Available.
GUARANTEE REIMBURSEMENT AMOUNT: As to each Certificate Group and any
Remittance Date, an amount equal to the lesser of (a) the related Available
Distribution Amount for such Remittance Date less the portion thereof that
represents the sum of the amounts (i) distributed on the related Certificates
(other than the Class R Certificate) on such Remittance Date, (ii) distributed
in respect of the Available Funds Shortfall, if any, of the other Certificate
Group on such Remittance Date and (iii) paid to the Servicer in respect of the
Monthly Servicing Fee pursuant to clause A(xi) or B(xi) (in the case of Group I
Guarantee Payments) or pursuant to clause C(xiv) or D(xiv) (in the case of Group
II Guarantee Payments) on such Remittance Date and (b) the aggregate amount of
outstanding Guarantee Payments relating to such Certificate Group that remain
unreimbursed as of such Remittance Date.
HAZARD INSURANCE POLICY: With respect to each Contract, the policy of
fire and extended coverage insurance (and federal flood insurance, if
applicable) required to be maintained for the related Manufactured Home, as
provided in Section 5.09, and which, as provided in Section 5.09, may be a
blanket insurance policy maintained by the Servicer in accordance with the terms
and conditions of Section 5.09.
INDEX: As to any Group II Contract, the published rate upon which the
related Remittance Rate is calculated.
INITIAL PRINCIPAL AMOUNT: With respect to the Group I Contracts,
$154,919,226.84. With respect to the Group II Contracts, $132,268,899.79.
INITIAL REQUIRED OVERCOLLATERALIZATION AMOUNT: $4,629,411.49.
INTEREST FORMULA DISTRIBUTION AMOUNT: As to any Remittance Date, the
Class I A-1 Interest Formula Distribution Amount, the Class I A-2 Interest
Formula Distribution Amount, the Class I A-3 Interest Formula Distribution
Amount, the Class I A-4 Interest Formula Distribution Amount, the Class I A-5
Interest Formula Distribution Amount, the Class I M-1 Interest Formula
Distribution Amount, the Class I B-1 Interest Formula Distribution Amount, the
Class I B-2 Interest Formula Distribution Amount, the Class II A-1 Interest
Formula Distribution Amount, the Class II B-1 Interest Formula Distribution
Amount, the Class II B-2 Interest Formula Distribution Amount, the Class II B-3
Interest Formula Distribution Amount and the Class II B-4 Interest Formula
Distribution Amount, as applicable.
INTEREST PERIOD: With respect to the Class I A-1 Certificates and each
Class of Group II Certificates and any Remittance Date, the period commencing on
the preceding Remittance Date (or in the case of the first Remittance Date, the
Closing Date) through the day preceding such Remittance Date. With respect to
each Class of Group I Certificates (other than the Class I A-1 Certificates) and
any Remittance Date, the period from the first day of the calendar month
preceding the month of such Remittance Date through the last day of such
calendar month on the basis of a 360-day year consisting of twelve 30-day
months.
LAND-AND-HOME CONTRACT: A Contract that is secured by a Mortgage on
real estate on which the related Manufactured Home is situated, and which
Manufactured Home is considered or classified as part of the real estate under
the laws of the jurisdiction in which it is located.
LAND-AND-HOME CONTRACT FILE: With respect to each Land-and-Home
Contract,
(a) the original of the Land-and-Home Contract, and, in the case of
each Bi-weekly Contract, the original of the bi-weekly rider for such
Contract, and, in the case of each Escalating Principal Payment
Contract, the original of the graduated payment rider for such
Contract;
(b) the original related Mortgage with evidence of recording thereon
and any title document for the related Manufactured Home;
(c) with respect to any Land-and-Home Contract not originated by
Vanderbilt, the assignment of the Land-and-Home Contract from the
originator to Vanderbilt with evidence of recording thereon;
(d) with respect to any Land-and-Home Contract originated by
Vanderbilt, an endorsement of such Land-and-Home Contract by Vanderbilt
without recourse;
(e) with respect to the Land-and-Home Contracts located in the ten
states with the highest concentration of Land-and-Home Contracts, an
Opinion of Counsel to the effect that Vanderbilt need not cause to be
recorded any assignment which relates to Land-and-Home Contracts in
such states to protect the Trustee's and the Certificateholders'
interest in such Land-and-Home Contracts; provided, however, if
Vanderbilt fails to deliver such an Opinion of Counsel for any such
states, with respect to the Land-and-Home Contracts located in those
states, Vanderbilt shall provide an original executed assignment of the
Mortgage, with evidence of recording thereon, showing the assignment
from Vanderbilt to the Trustee; and
(f) any extension, waiver or modification agreement(s) for each
Land-and-Home Contract on the Schedule.
LAND SECURED CONTRACT: A Contract that is secured by (i) a security
interest in a Manufactured Home and (ii) a Mortgage on real estate on which the
related Manufactured Home is situated, but such Manufactured Home is not
considered or classified as part of the real estate under the laws of the
jurisdiction in which it is located.
LATE PAYMENT FEES: Any late payment fees paid by Obligors on Contracts
after all sums received have been allocated first to regular installments due or
overdue and all such installments are then paid in full.
LIBOR: As to any date, the rate for United States dollar deposits for
one month which appear on the Telerate Screen LIBOR Page 3750 as of 11:00 A.M.,
London time. If such rate does not appear on such page (or such other page as
may replace that page on that service, or if such service is no longer offered,
such other service for displaying LIBOR or comparable rates as may be reasonably
selected by the Seller after consultation with the Trustee), the rate will be
the Reference Bank Rate. If no such quotations can be obtained and no Reference
Bank Rate is available, LIBOR will be LIBOR applicable to the preceding
Remittance Date.
LIBOR BUSINESS DAY: Any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in the State of New York or in the city
of London, England are required or authorized by law to be closed.
LIFETIME CAP: With respect to a Group II Contract, the maximum APR, if
any, that may be borne by such Contract over its term, as set forth as such
therein; provided, however, that solely for the purposes of calculating the
Weighted Average Lifetime Cap on any given date, each Group II Contract as to
which a maximum APR has not been set forth in such Contract shall be deemed to
have a Lifetime Cap equal to its APR on such date.
LIMITED GUARANTEE: The obligation of CHI to make Guarantee Payments as
set forth in Section 6.05.
LIQUIDATED CONTRACT: Any defaulted Contract as to which the Servicer
has determined that all amounts which it expects to recover from or on account
of such Contract have been recovered; provided that any defaulted Contract in
respect of which the related Manufactured Home and, in the case of Land-and-Home
Contracts, Mortgaged Property have been realized upon and disposed of and the
proceeds of such disposition have been received shall be deemed to be a
Liquidated Contract.
LIQUIDATION EXPENSES: All reasonable out-of-pocket expenses (exclusive
of overhead expenses) which are incurred by the Servicer in connection with the
liquidation of any defaulted Contract, on or prior to the date on which the
related Manufactured Home and, in the case of Land-and-Home Contracts, Mortgaged
Property are disposed of, including, without limitation, legal fees and
expenses, any unreimbursed amount expended by the Servicer pursuant to Section
5.06 or 5.09 (to the extent such amount is reimbursable under the terms of
Section 5.06 or 5.09, as the case may be) respecting such Contract and any
unreimbursed expenditures for property taxes or for property restoration or
preservation that are related to such liquidation.
LIQUIDATION PROCEEDS: Cash (including insurance proceeds other than
those applied to the restoration of the related Manufactured Home or released to
the related Obligor in accordance with the normal servicing procedures of the
Servicer) received in connection with the liquidation of defaulted Contracts,
whether through repossession or otherwise.
LOAN-TO-VALUE RATIO: The fraction, expressed as a percentage, the
numerator of which is the original principal balance of the related Contract and
the denominator of which is the Original Value of the related Manufactured Home
(including for this purpose the Original Value of any Mortgaged Property not
constituting a part of the Manufactured Home).
MANUFACTURED HOME: A unit of manufactured housing which meets the
requirements of Section 25(e)(10) of the Code, including all accessions thereto,
securing the indebtedness of the Obligor under the related Contract.
MINIMUM APR: With respect to a Group II Contract, the minimum APR, if
any, that may be borne by such Contract over its term, as set forth as such
therein.
MONTHLY ADVANCE: As to any Remittance Date and the Contracts of each
Group, the aggregate of all scheduled payments of principal and interest which
were due during the related Due Period on any such Contracts that remained
Outstanding at the end of such Due Period and were not collected during such Due
Period, exclusive of any such scheduled payment which the Servicer has
determined would be a Nonrecoverable Advance if an advance in respect of such
scheduled payment were made.
MONTHLY ADVANCE REIMBURSEMENT AMOUNT: Any amount received or deemed to
be received by the Servicer pursuant to Section 6.04(c) in reimbursement of a
Monthly Advance made out of its own funds.
MONTHLY EXCESS SPREAD: As to Group I and any Remittance Date, the
portion, if any, of the Group I Available Distribution Amount remaining after
the distribution on such Remittance Date of the amounts specified in clauses
A(i) through (x) or clauses B(i) through (x), as applicable, of Section 6.01(a).
As to Group II and any Remittance Date, the portion, if any, of the Group II
Available Distribution Amount (other than any portion thereof representing the
Overcollateralization Reduction Amount, if any, for such Remittance Date)
remaining after the distribution on such Remittance Date of the amounts
specified in clauses C(i) through (x) or clauses D(i) through (x), as
applicable, of Section 6.01(a).
MONTHLY REPORT: The monthly report described in Section 7.01.
MONTHLY SERVICING FEE: With respect to each Group of Contracts and any
Remittance Date, an amount equal to one-twelfth of 1.25% of the Pool Scheduled
Principal Balance for such Group for such Remittance Date.
MOODY'S: Moody's Investors Service, Inc. or its successor in interest.
MORTGAGE: The mortgage or deed of trust creating a lien on an estate in
fee simple interest in the real property securing a Contract.
MORTGAGE LOANS: The mortgage loans or deeds of trust secured by a
mortgage or deed of trust of one- to four-family residential properties,
described in the Contract Schedule and constituting part of the corpus of the
Trust, which are to be sold and assigned by the Company to the Trustee and which
are the subject of this Agreement. The Mortgage Loans include, without
limitation, all related security interests and any and all rights to receive
payments which are due pursuant thereto from and after the Cut-off Date, but
exclude any rights to receive payments which are due pursuant thereto prior to
the Cut-off Date.
MORTGAGE LOAN FILE: With respect to each Mortgage Loan,
(a) the original related Mortgage, with evidence of recording indicated
thereon, and the original related mortgage note, if any;
(b) the original assignment and any intervening assignments of the
Mortgage, with evidence of recording thereon, showing a complete chain
of assignment of the Mortgage Loan from origination of the Mortgage
Loan to Vanderbilt;
(c) the original assignment, with evidence of recording thereon,
showing the assignment from Vanderbilt to the Trustee; and
(d) any extension, modification or waiver agreement(s) for each
Mortgage Loan on the Schedule.
MORTGAGED PROPERTY: The property subject to a Mortgage.
NET FUNDS CAP: As to any Remittance Date, the per annum rate equal to a
fraction, expressed as a percentage, (A) whose numerator equals the amount by
which (i) the sum of (a) the aggregate amount of interest due on the Group II
Contracts on the related Due Date and (b) the Overcollateralization Reduction
Amount, if any, for such Remittance Date exceeds (ii) the sum of (1) the product
of (a) one-twelfth of the Group II Pool Scheduled Principal Balance on the first
day of the Due Period immediately preceding the month in which such Remittance
Date occurs and (b)(x) if the Company is the Servicer, 0.00%, or (y) if the
Company is no longer the Servicer, 1.25% and (2) the product of (a) one-twelfth
of the Group II Pool Scheduled Principal Balance on the first day of the Due
Period immediately preceding the month in which such Remittance Date occurs and
(b)(x) if the Overcollateralization Amount is less than the Required
Overcollateralization Amount for such Remittance Date, 0.75% and (y) if the
Overcollateralization Amount is greater than or equal to the Required
Overcollateralization Amount for such Remittance Date, 0.00%, and (B) whose
denominator equals the product of (i) the aggregate Principal Balance of the
Group II Certificates and (ii) the actual number of days elapsed in the Interest
Period divided by 360.
NET LIQUIDATION PROCEEDS: As to any Liquidated Contract, Liquidation
Proceeds net of the sum of (i) Liquidation Expenses and (ii) any amount required
to be paid to the Obligor or any other Person with an interest in the
Manufactured Home or any related Mortgaged Property that is senior to the
interest of the Trust Fund.
NON RECORDATION OPINION: As defined in Section 2.04(c).
NONRECOVERABLE ADVANCE: Any advance made or proposed to be made
pursuant to Section 6.04, which the Servicer believes, in its good faith
judgment, is not, or if made would not be, ultimately recoverable from
Liquidation Proceeds or otherwise. In determining whether an advance is or will
be nonrecoverable, the Servicer need not take into account that it might receive
any amounts in a deficiency judgment. The determination by the Servicer that any
advance is, or if made would constitute, a Nonrecoverable Advance, shall be
evidenced by an Officer's Certificate of the Servicer delivered to the Trustee
and stating the reasons for such determination.
OBLIGOR: Each Person who is indebted under a Contract or who has
acquired a Manufactured Home subject to a Contract.
OFFICER'S CERTIFICATE: A certificate signed by the President, a Vice
President, the Treasurer, the Secretary or one of the Assistant Treasurers or
Assistant Secretaries or any other duly authorized officer of the Company or the
Servicer, as appropriate, and delivered to the Trustee as required by this
Agreement.
OPINION OF COUNSEL: A written opinion of counsel, who may be the
counsel for the Company or the Servicer and who shall be acceptable to the
Trustee.
ORIGINAL CLASS I A-1 PRINCIPAL BALANCE: $43,000,000.
ORIGINAL CLASS I A-2 PRINCIPAL BALANCE: $31,000,000.
ORIGINAL CLASS I A-3 PRINCIPAL BALANCE: $26,000,000.
ORIGINAL CLASS I A-4 PRINCIPAL BALANCE: $25,483,000.
ORIGINAL CLASS I A-5 PRINCIPAL BALANCE: $6,972,000.
ORIGINAL CLASS I M-1 PRINCIPAL BALANCE: $6,197,000.
ORIGINAL CLASS I B-1 PRINCIPAL BALANCE: $6,197,000.
ORIGINAL CLASS I B-2 PRINCIPAL BALANCE: $10,070,000.
ORIGINAL CLASS II A-1 PRINCIPAL BALANCE: $100,522,000.
ORIGINAL CLASS II B-1 PRINCIPAL BALANCE: $13,227,000.
ORIGINAL CLASS II B-2 PRINCIPAL BALANCE: $3,969,000.
ORIGINAL CLASS II B-3 PRINCIPAL BALANCE: $5,291,000.
ORIGINAL CLASS II B-4 PRINCIPAL BALANCE: $9,259,000.
ORIGINAL VALUE: With respect to any Manufactured Home that was new at
the time the related Contract was originated, the sum of the down payment
(including the value allocated to any trade-in unit or land pledged as
additional security or in lieu of the down payment), the original amount
financed on the related Contract, which may include sales and other taxes and
premiums for related insurance, and, in the case of a Land-and-Home Contract,
the value of the land securing the Contract as estimated by the dealer. With
respect to any Manufactured Home that was used at the time the related Contract
was originated, the total delivered sales price of such Manufactured Home
(including, for this purpose, any Mortgaged Property not constituting a part of
the Manufactured Home), plus sales and other taxes and, to the extent financed
under such Contract, premiums for related insurance.
ORIGINATOR: Any of the originators of Acquired Contracts listed in
Exhibit J hereto.
OUTSTANDING: With respect to any Contract as to the time of reference
thereto, a Contract that has not been fully prepaid, has not become a Liquidated
Contract, and has not been purchased pursuant to Section 3.05 prior to such time
of reference.
OUTSTANDING AMOUNT ADVANCED: As to any Remittance Date and each Group,
the aggregate of all Monthly Advances remitted by the Servicer out of its own
funds pursuant to Section 6.04 with respect to such Group, less the aggregate of
all related Monthly Advance Reimbursement Amounts actually received prior to
such Remittance Date.
OVERCOLLATERALIZATION AMOUNT: As to any Remittance Date, an amount
equal to the difference between the Group II Pool Scheduled Principal Balance as
of the end of the immediately preceding Due Period and the aggregate Principal
Balance of the Group II Certificates on such Remittance Date (after taking into
account all other distributions to be made on such Remittance Date pursuant to
Section 6.01(a)).
OVERCOLLATERALIZATION REDUCTION AMOUNT: As to any Remittance Date, an
amount equal to the least of (i) that portion of the Group II Available
Distribution Amount for such Remittance Date that, absent the existence of any
Excess Overcollateralization Amount, would be distributed in payment of the
Group II Formula Principal Distribution Amount on such Remittance Date pursuant
to paragraph C. or D., as applicable, of Section 6.01(a), (ii) the Excess
Overcollateralization Amount, if any, on such Remittance Date and (iii) the
Group II Formula Principal Distribution Amount for such Remittance Date.
OWNERSHIP INTEREST: As defined in Section 4.08(b).
PARTIAL PREPAYMENT: Any Principal Prepayment other than a Principal
Prepayment in Full.
PAYING AGENT: Any paying agent appointed pursuant to Section 4.05.
PERCENTAGE INTEREST: As to any Certificate of any Class, the percentage
interest evidenced thereby in distributions required to be made on the
Certificates of such Class, such percentage interest being equal to the
percentage obtained by dividing the denomination of such Certificate by the
aggregate of the denominations of all of the outstanding Certificates of such
Class (or, in the case of the Class R Certificate, being equal to the percentage
specified on the face of such Class R Certificate).
PERIODIC CAP: With respect to a Group II Contract, the provision in
each Group II Contract that limits permissible increases and decreases in such
Contract's APR on any date on which such APR adjusts pursuant to the terms of
such Contract.
PERMITTED TRANSFEREE: As defined in Section 4.08(b).
PERSON: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
PHYSICAL CERTIFICATES: Initially, the Class I B-2, Class II B-4 and
Class R Certificates.
PLAN ASSETS: As defined in Section 4.02(b).
POOL FACTOR: As of any Remittance Date and as to any Class of
Certificates, the percentage obtained by dividing the Class I A-1 Principal
Balance, the Class I A-2 Principal Balance, the Class I A-3 Principal Balance,
the Class I A-4 Principal Balance, the Class I A-5 Principal Balance, the Class
I M-1 Principal Balance, the Class I B-1 Principal Balance, the Class I B-2
Principal Balance, the Class II A-1 Principal Balance, the Class II B-1
Principal Balance, the Class II B-2 Principal Balance, the Class II B-3
Principal Balance or the Class II B-4 Principal Balance, as the case may be
(after giving effect to the distribution on such Remittance Date), by the
Original Class I A-1 Principal Balance, the Original Class I A-2 Principal
Balance, the Original Class I A-3 Principal Balance, the Original Class I A-4
Principal Balance, the Original Class I A-5 Principal Balance, the Original
Class I M-1 Principal Balance, the Original Class I B-1 Principal Balance, the
Original Class I B-2 Principal Balance, the Original Class II A-1 Principal
Balance, the Original Class II B-1 Principal Balance, the Original Class II B-2
Principal Balance, the Original Class II B-3 Principal Balance or the Original
Class II B-4 Principal Balance, respectively, carried out to seven decimal
places.
POOL SCHEDULED PRINCIPAL BALANCE: As to any Remittance Date and with
respect to any Group, the Total Original Contract Pool Principal Balance for
such Group less the aggregate of the Formula Principal Distribution Amounts for
such Group (exclusive of the amounts in clause (f) of the related definition of
"Formula Principal Distribution Amount") for all prior Remittance Dates.
PRINCIPAL BALANCE: The Class I A-1 Principal Balance, the Class I A-2
Principal Balance, the Class I A-3 Principal Balance, the Class I A-4 Principal
Balance, the Class I A-5 Principal Balance, the Class I M-1 Principal Balance,
the Class I B-1 Principal Balance, the Class I B-2 Principal Balance, the Class
II A-1 Principal Balance, the Class II B-1 Principal Balance, the Class II B-2
Principal Balance, the Class II B-3 Principal Balance or the Class II B-4
Principal Balance, as applicable.
PRINCIPAL PREPAYMENT: (i) Subject to clause (ii) of this definition,
with respect to any Due Date for a Contract, any payment or any portion thereof
or other recovery on such Contract (other than a Liquidated Contract or a
Contract repurchased pursuant to Section 3.05) received on or prior to such Due
Date (but after the immediately preceding Due Date) that exceeds the amount
necessary to bring such Contract current as of such Due Date and that the
Obligor has notified or confirmed with the Servicer are to be treated as a
prepayment of principal; (ii) notwithstanding the provisions of the preceding
clause (i), if any payment or any portion thereof or other recovery on a
Contract (other than a Liquidated Contract or a Contract repurchased pursuant to
Section 3.05) is sufficient to pay the outstanding principal balance of such
Contract, all accrued and unpaid interest at the APR to the payment date and, at
the option of the Servicer, all other outstanding amounts owing on such
Contract, the portion of the payments or recoveries on such Contract during such
Due Period that is equal to the Scheduled Principal Balance of such Contract
after giving effect to the scheduled payment on such Contract due in such Due
Period; and (iii) any cash deposit made with respect to a Contract pursuant to
Section 3.05.
PRINCIPAL PREPAYMENT IN FULL: Any Principal Prepayment specified in
clause (ii) of the definition of the term "Principal Prepayment".
PRIVATE CERTIFICATES: The Class I B-2, Class II B-4 and Class R
Certificates; provided however, any Class of Certificates offered pursuant to an
effective registration statement shall no longer be a Private Certificate.
RATING AGENCIES: Moody's and Fitch.
RECORD DATE: With respect to the initial Remittance Date and the Group
I and Group II Certificates, the Closing Date. With respect to any Remittance
Date thereafter and the Fixed Rate Certificates and the Class R Certificate, the
close of business of the last Business Day of the month preceding the month of
the related Remittance Date. With respect to any Remittance Date after the
initial Remittance Date and the Floating Rate Certificates, the Business Day
preceding the related Remittance Date. In the event that a Definitive
Certificate is issued with respect to a Class of Certificates, the Record Date
with respect to such Class will be the close of business of the last Business
Day of the month preceding the month of the related Remittance Date.
RECORDED DOCUMENTS: As defined in Section 2.04.
REFERENCE BANK RATE: As to any Interest Period as follows: the
arithmetic mean (rounded upwards, if necessary, to the nearest one sixteenth of
a percent) of the offered rates for United States dollar deposits for one month
which are offered by the Reference Banks as of 11:00 A.M., London time, on the
second LIBOR Business Day prior to the first day of such Interest Period to
prime banks in the London interbank market for a period of one month in amounts
approximately equal to the related Class Principal Balance; provided that at
least two such Reference Banks provide such rate. If fewer than two offered
rates appear, the Reference Bank Rate will be the arithmetic mean of the rates
quoted by one or more major banks in New York City, selected by the Seller after
consultation with the Trustee, as of 11:00 A.M., New York City time, on such
date for loans in U.S. Dollars to leading European Banks for a period of one
month in amounts approximately equal to the outstanding related Class Principal
Balance. If no such quotations can be obtained, the Reference Bank Rate shall be
the Reference Bank Rate applicable to the preceding Interest Period.
REFERENCE BANKS: Three major banks that are engaged in the London
interbank market, selected by the Seller after consultation with the Trustee.
REMIC: A real estate mortgage investment conduit within the meaning of
Section 860D(a) of the Code.
REMIC CERTIFICATE MATURITY DATE: The "latest possible maturity date" of
the Regular Certificates as that term is defined in Section 2.07.
REMIC PROVISIONS: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Section 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations promulgated thereunder, as the foregoing may be in effect from time
to time.
REMITTANCE DATE: The 7th day of any month, or if such 7th day is not a
Business Day, the first Business Day immediately following the 7th day of the
month, commencing with December 7, 1999.
REMITTANCE RATE: As to each Class of Certificates, the Class I A-1
Remittance Rate, the Class I A-2 Remittance Rate, the Class I A-3 Remittance
Rate, the Class I A-4 Remittance Rate, the Class I A-5 Remittance Rate, the
Class I M-1 Remittance Rate, the Class I B-1 Remittance Rate, the Class I B-2
Remittance Rate, the Class II A-1 Remittance Rate, the Class II B-1 Remittance
Rate, the Class II B-2 Remittance Rate, the Class II B-3 Remittance Rate or the
Class II B-4 Remittance Rate , as applicable.
REO ACCOUNT: As defined in Section 5.17.
REPLACED CONTRACT: As defined in Section 3.05(b).
REPOSSESSION PROFITS: As to any Remittance Date, the excess, if any, of
Net Liquidation Proceeds in respect of each Contract that became a Liquidated
Contract during the related Due Period over the sum of the unpaid principal
balance of such Contract plus accrued and unpaid interest at the related APR on
the unpaid principal balance thereof from the Due Date to which interest was
last paid by the Obligor to the Due Date for such Contract in the month in which
such Contract became a Liquidated Contract.
REPURCHASE OBLIGATION: The obligation of the Company, set forth in
Section 3.05, to repurchase the related Contracts as to which there exists an
uncured breach of a representation or warranty contained in Section 3.02 or
3.03.
REPURCHASE PRICE: With respect to any Contract required to be
repurchased hereunder, an amount equal to the remaining principal amount
outstanding on such Contract as of the beginning of the Due Period in which such
repurchase occurs plus accrued interest from the Due Date with respect to which
the Obligor last made the entire payment then due to the Due Date (or the
latest-occurring Due Date, in the case of a Bi-weekly Contract or a Semi-Monthly
Contract) in the Due Period in which such Contract is repurchased.
REQUIRED CLASS II B PAYMENT: As to any Remittance Date on which (i) the
Class II B Principal Distribution Test is met and (ii) the Class II B Percentage
is greater than 50%, the amount required to be distributed to the Class II B
Certificates so as to reduce the Class II B Percentage to 50%.
REQUIRED OVERCOLLATERALIZATION AMOUNT: As to any Remittance Date prior
to the date on which the Class II B Principal Distribution Test is satisfied,
the Initial Required Overcollateralization Amount. As to any Remittance Date on
and after the date on which the Class II B Principal Distribution Test is
satisfied, the lesser of (i) the Initial Required Overcollateralization Amount
and (ii) the greater of (a) 7.0% of the Group II Pool Principal Balance as of
such Remittance Date and (b) .75% of the Group II Total Original Contract Pool
Principal Balance.
RESPONSIBLE OFFICER: When used with respect to the Trustee, any officer
with direct responsibility for the administration of this Agreement and any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also to whom, with respect
to a particular matter, such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
SCHEDULED PRINCIPAL BALANCE: As to any Contract and any Remittance Date
or the Cut-off Date, the principal balance of such Contract as of the Due Date
(or, in the case of a Bi-weekly Contract or a Semi-Monthly Contract, the latest
occurring Due Date) in the Due Period next preceding such Remittance Date or the
Cut-off Date as specified in the Amortization Schedule at the time relating
thereto after giving effect 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.
SEMI-MONTHLY CONTRACT: Any Contract pursuant to which the scheduled
level payment of interest and principal is due twice each month.
SENIOR CERTIFICATE: With respect to Group I, any one of the Class I A-1
Certificates, Class I A-2 Certificates, Class I A-3 Certificates and/or Class I
A-4 Certificates, and, with respect to Group II, any one of the Class II A-1
Certificates.
SERVICER: The Company or its successor in interest or any successor
under this Agreement as provided by Section 8.08.
SERVICING FILE: All documents, records, and other items maintained by
the Servicer with respect to a Contract and not included in the corresponding
Contract File, Land-and-Home Contract File or Mortgage Loan File, as applicable,
including the credit application, credit reports and verifications, appraisals,
tax and insurance records, payment records, insurance claim records,
correspondence, and all historical computerized data files.
SERVICING OFFICER: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Contracts whose name
appears on a list of servicing officers furnished on the Closing Date to the
Trustee by the Servicer, as such list may from time to time be amended.
STEP-UP RATE CONTRACT: Any Contract bearing interest during an initial
period or periods at a fixed rate or fixed rates that are lower than the fixed
rate borne thereafter.
SUBORDINATE CERTIFICATE: With respect to Group I, any one of the Class
I A-5 Certificates, Class I M-1 Certificates, Class I B-1 Certificates or Class
I B-2 Certificates, and, with respect to Group II, any one of the Class II B-1
Certificates, Class II B-2 Certificates, Class II B-3 Certificates or Class II
B-4 Certificates.
TELERATE SCREEN LIBOR PAGE 3750: The display designated as page 3750 on
the Telerate Service (or such other page as may replace page 3750 on that
service for the purpose of displaying London interbank offered rates of major
banks).
TOTAL ORIGINAL CONTRACT POOL PRINCIPAL BALANCE: As of any Remittance
Date and with respect to any Group, the aggregate principal balance of the
Contracts in such Group as of the Cut-off Date.
TRANSFER: As defined in Section 4.08(b).
TRANSFER AFFIDAVIT: As defined in Section 4.08(b).
TRANSFER DATE: With respect to each Contract, the Closing Date.
TRANSFEREE: As defined in Section 4.08(b).
TRUSTEE: The Bank of New York, or its successors or assigns or any
successor under this Agreement.
TRUSTEE'S FEES: The fees, expenses and disbursements of the Trustee set
forth in Section 10.05.
TRUST FUND: The corpus of the trust created by this Agreement, to the
extent described herein, consisting of the Contracts (including, without
limitation, the security interest created thereby), including all rights to
receive payments on the Contracts that have not been received prior to the
Cut-off Date (including any such payments that were due prior to the Cut-off
Date but were not received by the Company prior to the Cut-off Date); such
assets as shall from time to time be identified as deposited in the Certificate
Accounts; all Manufactured Homes and any related Mortgaged Properties that
secured Contracts not purchased pursuant to Section 3.05 and that have been
acquired in realizing upon such Contracts; the Mortgages; the Repurchase
Obligation; the proceeds of the Hazard Insurance Policies; and the Limited
Guarantees for the benefit of the Class I B-2 and Class II B-4
Certificateholders.
UCC: The Uniform Commercial Code as in effect in the relevant
jurisdiction or, in the case of Louisiana, the comparable provisions of
Louisiana law.
UNDERWRITERS: Prudential Securities Incorporated and Banc of America
Securities LLC.
WEIGHTED AVERAGE LIFETIME CAP: As to any Remittance Date, a per annum
rate equal to the product of (i) the average of the Lifetime Caps of the Group
II Contracts that were Outstanding Contracts on the first day of the related
Interest Period, weighted by the respective Scheduled Principal Balances of such
Contracts on the first day of such Interest Period, and (ii) a fraction whose
numerator is the actual number of days elapsed in the related Interest Period
and whose denominator is 360.
Section 1.02. Determination of Scheduled Payments. Scheduled payments
due on any Contract shall be determined without giving effect to any adjustments
required by reason of the bankruptcy of the related Obligor or any similar
proceeding or moratorium or any waiver, extension or grace period.
[End of Article I]
<PAGE>
Article II
CONVEYANCE OF CONTRACTS; TRUST FUND;
PERFECTION OF SECURITY INTEREST;
CUSTODY OF CONTRACTS
Section 2.01. Conveyance of Contracts and Other Rights. (a) The
Company, concurrently with the execution and delivery hereof, does hereby
transfer, sell, assign, set over and otherwise convey to the Trustee, without
recourse (i) all of the right, title and interest of the Company in and to the
Contracts (including, without limitation, the security interests created
thereby) and any related Mortgages, including all interest and principal
payments that have not been received prior to the Cut-off Date (including any
such payments that were due prior to the Cut-off Date but were not received by
the Company prior to the Cut-off Date), (ii) all of the rights under any Hazard
Insurance Policy relating to a Manufactured Home securing a Contract for the
benefit of the creditor of such Contract, (iii) all documents contained in the
Contract Files, the Land-and-Home Contract Files and the Mortgage Loan Files, if
any, (iv) the Certificate Accounts and all funds and other assets deposited
therein and all instruments, securities (including without limitation, Eligible
Investments) or other property in which the Certificate Accounts may be invested
in whole or in part from time to time and (v) all proceeds derived from any of
the foregoing.
As of the related Transfer Date, the ownership of each Contract and the
contents of the related Contract File, Land-and-Home Contract File or Mortgage
Loan File, as applicable, and Servicing File are vested in the Trustee. The
contents of each File and Servicing File are and shall be held in trust by the
Servicer for the benefit of the Trustee as the owner thereof and the Servicer's
possession of the contents of each Servicing File so retained is for the sole
purpose of servicing the related Contract, and such retention and possession by
the Servicer is in a custodial capacity only. The contents of the Land-and-Home
Contract Files and the Mortgage Loan Files, if any, shall be delivered to the
Trustee, or a custodian on behalf of the Trustee, in accordance with Section
2.04 hereof. Neither the Company nor the Servicer shall take any action
inconsistent with the Trustee's ownership of the Contracts, and the Company and
the Servicer shall promptly indicate to all inquiring parties that the Contracts
have been sold, transferred, assigned, set over and conveyed to the Trustee and
shall not claim any ownership interest in the Contracts.
(b) Although the parties intend that the conveyance of the Company's
right, title and interest in and to the items of property listed in Section
2.01(a) pursuant to this Agreement shall constitute a purchase and sale and not
a loan, if such conveyance is deemed to be a loan, the parties intend that the
rights and obligations of the parties to such loan shall be established pursuant
to the terms of this Agreement. The parties also intend and agree that the
Company shall be deemed to have granted to the Trustee, and the Company does
hereby grant to the Trustee, a perfected first priority security interest in all
of the right, title and interest in, to and under the items of property listed
in Section 2.01(a), 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 in any
Certificates, 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.
The Company acknowledges and agrees that the conveyance of the
Contracts for the consideration stated in this Agreement is a transfer for
sufficient value and consideration and that the transfer is not an avoidable
conveyance under any applicable state or federal fraudulent conveyance laws.
Section 2.02. Filing; Name Change or Relocation. (a) On or prior to the
Transfer Date, the Servicer shall cause to be filed in the office of the
Secretary of State of Tennessee, UCC-1 financing statements describing the
Contracts being transferred on such Transfer Date and naming the Company as
"Seller" and the Trustee as "Purchaser". Each financing statement shall bear a
statement on the face thereof indicating that the parties intend the financing
statement to evidence a true sale of the Contracts, but that if the transaction
is recharacterized as a loan from the described Purchaser to the described
Seller, the financing statement is to perfect the described Purchaser's security
interest in the Contracts. The Servicer shall cause to be filed all necessary
continuation statements for each of the foregoing UCC-1 financing statements.
From time to time, the Servicer shall take and cause to be taken such actions
and execute such documents as are necessary to perfect and protect the
Certificateholders' interests in the Contracts and their proceeds and the
Manufactured Homes and any related Mortgaged Property against all other Persons,
including, without limitation, the filing of financing statements, amendments
thereto and continuation statements, the execution of transfer instruments and
the making of notations on or taking possession of all records or documents of
title; provided, however, that the Company, so long as it is the Servicer, shall
not be required to cause notations to be made on any document of title relating
to any Manufactured Home or to execute any transfer instrument (including,
without limitation, any UCC-3 assignments) relating to any Manufactured Home
(other than a notation or a transfer instrument necessary to show the Company as
the lienholder or legal title holder) or to file documents in real property
records with respect to a Manufactured Home or related Contract or any related
Mortgaged Property, absent notice from the Trustee or the Company or actual
knowledge that such Manufactured Home (other than a Manufactured Home securing a
Land-and-Home Contract) has become real property under applicable state law;
provided that the preceding proviso shall not have any effect on the
representation and warranty in Section 3.02(k) and the Company's obligations in
respect thereof in Section 3.05; provided, further, that the Servicer (if the
Company is not the Servicer) shall not be required to protect the Trustee from
any liens, claims, charges or other encumbrances on the Contracts, their
proceeds or the Manufactured Homes created by the Company or conveyances of the
Contracts or their proceeds by the Company. Nothing in the preceding sentence
shall be construed to limit the indemnification obligations of the Servicer set
forth in Section 10.05 hereof. The Company agrees to take whatever action is
necessary to enable the Servicer to file financing statements and otherwise act
to perfect and protect the Certificateholders' interests in the Contracts, the
Manufactured Homes and any related Mortgage or Mortgaged Property. In
particular, the Company shall deliver to the Trustee on or before the Closing
Date a power of attorney substantially in the form as Exhibit K hereto,
authorizing the Trustee to, among other things, record assignments of Mortgages
securing Land Secured Contracts. Assuming that the Company and the Trustee
perform such actions as are required at the direction of the Servicer, the
Servicer will maintain a perfected first priority security interest in each
Manufactured Home and any related Mortgaged Property so long as the related
Contract is the property of the Trust Fund; provided, however, that the Company,
so long as it is the Servicer, shall not be required to cause notations to be
made on any document of title relating to any Manufactured Home, to execute any
transfer instrument (including, without limitation, any UCC-3 assignments)
relating to any Manufactured Home (other than a notation or a transfer
instrument necessary to show the Company as lienholder or legal title holder) or
to file documents in real property records with respect to a Manufactured Home
or related Contract or any related Mortgaged Property, absent notice from the
Trustee, or the Company or actual knowledge that such Manufactured Home (other
than a Manufactured Home securing a Land-and-Home Contract) has become real
property under applicable state law.
(b) During the term of this Agreement, the Company shall not change its
name, identity or structure or relocate its chief executive office without first
giving notice to the Trustee. If any change in the Company's name, identity or
structure or the relocation of its chief executive office would make any
financing or continuation statement or notice of lien filed under this Agreement
seriously misleading within the meaning of applicable provisions of the UCC or
any title statute, the Company, no later than five days after the effective date
of such change, shall file such amendments as may be required to preserve and
protect the Certificateholders' interests in the Contracts and proceeds thereof
and in the Manufactured Homes.
(c) The Company hereby represents and warrants that its current
principal executive office is located in the State of Tennessee. During the term
of this Agreement, the Company will maintain its principal executive office in
one of the States of the United States.
(d) The Servicer agrees to pay all reasonable costs and disbursements
in connection with the perfection and the maintenance of perfection, as against
all third parties, of the Certificateholders' right, title and interest in and
to the Contracts (including, without limitation, the security interest in the
Manufactured Homes granted thereby) and any related Mortgages.
Section 2.03. Acceptance by Trustee. The Trustee hereby acknowledges
conveyance of the Contracts and any related Mortgages to the Trustee, and
declares that the Trustee, directly or through a custodian (which, except with
respect to the Land-and-Home Contracts and the Mortgage Loan Files, shall be the
Servicer pursuant to Section 5.16), holds and will hold such Files in trust for
the use and benefit of all present and future Certificateholders. The Trustee
hereby certifies that although it has not undertaken any independent
investigation or review of any Contract, any Contract File, any Land-and-Home
Contract File, any Mortgage Loan File or any Servicing File, no Responsible
Officer of the Trustee has received written notice or has actual knowledge of
(a) any adverse claim, lien or encumbrance with respect to any Contract, (b) any
Contract being overdue or dishonored, (c) any evidence on the face of any
Contract of any security interest therein adverse to the Trustee's interest, or
(d) any defense against or claim against any Contract by the Obligor or by any
other party.
Section 2.04. Delivery of Land-and-Home Contract Files and Mortgage
Loan Files and Recordation. (a) In connection with the conveyance pursuant to
Section 2.01, with respect to each Land-and-Home Contract and each Mortgage
Loan, if any, the Company shall (i) enter into a custodial agreement (the
"Custodial Agreement") on the Closing Date substantially in the form attached
hereto as Exhibit A-2 and (ii) deliver or cause to be delivered the related
Land-and-Home Contract Files and Mortgage Loan Files, as applicable, to the
custodian under the Custodial Agreement on behalf of the Trustee, within 30 days
of the Closing Date in accordance with such Custodial Agreement. Such delivery
of the Files shall be accompanied by a certificate of delivery signed by the
Company substantially in the form set forth as Exhibit A to the Custodial
Agreement.
(b) In lieu of the items to be recorded and delivered pursuant to
Sections (b), (c) and (e) of the definition of Land-and-Home Contract File and
Sections (a), (b) and (c) of the definition of Mortgage Loan File (the "Recorded
Documents"), if the original Mortgage or assignment has not been returned by the
applicable recording office or is not otherwise available, the Company shall
provide the custodian with a copy thereof together with an Officer's Certificate
(which may be a blanket Officer's Certificate of the Company covering all such
Mortgages and assignments) certifying that the copy is a true and correct copy
of the original Mortgage or original assignment, as applicable, submitted for
recording, which will be (1) replaced by the original Mortgage or original
assignment when it is so returned or (2) if the recording office in the
applicable jurisdiction retains the original Mortgage or original assignment or
the original Mortgage or original assignment has been lost, a copy of such item
certified by the applicable recording office.
(c) The Company shall deliver each Recorded Document (or if the
recording office in the applicable jurisdiction retains the original Mortgage or
original assignment or the original Mortgage or original assignment has been
lost, a copy of such item certified by the applicable recording office) to the
custodian no later than the earlier of (i) five Business Days after receipt
thereof and (ii) within 180 days of the Closing Date. In addition, within that
same time period, the Company shall deliver to the custodian any other original
documents constituting a part of the Files.
(d) Within 30 days of the Closing Date and with respect to the ten
states which have the highest concentration of Land-and-Home Contracts, by
Cut-off Date principal balance of the Contract Pool, the Company shall deliver
an Opinion of Counsel to the Trustee and the Rating Agencies to the effect that
the Company need not cause to be recorded any assignment which relates to
Land-and-Home Contracts in such states to protect the Trustee's and the
Certificateholders' interest in such Land-and-Home Contracts (a "Non Recordation
Opinion"). Such Opinions of Counsel shall be addressed to the Trustee and the
Rating Agencies. In the event that any Opinion of Counsel referred to in the
preceding sentence is not obtainable with respect to a state after reasonable
effort, then the Company shall either record the assignments of mortgage for
each Land-and-Home Contract located in such state or substitute an Eligible
Substitute Contract (which would not be a Land-and-Home Contract in such state)
for each Land-and-Home Contract in such state, in each case, within 90 days of
the Closing Date. At the conclusion of the 90 day period, the aggregate
principal balance of Land-and-Home Contracts for which a Non Recordation Opinion
has not been delivered and for which the related assignments of mortgage have
not been recorded shall not exceed 10% of the total principal balance of the
Contract Pool.
Section 2.05. REMIC Election; Designation of Regular and Residual
Interests; Tax Year. The Company will cause the Trust Fund to elect to be
treated as a REMIC. The Group I and Group II Certificates will constitute
"regular interests" in the REMIC. The Class R Certificate will constitute the
sole class of "residual interest" in the REMIC. The Holder of the Class R
Certificate hereby agrees to pay any taxes assessed against it as holder of the
"residual interest" in the REMIC. The tax year of the Trust Fund shall be the
calendar year, and the Trust Fund shall use the accrual method of accounting.
Section 2.06. Designation of Startup Day. The Closing Date is hereby
designated as the "startup day" of the REMIC within the meaning of Section
860G(a)(9) of the Code.
Section 2.07. REMIC Certificate Maturity Date. Solely for purposes of
satisfying Section 1.860G-1(a)(4)(iii) of the REMIC Provisions, and based upon
certain assumptions described below, the "latest possible maturity date" of each
of the Group I and Group II Certificates is the Remittance Date in January 15,
2032. The foregoing date represents the date by which the Certificates would be
reduced to zero on the date on which the Contract with the latest maturity date
in the Contract Pool matures plus twenty-five months.
[End of Article II]
<PAGE>
Article III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties Regarding the Company. The
Company makes the following representations and warranties to the Trustee and
the Certificateholders (to the extent such representations and warranties are
stated as being made by it):
(a) Organization and Good Standing; Licensing. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Tennessee and has the corporate power to own its assets and to
transact the business in which it is currently engaged. The Company 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 Company. The
Company was properly licensed in each jurisdiction at the time of its purchase
of each Contract in such jurisdiction to the extent required by the laws of such
jurisdiction as applied to the purchase and servicing of such Contract.
(b) Authorization; Binding Obligations. The Company has the power and
authority to make, execute, deliver and perform this Agreement and perform all
of the transactions contemplated to be performed by it under the Agreement, and
has taken all necessary corporate action to authorize the execution, delivery
and performance of this Agreement. When executed and delivered, this Agreement
will constitute the legal, valid and binding obligation of the Company
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 Company is not required to obtain the
consent of any other party or any consent, license, approval or authorization
from, or registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except such as have been obtained.
(d) No Violations. The execution, delivery and performance of this
Agreement by the Company will not violate any provision of any existing law or
regulation or any order or decree of any court applicable to the Company or the
charter or bylaws of the Company, or constitute a material breach of any
mortgage, indenture, contract or other agreement to which the Company is a party
or by which the Company 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 Company, threatened, against the Company or any of its
properties or with respect to this Agreement or the Certificates which, if
adversely determined, would in the opinion of the Company have a material
adverse effect on the transactions contemplated by this Agreement.
Section 3.02. Representations and Warranties Regarding Each Contract.
The Company represents and warrants to the Trustee and the Certificateholders as
to each Contract as of the Closing Date (except as otherwise expressly stated):
(a) Contract Schedule. The information set forth in the Contract
Schedule is true and correct.
(b) Payments. As of the Cut-off Date, no scheduled payment of principal
or interest on any Contract was more than 59 days past due and was not made
directly or indirectly by the Company on behalf of the Obligor.
(c) No Waivers. The terms of the Contract and any related Mortgage have
not been waived, altered or modified in any respect, except by instruments or
documents identified in the Contract File, the Land-and-Home Contract File or
the Mortgage Loan File, as applicable.
(d) Binding Obligation. The Contract and any related Mortgage is the
legal, valid and binding obligation of the Obligor thereunder and is enforceable
in accordance with its terms, except as such enforceability may be limited by
laws affecting the enforcement of creditors' rights generally and by general
principles of equity.
(e) No Defenses. The Contract and any related Mortgage is not subject
to any right of rescission, setoff, counterclaim or defense, including the
defense of usury, and the operation of any of the terms of the Contract or the
exercise of any right thereunder will not render the Contract unenforceable in
whole or in part or subject to any right of rescission, setoff, counterclaim or
defense, including the defense of usury, and no such right of rescission,
setoff, counterclaim or defense has been asserted with respect thereto.
(f) Insurance. The Manufactured Home securing the Contract is covered
by a Hazard Insurance Policy in the amount required by Section 5.09. All
premiums due as of the Closing Date on such insurance have been paid in full.
(g) Origination. The Contract was either (i) originated by a
manufactured housing dealer acting, to the best of the Company's knowledge, in
the regular course of its business and was purchased by the Company or an
Originator in the regular course of its business, or (ii) originated by the
Company or an Originator in the regular course of its business.
(h) Lawful Assignment. The Contract and any related Mortgage was not
originated in and is not subject to the laws of any jurisdiction whose laws
would make the transfer or ownership of the Contract under this Agreement or
pursuant to transfers of Certificates unlawful or render the Contract
unenforceable.
(i) Compliance with Law. All requirements of any federal, state or
local law, including, without limitation, usury, truth-in-lending and equal
credit opportunity laws and lender licensing laws, applicable to the Contract
and any related Mortgage have been complied with, and the Servicer 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) Contract in Force. The Contract and any related Mortgage has not
been satisfied or subordinated in whole or in part or rescinded, and the
Manufactured Home securing the Contract has not been released from the lien of
the Contract and any related Mortgage in whole or in part.
(k) Valid Security Interest. The Contract, together with any related
Mortgage or certificate of title, creates a valid, subsisting and enforceable
first priority security interest in favor of the Company in the Manufactured
Home covered thereby and, in the case of a Land-and-Home Contract or a Mortgage
Loan, a first mortgage lien on the related Mortgaged Property; and the Trustee
has a valid and perfected first priority security interest in such Manufactured
Home and, in the case of a Land-and-Home Contract or a Mortgage Loan, a first
mortgage lien on the related Mortgaged Property.
(l) Capacity of Parties. All parties to the Contract and any related
Mortgage had capacity to execute the Contract.
(m) Good Title. The Company originated or purchased the Contract and
any related Mortgage for value and took possession thereof in the ordinary
course of its business, without knowledge that the Contract was subject to any
security interest. Immediately prior to the transfer of the Contract and any
related Mortgage by the Company, the Company had good and marketable title
thereto free and clear of any encumbrance, equity, loan, pledge, charge, claim
or security interest and was the sole owner thereof with full right to transfer
the Contract and any related Mortgage to the Trustee.
(n) No Defaults. As of the Closing Date, there was no default, breach,
violation or event permitting acceleration existing under the Contract and any
related Mortgage 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 Contract (except payment delinquencies
permitted by clause (b) above). The Company has not waived any such default,
breach, violation or event permitting acceleration.
(o) No Liens. As of the Closing Date, there are, to the best of the
Company's knowledge, no liens or claims which have been filed for work, labor or
materials affecting the Manufactured Home or related Mortgaged Property securing
the Contract or the Mortgage Loan, as applicable, which are or may be liens
prior to, or equal or coordinate with, the lien of the Contract.
(p) Equal Installments. Except for Escalating Principal Payment
Contracts and the Step-up Rate Contracts, each Group I Contract has a fixed APR
and provides for level monthly, bi-weekly or semi-monthly payments of principal
and interest which fully amortize the loan over its term. If the Contract is a
Group II Contract, it has a variable APR based on the Index. The Contract is an
Actuarial Contract.
(q) Enforceability. Each Contract and any related Mortgage contains
customary and enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the realization against the collateral of the
benefits of the security.
(r) One Original. There is only one original executed Contract, and
each original Contract is in the custody of the Company or otherwise held on
behalf of the Trustee on the Closing Date.
(s) Loan-to-Value Ratio. At the time of its origination all of the
Contracts had a Loan-to-Value Ratio not greater than 100%.
(t) Primary Residence. To the best of the Company's knowledge, at the
time of origination of the Contracts, at least 95% of the Manufactured Homes
securing Contracts in each Group were the related Obligors' primary residences.
(u) Not Real Estate. Except with respect to Land-and-Home Contracts and
Mortgage Loans, the related Manufactured Home is personal property, was personal
property at the time of the execution and delivery of the related Contract by
the parties thereto, and is not and was not, at such time, considered or
classified as part of the real estate on which it is located under the laws of
the jurisdiction in which it is located. The related Manufactured Home is, to
the best of the Company's knowledge, free of damage and in good repair.
(v) Notation of Security Interest. If the related Manufactured Home is
located in a state in which notation of a security interest on the title
document is required or permitted to perfect such security interest, the title
document shows, or if a new or replacement title document with respect to such
Manufactured Home is being applied for such title document will be issued within
180 days and will show, the Company or the related Originator as the holder of a
first priority security interest in such Manufactured Home. If the related
Manufactured Home is located in a state in which the filing of a financing
statement or the making of a fixture filing under the UCC is required to perfect
a security interest in manufactured housing, such filings or recordings have
been duly made and show the Company as secured party. If the related
Manufactured Home secures a Land-and-Home Contract, the related land securing
such Land-and-Home Contract is subject to a Mortgage properly filed in the
appropriate public recording office and naming the Company as mortgagee. In each
such case, the Trustee has the same rights as the secured party of record would
have (if such secured party were still the owner of the Contract) against all
Persons claiming an interest in such Manufactured Home.
(w) Qualified Mortgage for REMIC. Each Contract is secured by a "single
family residence" within the meaning of Section 25(e)(10) of the Code and is a
"qualified mortgage" under Section 860G(a)(3) of the Code.
(x) Stamping of Contracts. Within seven days after the Closing Date,
each Contract will have been stamped with the following legend: "This Contract
has been assigned to The Bank of New York, as Trustee, under the Pooling and
Servicing Agreement dated as of October 26, 1999 or to any successor Trustee
thereunder."
(y) Secondary Mortgage Market Enhancement Act. With respect to each
Contract, the related Manufactured Home is a "manufactured home" within the
meaning of 42 United States Code, Section 5402(6), and at the origination of
each such Contract, the Company was approved for insurance by the Secretary of
Housing and Urban Development pursuant to Section 2 of the National Housing Act
and, at the origination of each Acquired Contract in Group II purchased by the
Company, the Originator of such Acquired Contract was a savings and loan
association, a savings bank or a Person approved for insurance by the Secretary
of Housing and Urban Development under Section 2 of the National Housing Act or
a "similar institution supervised and examined by a Federal or State authority"
within the meaning of Section 3(a)(41) of the Securities Exchange Act of 1934,
as amended.
Section 3.03. Representations and Warranties Regarding the Contracts in
the Aggregate. The Company represents and warrants that:
(a) Amounts. The aggregate principal amounts payable by Obligors under
the Group I Contracts and the Group II Contracts as of the Cut-off Date
(including scheduled principal payments due before the Cut-off Date but received
by the Company on or after the Cut-off Date and excluding scheduled principal
payments due on or after the Cut-off Date but received by the Company prior to
the Cut-off Date) equal or exceed the Group I Initial Principal Amount and the
Group II Initial Principal Amount, respectively, and each Contract has an APR
equal to or greater than 7.75%.
(b) Characteristics. The Contracts have the following characteristics
as of the Cut-off Date: (i) except for Group I Contracts secured by Manufactured
Homes located in Texas, North Carolina, South Carolina, Tennessee, Michigan and
Virginia not more than 4.86% of the Group I Contracts and except for Group II
Contracts secured by Manufactured Homes located in North Carolina, Tennessee,
Texas, South Carolina, Kentucky and Virginia, not more than 4.08% of the Group
II Contracts, in each case by remaining principal balance, are secured by
Manufactured Homes located in any one state, not more than 0.47% of the Group I
Contracts or 0.66% of the Group II Contracts, in each case by remaining
principal balance, are secured by Manufactured Homes located in an area with the
same zip code; (ii) no Group I Contract has a remaining maturity of less than 35
months or more than 360 months; (iii) the final scheduled payment date on the
Group I Contract with the latest maturity is December 1, 2029 and the final
scheduled payment date on the Group II Contract with the latest maturity is
December 15, 2029; (iv) no less than approximately 58.74% of the Group I Initial
Principal Amount or 80.68% of the Group II Initial Principal Amount is
attributable to loans for purchases of new Manufactured Homes, and no more than
approximately 41.26% of the Group I Initial Principal Amount or 19.32% of the
Group II Initial Principal Amount is attributable to loans for purchases of used
Manufactured Homes; (v) no Group I Contract was originated before July 29, 1989
and no Group II Contract was originated before June 6, 1996 ; (vi) no more than
19.76% of the Contracts by Cut-Off Date principal balance are Contracts for
which the related land was pledged in lieu of a down payment or a trade-in;
(vii) no more than 11.85% of the Contracts by Cut-Off Date principal balance are
Land-and-Home Contracts and no more than 2.49% of the Contracts by Cut-Off Date
principal balance are Mortgage Loans; (viii) no more than 01% of the Contracts
by Cut-off Date principal balance are Escalating Principal Payment Contracts;
(ix) 100% and 0% of the Group II Contracts by aggregate unpaid principal balance
reset annually and semi-annually, respectively; (x) 99.93% of the Group II
Contracts by aggregate unpaid principal balance consist of variable rate
contracts which adjust based on the monthly average yield on U.S. treasury
securities adjusted to a constant maturity of 5 years, 0.07% of the Group II
Contracts by aggregate unpaid principal balance consist of variable rate
contracts which adjust based on the monthly average yield on U.S. treasury
securities adjusted to a constant maturity of 1 year and 0% of the Group II
Contracts by aggregate unpaid principal balance consist of variable rate
contracts which adjust based on other indices; (xi) each Group II Contract has
an initial date for the adjustment of its Contract Rate no later than December
21, 2000; (xii) the Gross Margins on the Group II Contracts range from 2.150% to
9.820% and the weighted average of such Gross Margins as of the Cut-off Date was
approximately 4.487%.
(c) Computer Tape. The Computer Tape made available by the Servicer as
of the close of business on October 26, 1999 was accurate as of its date and
includes a description of the same Contracts that are described in the Contract
Schedule.
(d) Marking Records. On or before the Closing Date, the Company will
have caused the portions of the Electronic Ledger relating to the Contracts
constituting part of the Trust Fund to be clearly and unambiguously marked to
indicate that such Contracts constitute part of the Trust Fund and are owned by
the Trust Fund in accordance with the terms of the trust created hereunder.
(e) No Adverse Selection. Except for the effect of the representations
and warranties made in Section 3.02 and 3.03 and the effect of the geographical
distribution of the Manufactured Homes, no adverse selection procedures have
been employed in selecting the Contracts.
Section 3.04. Representations and Warranties Regarding the Contract
Files, the Land-and-Home Contract Files and the Mortgage Loan Files. The Company
represents and warrants that:
(a) Possession. Immediately prior to the Closing Date, the Servicer
will have possession of each original Contract and the remainder of the related
Contract File. In addition, the Servicer will have possession of the Servicing
Files with respect to each Contract, including each Land-and-Home Contract and
each Mortgage Loan. There are and there will be no custodial agreements in
effect materially and adversely affecting the right of the Company to make, or
to cause to be made, any delivery required hereunder.
(b) Bulk Transfer Laws. The transfer, assignment and conveyance of the
Contracts, the Contract Files, the Land-and-Home Contract Files and the Mortgage
Loan Files by the Company pursuant to this Agreement are not subject to the bulk
transfer or any similar statutory provisions in effect in any applicable
jurisdiction.
Section 3.05. Repurchases of Contracts or Substitution of Contracts for
Breach of Representations and Warranties. (a) The Company shall either (i)
repurchase a Contract at its Repurchase Price, or (ii) if the Company is able to
satisfy the conditions of Section 3.05(b), remove a Contract from the Trust Fund
and substitute therefor an Eligible Substitute Contract in accordance with and
subject to the limitations of Section 3.05(b), in each case not later than one
Business Day after the first Determination Date which is more than 90 days after
the Company becomes aware, or receives written notice from the Servicer or the
Trustee, of a breach of a representation or warranty of the Company set forth in
Sections 3.02 or 3.03 of this Agreement that materially adversely affects the
Trust Fund's interest in such Contract, unless such breach has been cured;
provided, however, that with respect to any Contract incorrectly described on
the Contract Schedule with respect to unpaid principal balance, which the
Company would otherwise be required to repurchase pursuant to this Section, the
Company may, in lieu of repurchasing such Contract, deposit in the related
Certificate Account not later than one Business Day after such Determination
Date cash in an amount sufficient to cure such deficiency or discrepancy; and
provided, further, that with respect to a breach of a representation or warranty
relating to the Contracts in the aggregate and not to each particular Contract,
the Company may select Contracts to repurchase or substitute for such that, had
such Contracts not been included as part of the related Contract Pool and after
giving effect to such substitution, if any, there would have been no breach of
such representation or warranty. It is understood and agreed that the obligation
of the Company to repurchase or substitute for any Contract as to which a breach
of a representation or warranty set forth in Section 3.02 or 3.03 of this
Agreement has occurred and is continuing shall constitute the sole remedy
respecting such breach available to the Certificateholders or the Trustee;
provided, however, that the Company shall defend and indemnify the Trustee, the
Trust Fund and Certificateholders against all costs, expenses, losses, damages,
claims and liabilities, including reasonable fees and expenses of counsel, which
may be asserted against or suffered by any of them as a result of third-party
claims arising out of any breach of a representation or warranty set forth in
Section 3.02 or 3.03. Nothing in the preceding sentence shall be construed to
limit the indemnification obligations of the Servicer set forth in Section 10.05
hereof. Notwithstanding any other provision of this Agreement, the obligation of
the Company under this Section shall not terminate upon an Event of Default and
the indemnification obligation of the Servicer in this Section shall survive the
resignation or removal of the Trustee and the termination of this Agreement.
Notwithstanding any other provision of this Agreement to the contrary,
any amount received on or recovered with respect to repurchased Contracts or
Replaced Contracts during or after the Due Period in which such repurchase
occurs shall be the property of the Company and need not be deposited in either
Certificate Account.
Notwithstanding the foregoing, the Company shall not deposit cash into
either Certificate Account pursuant to this Section 3.05 after the end of the
three month period beginning on the Closing Date unless it shall first have
obtained an Opinion of Counsel to the effect that such deposit will not give
rise to any tax under Section 860F(a)(1) of the Code or Section 860G(d) of the
Code. Any such deposit shall not be invested. If the Company is required to
purchase such Contract (or deposit cash in the related Certificate Account), the
Company shall guarantee the payment of any tax under Section 860F(a)(1) of the
Code or under Section 860G(d) of the Code 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 5.17 hereof are insufficient to pay such tax and all
other taxes chargeable under Section 5.17. If a payment of tax by the Company is
required in connection with a repurchase, the Company shall give the Trustee
notice of such tax and the amount of such tax and the date by which the Company
shall provide funds to the Trustee to cover such tax. The Trustee shall hold any
amount paid to it pursuant to the preceding sentence in an account that is not
part of the Trust Fund. The Servicer shall give notice to the Trustee at the
time of such repurchase of the amounts due from the Company pursuant to the
guarantee of the Company and 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 Company 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 Servicer.
In the event any tax that is guaranteed by the Company is refunded to
the Trust Fund or otherwise is determined not to be payable, the Company shall
be repaid the amount of such refund or that portion of any guarantee payment
made by the Company that is not applied to the payment of such tax.
Notwithstanding the above provisions of this Section 3.05(a), the
Company shall not be required to repurchase or substitute for any Contract on
account of a breach of the representation or warranty contained in Section
3.02(k) or (v) solely on the basis of failure by the Company to cause notations
to be made on any document of title relating to any Manufactured Home or to
execute any transfer instrument relating to any Manufactured Home (other than a
notation or a transfer instrument necessary to show the Company as lienholder or
legal title holder) unless (i) a court of competent jurisdiction has adjudged
that, because of such failure, the Trustee does not have a perfected
first-priority security interest in the related Manufactured Home or (ii) (A)
the Servicer has received written advice of counsel (with a copy to the Trustee)
to the effect that a court of competent jurisdiction has held that, solely
because of a substantially similar failure on the part of a pledgor or assignor
of manufactured housing contracts (who has perfected the assignment or pledge of
such contracts), a perfected first-priority security interest was not created in
favor of the pledgee or assignee (as the case may be) in a related manufactured
home which is located in such jurisdiction and which is subject to the same laws
regarding the perfection of security interest therein as apply to Manufactured
Homes located in such jurisdiction, and (B) the Servicer shall not have
completed all appropriate remedial action with respect to such Manufactured Home
within 180 days after receipt of such written advice. Any such advice shall be
from counsel selected by the Servicer on a non-discriminatory basis from among
the counsel used by the Servicer in its general business in the jurisdiction in
question. The Servicer shall have no obligation on an ongoing basis to seek any
advice with respect to the matters described in clause (ii) above. However, the
Servicer shall seek advice with respect to such matters whenever information
comes to the attention of its General Counsel which causes such General Counsel
to determine that a holding of the type described in clause (ii) (A) might
exist.
(b) On or prior to the date that is the second anniversary of the
Closing Date, the Company, at its election, may substitute one or more Contracts
for a Contract that it is obligated to repurchase pursuant to Section 3.05(a)
(such Contract being referred to as the "Replaced Contract") upon satisfaction
of the following conditions:
(i) each Contract to be substituted for the Replaced Contract is an
Eligible Substitute Contract and the Company delivers an Officer's
Certificate, substantially in the form of Exhibit F hereto, to the Trustee
certifying that such Contract is an Eligible Substitute Contract,
describing in reasonable detail how such Contract satisfies the definition
of the term "Eligible Substitute Contract" (as to satisfaction of
representations and warranties, such description shall be that such
Contract satisfies such representations and warranties) and certifying that
(a) the Contract File for such Contract is in the possession of the
Servicer or (b) the Land-and-Home Contract File or the Mortgage Loan File
for such Contract is in the possession of a custodian acting on behalf of
the Trustee;
(ii) the Company shall have delivered to the Trustee evidence of
filing with the appropriate office in Tennessee of a UCC-1 financing
statement describing such Contract executed by the Company as seller,
naming the Trustee as purchaser and bearing the statement set forth in
Section 2.02(a);
(iii) the Company shall have delivered to the Trustee an Opinion of
Counsel (a) to the effect that the substitution of such Contract for such
Replaced Contract will not cause the Trust Fund 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 that 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 Tennessee, naming the Company as debtor
and the Trustee as secured party, and the filing of continuation statements
as required by Section 2.02(a) of this Agreement, is necessary to perfect
as against third parties the conveyance of the Contracts by the Company to
the Trustee; and
(iv) if the aggregate of the Scheduled Principal Balances of the
Replaced Contracts, if any, within a particular Group is greater than the
Scheduled Principal Balances of the Contracts substituted for such Replaced
Contracts, the Company shall have deposited in the related Certificate
Account the amount of such excess and shall have included in the Officer's
Certificate required by clause (i) above a certification that such deposit
has been made.
Upon satisfaction of such conditions, the Servicer shall add each such Contract
to, and delete each such Replaced Contract from (or cause such addition and
deletion to be accomplished), the Contract Schedule and shall deliver a copy of
such amended Contract Schedule to the Trustee. Such substitution shall be
effected prior to the first Determination Date that occurs more than 90 days
after the Company becomes aware, or receives written notice from the Servicer or
the Trustee, of the breach referred to in Section 3.05(a).
(c) Promptly after the repurchase referred to in Section 3.05(a) or the
substitution referred to in Section 3.05(b), the Trustee shall execute such
documents as are presented to it by the Company and are reasonably necessary to
reconvey, without recourse, representation or warranty the repurchased Contract
or Replaced Contract, as the case may be, to the Company.
[End of Article III]
<PAGE>
Article IV
THE CERTIFICATES
Section 4.01. The Certificates. The Class I A, Class II A, Class I M-1,
Class I B, Class II B and Class R Certificate shall be substantially in the
forms annexed hereto as Exhibit B-1, Exhibit B-2, Exhibit B-3, Exhibit C-1,
Exhibit C-2 and Exhibit D, respectively, and Exhibit E (reverse of all
Certificates), with such immaterial changes as the Company deems appropriate,
and on original issue, shall be executed by manual or facsimile signature by an
authorized officer of the Trustee, countersigned by the Trustee and delivered to
or upon the written order of the Company. The Class I A-1 Certificates, Class I
A-2 Certificates, Class I A-3 Certificates, Class I A-4 Certificates, Class I
A-5 Certificates, Class I M-1 Certificates, Class I B-1 Certificates, Class II
A-1 Certificates, Class II B-1 Certificates, Class II B-2 Certificates and Class
II B-3 Certificates shall each be evidenced initially by single certificates
representing $43,000,000, $31,000,000, $26,000,000 $25,483,000, $6,972,000,
$6,197,000, $6,197,000, $100,522,000, $13,227,000, $3,969,000 and $5,291,000
respectively, in initial aggregate principal balance, beneficial ownership of
such Certificates to be held through Book-Entry Certificates. The Class I B-2
Certificates and Class II B-4 Certificates shall each be evidenced initially by
single certificates representing $10,070,000 and $9,259,000, respectively, in
initial aggregate principal balance. The Class I B-2, Class II B-4 and Class R
Certificate shall initially be held in the name of Vanderbilt SPC, Inc. Each
Certificate other than the Class R Certificate shall be issued in minimum dollar
denominations of $50,000 and integral dollar multiples of $1,000 in excess
thereof. Upon original issuance, the sum of the denominations of each Class of
the Class I A-1 Certificates, Class I A-2 Certificates, Class I A-3
Certificates, Class I A-4 Certificates, Class I A-5 Certificates, as the case
may be, shall equal the Original Class I A-1 Principal Balance, the Original
Class I A-2 Principal Balance, the Original Class I A-3 Principal Balance, the
Original Class I A-4 Principal Balance, the Original Class I A-5 Principal
Balance, respectively, the sum of the denominations of the Class I M-1
Certificates shall equal the Original Class I M-1 Principal Balance and the sum
of the denominations of each Class of the Class I B-1 Certificates and Class I
B-2 Certificates shall equal the Original Class I B-1 Principal Balance and the
Original Class I B-2 Principal Balance, respectively. Upon original issuance,
the sum of the denominations of each Class of the Class II A-1 Certificates,
Class II B-1 Certificates, Class II B-2 Certificates, Class II B-3 Certificates
and Class II B-4 Certificates shall equal the Original Class II A-1 Principal
Balance, the Original Class II B-1 Principal Balance, the Original Class II B-2
Principal Balance, the Original Class II B-3 Principal Balance and the Original
Class II B-4 Principal Balance, respectively. The Class R Certificate shall not
have a principal balance.
The Certificates shall be countersigned by manual signature on behalf
of the Trustee by one of its authorized officers or its Authenticating Agent
pursuant to Section 4.07. 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 countersignature and delivery of such Certificate or did
not hold such offices at the date of such Certificates. No Certificate shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on such Certificate a manual countersignature by the
Trustee or its Authenticating Agent and such countersignature upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly countersigned and delivered hereunder. All
Certificates shall be dated the date of their countersignature.
The rights of the Certificateholders to receive payments with respect
to the Trust Fund in respect of the Certificates, and all ownership interests of
the Certificateholders in such payments, shall be as set forth in this
Agreement.
Section 4.02. Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall cause to be kept at its Corporate Trust Office or, at the
election of the Trustee, at the office of its designated agent in New York City,
a Certificate Register in which, subject to such reasonable regulations as it
may prescribe, the Trustee shall provide for the registration of Certificates
and of transfers and exchanges of Certificates as herein provided.
(b) Subject to Section 4.02(c) and the other provisions of this
Section, upon surrender for registration of transfer of any Certificate at any
office or agency of the Trustee maintained for such purpose, the Trustee shall
execute, countersign and deliver, in the name of the designated transferee or
transferees, a Certificate of a like aggregate Percentage Interest and dated the
date of countersignature by the Trustee or its Authenticating Agent. No transfer
of an ERISA Restricted Certificate that is a Definitive Certificate shall be
made unless the Trustee shall have received either (i) a representation from the
proposed transferee to the effect that it is not an employee benefit plan
subject to Section 406 of ERISA or Section 4975 of the Code or a trustee of any
such plan or a person acting on behalf of any such plan or acquiring a
Certificate with the assets of any such plan to effect such transfer, (ii) if
the purchaser is an insurance company, a representation that the purchaser is an
insurance company which is purchasing such Certificates with funds contained in
an "insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60") and that the
purchase and holding of such Certificates are covered under PTCE 95-60 or (iii)
in the case of any such ERISA Restricted Certificate presented for registration
in the name of an employee benefit plan subject to ERISA, or a plan or
arrangement subject to Section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a trustee of any such plan or any other person acting
on behalf of any such plan or arrangement or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Trustee, which Opinion of
Counsel shall not be an expense of either the Trustee, the Trust Fund, the
Company or the Servicer, addressed to the Trustee, to the effect that the
purchase or holding of such Certificate will not result in the assets of the
Trust Fund being deemed to be "plan assets" and subject to the prohibited
transaction provisions of ERISA and the Code and will not subject the Trustee to
any obligation in addition to those expressly undertaken in this Agreement or to
any liability. For purposes of the preceding sentence, with respect to an ERISA
Restricted Certificate that is a Book-Entry Certificate, in the event the
representation letter referred to in the preceding sentence is not furnished,
such representation shall be deemed to have been made to the Trustee by the
transferee's (including an initial acquiror's) acceptance of the Certificates.
Notwithstanding anything else to the contrary herein, any purported transfer of
an ERISA Restricted Certificate to or on behalf of an employee benefit plan
subject to ERISA or to the Code without the delivery to the Trustee of an
Opinion of Counsel satisfactory to the Trustee as described above shall be void
and of no effect.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Trustee shall be under no liability to any Person for
any registration of transfer of any ERISA Restricted Certificate that is in fact
not permitted by this Section 4.02 or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with this Section 4.02.
Each Private Certificate shall bear a legend substantially to the
following effect:
"THIS CLASS [ ] CERTIFICATE HAS NOT BEEN 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 OR LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS
WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT OR
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 4.02 [WITH
RESPECT TO CLASS R: SECTION 4.08] OF THE AGREEMENT
REFERRED TO HEREIN."
No transfer of a Private Certificate shall be made unless such transfer
is made pursuant to an effective registration statement or in accordance with an
exemption from the requirements under the Securities Act of 1933, as amended, or
any applicable state securities laws. If such a transfer is to be made in
reliance upon an exemption from said Act and laws, prior to the registration of
any such transfer (i) the Trustee or the Company may require a written Opinion
of Counsel acceptable to and in form and substance satisfactory to the Trustee
and the Company that such transfer may be made pursuant to an exemption,
describing the applicable exemption and the basis therefor, from said Act and
laws or is being made pursuant to said Act and laws, which Opinion of Counsel
shall not be an expense of the Trustee, the Company or the Servicer, and (ii)
the Trustee shall require the transferee to execute a certification,
substantially in the form of Exhibit I hereto, acceptable to and in form and
substance satisfactory to the Company and the Trustee setting forth the facts
surrounding such transfer; provided that such Opinion of Counsel shall not be
required in the case of transfers by or to Vanderbilt SPC, Inc. Such Opinions of
Counsel shall not be an expense of the Trustee, the Company or the Servicer. If
a transfer of a Private Certificate is to be made pursuant to an effective
registration statement, prior to registration of any such transfer, the
transferor shall surrender such Private Certificate to be exchanged at any
office or agency of the Trustee maintained for such purpose. Whenever such
Private Certificate is so surrendered for exchange, the Trustee or its
Authenticating Agent shall execute, countersign and deliver, a Certificate or
Certificates which does not include the legend set forth in the preceding
paragraph. Each such Certificate which is also a Book-Entry Certificate shall
include the legend set forth Section 4.03(g) and shall be delivered to the
Depository.
(c) At the option of the Certificateholder, a Certificate may be
exchanged for another Certificate or Certificates of the same Class and of
authorized denominations of the same aggregate denomination, upon surrender of
the Certificate to be exchanged at any office or agency of the Trustee
maintained for such purpose. Whenever the Certificate is so surrendered for
exchange, the Trustee or its Authenticating Agent shall execute, countersign and
deliver, the Certificate or Certificates which the Certificateholder making the
exchange is entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange (if so required by the Trustee) shall be
duly endorsed by, or be accompanied by a written instrument of transfer in the
form satisfactory to the Trustee or the Certificate Registrar duly executed by,
the Holder thereof or his attorney duly authorized in writing.
(d) No service charge shall be made to the Holder for any registration
of transfer or exchange of a Certificate, but the Trustee may require payment of
a sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of such Certificate.
(e) All Certificates surrendered for registration of transfer or
exchange shall be held or disposed of in accordance with the standard procedures
of the Trustee.
(f) Except as provided in paragraph (g) 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) transfer of the Book-Entry Certificates may
not be registered 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 Book-Entry
Certificates; (iii) ownership and transfers of registration of the Book-Entry
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 only with the Depository and its nominee, Cede & Co., as
registered Holder of the Book-Entry Certificates for purposes of exercising the
rights of Holders under this Agreement, and requests and directions for and
votes of such Persons 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.
(g) If (x)(i) the Company or the Depository advises the Trustee in
writing that the Depository is no longer willing, qualified or able to properly
discharge its responsibilities as Depository, and (ii) the Company is unable to
locate a qualified successor, (y) the Company at its option advises the Trustee
in writing that it elects to terminate the book-entry system through the
Depository and obtains the consent of the Servicer to such termination, or (z)
after the occurrence of an Event of Default, the Depository notifies the Trustee
that Certificate Owners representing Fractional Interests aggregating not less
than 51% of the aggregate Fractional Interests of the Book-Entry Certificates
together have advised the Depository through the Depository Participants in
writing that the continuation of a book-entry system through the Depository is
no longer in the best interests of the Certificate Owners, the Trustee shall
send notice to the Depository for distribution to the Certificate Owners, of the
occurrence of any such event and of the availability of definitive, fully
registered Group I and Group II Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
Group I and Group II Certificates by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Trustee shall
countersign the Definitive Certificates. Neither the Company 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 the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder.
(h) On or prior to the Closing Date, there shall be delivered to the
Depository one Class I A-1 Certificate, one Class I A-2 Certificate, one Class I
A-3 Certificate, one Class I A-4 Certificate, one Class I A-5 Certificate, one
Class I M-1 Certificate, one Class I B-1 Certificate, one Class II A-1
Certificate, one Class II B-1 Certificate, one Class II B-2 Certificate and one
Class II B-3 Certificate in registered form registered in the name of the
Depository's nominee, Cede & Co., the total face amount of each of which
represents 100% of the Original Class I A-1 Principal Balance, 100% of the
Original Class I A-2 Principal Balance, 100% of the Original Class I A-3
Principal Balance, 100% of the Original Class I A-4 Principal Balance, 100% of
the Original Class I A-5 Principal Balance,100% of the Original Class I M-1
Principal Balance, 100% of the Original Class I B-1 Principal Balance, 100% of
the Original Class II A-1 Principal Balance, 100% of the Original Class II B-1
Principal Balance, 100% of the Original Class II B-2 Principal Balance and 100%
of the Original Class II B-3 Principal Balance respectively. Each Certificate
registered in the name of the Depository shall bear the following legend:
"Unless this Certificate is presented by an authorized representative
of The Depository Trust Company to the Trustee or its agent for
registration of transfer, exchange or payment, and any certificate issued
is registered in the name of Cede & Co. or such other name as requested by
an authorized representative of The Depository Trust Company and any
payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein."
(i) All transfers of a Class R Certificate shall also be made in
accordance with Section 4.08.
Section 4.03. Mutilated, Destroyed, Lost or Stolen Certificate. If (i)
any mutilated Certificate is surrendered to the Trustee or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (ii) there is delivered to the Trustee and any Certificate
Registrar such security or indemnity as may be required by it to save each of
them harmless, then, in the absence of notice to a Responsible Officer of the
Trustee that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall countersign and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of the same
Class and of like tenor and denomination. Upon the issuance of any new
Certificate under this Section, 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 replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the Trust Fund, as if originally issued,
whether or not the destroyed, lost or stolen Certificate shall be found at any
time.
Section 4.04. Persons Deemed Owners. The Company, the Servicer, the
Certificate Registrar, the Trustee and any Paying Agent may treat the Person in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving payments pursuant to Section 6.01 and for all other
purposes whatsoever, and none of the Company, the Servicer, any Paying Agent,
the Certificate Registrar nor the Trustee shall be affected by notice to the
contrary.
Section 4.05. Appointment of Paying Agent. The Trustee may appoint a
Paying Agent for the purpose of making distributions to Certificateholders
pursuant to Section 6.01 and payments pursuant to Section 5.17. Any Paying Agent
or its parent company so appointed either shall be a bank or trust company or
shall have a rating acceptable to the Rating Agencies. In the event of any such
appointment, on or prior to each Remittance Date, the Trustee shall deposit or
cause to be deposited with the Paying Agent, from amounts in each Certificate
Account, a sum sufficient to make the payments to the related Certificateholders
in the amounts and in the manner provided for in Section 6.01, such sum to be
held in trust for the benefit of the related Certificateholders.
The Trustee initially appoints itself as Paying Agent. The Trustee
shall cause each Paying Agent (other than itself) to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee
that such Paying Agent is at all times acting as agent for the Trustee and such
Paying Agent will hold all sums held by it for the payment to Certificateholders
in trust for the benefit of the Certificateholders entitled thereto until such
sums shall be paid to such Certificateholders.
Section 4.06. Access to List of Certificateholders' Names and
Addresses. The Certificate Registrar will furnish to the Trustee (if the Trustee
is not the Certificate Registrar), the Company and the Servicer within five days
after receipt by the Certificate Registrar of a request therefor from the
Trustee, the Company or the Servicer in writing, a list, in such form as the
Trustee, the Company or the Servicer reasonably may require, of the names and
addresses of the Certificateholders as of the most recent Record Date. If
Holders of Certificates of any Class evidencing, as to such Class, aggregate
Percentage Interests of 25% or more (the "Applicants") apply in writing to the
Trustee, and such application states that the Applicants desire to communicate
with other Certificateholders of such Class with respect to their rights under
this Agreement or under the Certificates of such Class and is accompanied by a
copy of the communication which such Applicants propose to transmit, then the
Trustee, within five Business Days after the receipt of such application, shall
afford such Applicants access during normal business hours to the most recent
list of Certificateholders of such Class 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 promptly shall 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, by receiving and holding a
Certificate, agrees with the Certificate Registrar and the Trustee that neither
the Servicer, the Certificate Registrar, the Company nor the Trustee shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Certificateholders hereunder, regardless of the
source from which such information was derived.
Section 4.07. 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. For all purposes of
this Agreement, the execution and delivery of Certificates by the Authenticating
Agent pursuant to this Section shall be deemed to be the execution and delivery
of Certificates "by the Trustee."
Section 4.08. Class R Certificate. (a) The Class R Certificate shall
not be assigned or transferred except in accordance with this Section 4.08 and
any other applicable provision of this Agreement.
(b) Each Person who has or acquires any Ownership Interest (as defined
below) in a Class R Certificate shall be deemed by the acceptance or acquisition
of such Ownership Interest in such Class R Certificate to have agreed to be
bound by the following provisions and to have irrevocably appointed the Servicer
as its attorney-in-fact to negotiate the terms of any mandatory sale under
clause (vi) below and to execute all instruments of transfer and to do all other
things necessary in connection with any such sale, and the rights of each Person
acquiring any Ownership Interest in a Class R Certificate are expressly subject
to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class
R Certificate shall be a Permitted Transferee (as defined below) and shall
promptly notify the Servicer and the Trustee of any change or impending
change in its status as a Permitted Transferee.
(ii) Any Ownership Interest in a Class R Certificate may not be
subject to a Transfer (as defined below) without the express written
consent of the Servicer (with a copy to the Trustee), and the Trustee shall
not recognize the Transfer (as defined below) of such Class R Certificate,
and such proposed Transfer shall not be effective, without such consent
with respect thereto. In connection with any proposed Transfer of any
Ownership Interest in a Class R Certificate, the Servicer shall, as a
condition to such consent, require delivery to it, in form and substance
satisfactory to it, and the proposed Transferee shall deliver to the
Servicer and the Trustee, the following:
(A) an affidavit (a "Transfer Affidavit") of the proposed
Transferee in the form attached as Exhibit H hereto; and
(B) an express agreement by the proposed Transferee to be bound
by and to abide by the provisions of this Section.
The Servicer shall notify the Trustee of any such Transfer to which it
consents.
(iii) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (ii) above, if the Servicer or a
Responsible Officer of the Trustee has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of any Ownership
Interest in a Class R Certificate to such proposed Transferee shall be
effected.
(iv) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (A) to require a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer any Ownership
Interest in such Class R Certificate and (B) not to Transfer any Ownership
Interest in such Class R Certificate or to cause the Transfer of any
Ownership Interest in such Class R Certificate to any other Person if it
has actual knowledge that such Person is not a Permitted Transferee.
(v) Any attempted or purported Transfer of any Ownership Interest in a
Class R Certificate in violation of the provisions of this Section shall be
absolutely null and void and shall vest no rights in the purported
Transferee. If any purported Transferee shall become the holder of an
Ownership Interest in a Class R Certificate in violation of the provisions
of this Section, then, upon discovery by a Responsible Officer of the
Trustee of, or due notification to the Trustee that the recognition of the
Transfer of such Ownership Interest in such Class R Certificate was not in
fact permitted by this Section, the last preceding Permitted Transferee
shall be restored to all rights as Holder thereof retroactive to the date
of Transfer of such Ownership Interest in such Class R Certificate. The
Trustee shall promptly notify the Servicer if it discovers or receives
notice of such an impermissible Transfer. The Trustee shall be under no
liability to any Person for permitting the Transfer of an Ownership
Interest in a Class R Certificate that is in fact not permitted by this
Section or for making any payments in respect of a Class R Certificate to
the Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was made
with the express prior written consent of the Servicer. The Trustee shall
be entitled but not obligated to recover from any Holder of a Class R
Certificate that was in fact not a Permitted Transferee at the time it
became a Holder or, at such subsequent time as it became other than a
Permitted Transferee, all payments made on such Class R Certificate at and
after such time. Any such payments so recovered by the Trustee shall be
paid and delivered by the Trustee to the last preceding Permitted
Transferee of such Class R Certificate.
(vi) If any purported Transferee shall be a Holder of a Class R
Certificate in violation of the restrictions in this Section, then the
Servicer shall have the right without notice to the Holder or any prior
Holder of such Class R Certificate to sell such Class R Certificate to a
purchaser selected by the Servicer on such terms as the Servicer may
choose. Such purchaser may be the Servicer itself or any Affiliate of the
Servicer. The proceeds of such sale, net of commissions (which may include
commissions payable to the Servicer or its Affiliates), expenses and taxes
due, if any, will be remitted by the Servicer to the last preceding
Permitted Transferee of such Class R Certificate, except that in the event
that the Servicer determines that the Holder or any prior Holder of such
Class R Certificate will be liable for any amount due under this Section or
any other provisions of this Agreement, the Servicer shall so inform the
Trustee, and the Trustee shall withhold a corresponding amount from such
remittance as security for such claim. The terms and conditions of any sale
under this clause (vi) shall be determined in the sole discretion of the
Servicer, and it shall not be liable for the exercise of such discretion to
any Person holding or purporting to hold a Class R Certificate.
Upon notice to the Servicer that any legal or beneficial interest in
any portion of a Class R Certificate has been transferred, either directly or
indirectly, to any Person that is not a Permitted Transferee or an agent thereof
(including a broker, nominee, or middleman) in contravention of the foregoing
restrictions, or that is a pass-through entity, as defined in Section 860E(e)(6)
of the Code, an interest in which is held of record by a Person that is not a
"Permitted Transferee," the Servicer agrees to furnish to the Internal Revenue
Service and those Persons specified in Section 860E(e)(5) of the Code such
information necessary to the application of Section 860E(e) of the Code as may
be required by the Code, including but not limited to, the present value of the
total anticipated excess inclusions with respect to such Class R Certificate (or
portion thereof) for periods after such Transfer and the total excess inclusions
for any taxable year allocable to any holder of an interest in such pass-through
entity which is not a Permitted Transferee. At the election of the Servicer, the
Servicer may charge a reasonable fee for computing and furnishing such
information to the transferor or to such agent or to such pass-through entity
referred to above; however, the Servicer shall in no event be excused from
furnishing such information to the Internal Revenue Service. The foregoing
restrictions on transfer contained in this Section 4.08(b) shall cease to apply
to Transfers occurring on or after the date on which there shall have been
delivered to the Trustee, the Company and the Servicer, in form and substance
satisfactory to the Servicer, an Opinion of Counsel that eliminating such
restrictions will not cause the Trust Fund to fail to qualify as a REMIC at any
time while the Certificates are outstanding.
"Ownership Interest" means any legal or beneficial, direct or indirect,
ownership or other interest.
"Permitted Transferee" means any Person other than (a) the United
States, a State or any political subdivision thereof, any possession of the
United States, or any agency or instrumentality of any of the foregoing (other
than an instrumentality that is a corporation if all of its activities are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of its board of directors is not selected by any such governmental
unit), (b) a foreign government, international organization or agency or
instrumentality of either of the foregoing (other than an instrumentality that
is a corporation if all of its activities are subject to tax and a majority of
its board of directors is not selected by any such governmental unit), (c) an
organization which is exempt from tax imposed by Chapter 1 of the Code
(including the tax imposed by Code Section 511 on unrelated business taxable
income) on any excess inclusions (as defined in Code Section 860E(c)(1)) with
respect to a Class R Certificate (except certain farmers' cooperatives described
in Code Section 521), (d) rural electric and telephone cooperatives described in
Code Section 1381(a)(2), (e) a Non-U.S. Person, and (f) any other Person so
designated by the Servicer based upon an Opinion of Counsel that the Transfer of
an Ownership Interest in a Class R Certificate to such Person may cause the
Trust Fund to fail to qualify as a REMIC at any time that the Certificates are
outstanding. The terms "United States," "State" and "International Organization"
shall have the meanings set forth in Code Section 7701 or successor provisions.
A "Non-U.S. Person" means an individual, corporation, partnership or other
entity which is not a "U.S. Person".
A "U.S. Person" means (i) a citizen or resident of the United States,
(ii) a corporation, partnership or other entity treated as a corporation or
partnership for United States federal income tax purposes organized in or under
the laws of the United States or any state thereof or the District of Columbia
(other than a partnership that is not treated as a United States person under
any applicable Treasury regulations) or (iii) an estate the income of which is
includible in gross income for United States tax purposes, regardless of its
source, or (iv) a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more United
States persons have authority to control all substantial decisions of the trust.
Notwithstanding the preceding sentence, to the extent provided in regulations,
certain trusts in existence on August 20, 1996 and treated as United States
persons prior to such date that elect to continue to be treated as United States
persons shall be considered United States persons as well.
"Transfer" means any direct or indirect transfer or sale of any
Ownership Interest in a Class R Certificate.
"Transferee" means any Person who is acquiring by Transfer any
Ownership Interest in a Class R Certificate.
(c) A Class I A-5, Class I M-1, Class I B-1, Class II A-1, Class II
B-1, Class II B-2 or Class II B-3 Certificate shall not be registered in the
name of the Company or any Person actually known to a Responsible Officer of the
Trustee to be an Affiliate thereof, unless the Trustee shall first have received
written notification from the Rating Agencies that such Transfer will not cause
a reduction or withdrawal of the rating then assigned to any of the Group I or
Group II Certificates.
[End of Article IV]
<PAGE>
Article V
ADMINISTRATION AND SERVICING OF CONTRACTS
Section 5.01. Responsibility for Contract Administration and Servicing.
The Servicer shall service and administer the Contracts and, subject to the
terms of this Agreement, shall have full power and authority to do any and all
things which it may deem necessary or desirable in connection with such
servicing and administration. Subject to Section 5.02, without limiting the
generality of the foregoing, the Servicer hereby is authorized and empowered
when the Servicer believes it appropriate in its best judgment, to execute and
deliver, on behalf of the Certificateholders and the Trustee or any of them, any
and all instruments of satisfaction or cancellation, or of partial or full
release or discharge and all other comparable instruments, with respect to the
Contracts and any related Mortgages and with respect to the Manufactured Homes
and any related Mortgaged Property. The Trustee shall execute and deliver to the
Servicer any powers of attorney and other documents prepared by the Servicer and
certified to the Trustee as being necessary or appropriate to enable the
Servicer to service and administer the Contracts. Such power of attorney shall
be in the form of Exhibit L hereto.
The Servicer may perform its servicing and administration functions, as
Servicer, pursuant to this Agreement through one or more subservicers. All
actions by any subservicer with respect to the servicing and administration of
the Contracts shall be treated as though done by the Servicer itself. All
documents, instruments or contracts executed by any subservicer on behalf of the
Servicer shall be treated by the Trustee as though executed by the Servicer
itself. The Servicer shall remain primarily liable for all actions of any
subservicer.
Section 5.02. Standard of Care. In managing, administering, servicing
and making collections on the Contracts pursuant to this Agreement, the Servicer
will exercise the same degree of skill and care, consistent with the terms of
this Agreement, that the Servicer exercises with respect to similar manufactured
housing contracts owned and serviced by the Servicer but in no event shall such
standard be lower than the standard prevailing in the industry; provided,
however, that notwithstanding the foregoing, the Servicer shall not release or
waive the right to collect the unpaid balance on any Contract; provided further
that nothing herein shall require the Servicer to violate any applicable law.
Section 5.03. Records. The Servicer, during the period it is servicer
hereunder, shall maintain such books of account and other records as will enable
the Trustee (if the Trustee so elects) to determine the status of each Contract.
Without limiting the generality of the preceding sentence, the Servicer shall
keep such records in respect of Liquidation Expenses as will enable the Trustee
(if the Trustee so elects) to determine that the correct amount of Net
Liquidation Proceeds in respect of a Liquidated Contract has been deposited in
the related Certificate Account.
Section 5.04. Inspection. At all times during the term hereof, the
Servicer shall afford the Trustee and its authorized agents reasonable access
during normal business hours to the Servicer's records relating to the Contracts
and will cause its personnel to assist in any examination of such records by the
Trustee or any of its authorized agents. The examination referred to in this
Section will be conducted in a manner which does not interfere unreasonably with
the Servicer's normal operations or customer or employee relations. Without
otherwise limiting the scope of the examination the Trustee may make, the
Trustee or its authorized agents, using generally accepted audit procedures, may
in their discretion verify the status of each Contract and review the records
relating thereto for conformity to Monthly Reports prepared pursuant to Article
VII and compliance with the standards represented to exist as to each Contract
in this Agreement.
(b) At all times during the term hereof, the Servicer shall keep
available a copy of the Contract Schedule at its principal executive office for
inspection by Certificateholders.
(c) On or before each Determination Date, the Servicer will, upon the
written request of the Trustee, provide to the Trustee a list of outstanding
Contracts, setting forth the principal balance of each such Contract as of the
Due Period immediately preceding such Determination Date.
(d) Notwithstanding the provisions of this Section 5.04, the Trustee
shall at no time have any duty or obligation to examine any records of the
Servicer or to recalculate or otherwise verify the accuracy of any certificate
or report prepared by the Servicer (including certificates or reports as to the
amount required to be deposited into either Certificate Account), and no implied
duty to do so shall be asserted against the Trustee.
Section 5.05. Establishment of and Deposits in Certificate Accounts. On
or before the Closing Date, the Trustee shall have established, and thereafter
shall maintain, with respect to each Group of Contracts, a Certificate Account
which is an Eligible Account, in the form of one or more separate custodial
accounts, titled (i) in the case of the Group I Contracts, "Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificates, 1999D (Vanderbilt
Mortgage and Finance, Inc., Seller), Group I, in trust for the Trustee" and (ii)
in the case of the Group II Contracts, "Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificates, 1999D (Vanderbilt Mortgage and
Finance, Inc., Seller), Group II, in trust for the Trustee". The Trustee shall
cause moneys in each Certificate Account to be invested in Eligible Investments
as directed in writing by the Servicer, which shall mature or, in the case of a
money market fund, be redeemed not later than the Business Day immediately
preceding the Remittance Date next following the date of such investment (except
that if such Eligible Investment is an obligation of the institution that
maintains such Certificate Account, then such Eligible Investments shall mature
or, in the case of a money market fund, be redeemed not later than such
Remittance Date) and shall not be sold or disposed of prior to its maturity. All
such Eligible Investments shall be made in the name of the Trustee. The Servicer
shall promptly notify the Trustee upon obtaining knowledge that an instrument or
account in which a Certificate Account is invested has ceased to be an Eligible
Investment or Eligible Account. All net income and gain realized from any such
investments, to the extent provided by this Agreement, shall be added to the
related Certificate Account. In no event shall the Trustee be liable for any
loss from any such investments.
The Servicer shall deposit in the applicable Certificate Account, as
promptly as practicable (but not later than the close of business of the second
Business Day) following receipt thereof:
(1) All amounts received from Obligors with respect to principal of
and interest on the related Contracts;
(2) All Net Liquidation Proceeds with respect to the related
Contracts;
(3) All amounts required to be deposited by the Company pursuant to
Sections 3.05(a) and (b) with respect to the related Contracts;
(4) All Monthly Advances with respect to the related Contracts
pursuant to Section 6.04; and
(5) All amounts required to be withdrawn from an REO Account and
deposited in the related Certificate Account in accordance with Section
5.17.
Section 5.06. Payment of Taxes. If the Servicer becomes aware of the
nonpayment by an Obligor of a personal property tax or other tax or charge which
may result in a lien upon a Manufactured Home prior to, or equal to or
coordinate with, the lien of the related Contract, the Servicer, consistent with
Section 5.02, shall take action to avoid the attachment of any such lien. If the
Servicer shall have paid any such personal property tax or other tax or charge
directly on behalf of an Obligor, the Servicer shall seek reimbursement therefor
only from the related Obligor (except as provided in the last sentence of this
Section) and may separately add such amount to the Obligor's obligation as
provided by the Contract, but, for the purposes of this Agreement, may not add
such amount to the remaining principal balance of the Contract. If the Servicer
shall have repossessed a Manufactured Home on behalf of the Certificateholders
and the Trustee, the Servicer shall pay the amount of any such personal property
tax or other tax or charge arising during the time such Manufactured Home is in
the Servicer's possession, unless the Servicer is contesting in good faith such
personal property tax or other tax or charge or the validity of the claimed lien
on such Manufactured Home. If the Obligor does not reimburse the Servicer for
payment of taxes pursuant to this Section and the related Contract is liquidated
after a default, the Servicer shall be reimbursed for its payment of such taxes
out of the related Liquidation Proceeds.
Section 5.07. Enforcement. (a) The Servicer, consistent with Section
5.02, will act with respect to the Contracts in such manner as will maximize the
receipt of principal and interest on such Contracts.
(b) The Servicer shall sue to enforce or collect upon Contracts, in its
own name, if possible, or as agent for the Trust Fund. If the Servicer elects to
commence a legal proceeding to enforce a Contract, the act of commencement shall
be deemed to be an automatic assignment of the Contract to the Servicer for
purposes of collection only. If, however, in any enforcement suit or legal
proceeding it is held that the Servicer may not enforce a Contract on the ground
that it is not a real party in interest or a holder entitled to enforce the
Contract, the Trustee on behalf of the Certificateholders shall, at the
Servicer's expense, take such steps as the Servicer deems necessary to enforce
the Contract, including bringing suit in its name or the names of the
Certificateholders. If there has been a recovery of attorneys' fees in favor of
the Servicer or the Trust Fund in an action involving the enforcement of a
Contract, the Servicer shall be reimbursed out of such recovery for its
out-of-pocket attorney's fees and expenses incurred in such enforcement action.
(c) The Servicer shall exercise any rights of recourse against third
persons that exist with respect to any Contract in accordance with Section 5.02.
In exercising recourse rights, the Servicer is authorized on the Trustee's
behalf to reassign the Contract or to resell the related Manufactured Home to
the Person against whom recourse exists at the price set forth in the document
creating the recourse.
(d) The Servicer may grant to the Obligor on any Contract any rebate,
refund or adjustment out of the related Certificate Account that is required
because of an overpayment in connection with the prepayment in full of such
Contract or otherwise. The Servicer will not permit any rescission or
cancellation of any Contract.
Section 5.08. Transfer of Certificate Accounts. The Trustee may
transfer either or both Certificate Accounts to a different depository
institution from time to time, so long as such Certificate Account or
Certificate Accounts remain Eligible Accounts. The Trustee shall give notice of
any transfer of either Certificate Account to the Rating Agencies prior to such
transfer.
Section 5.09. Maintenance of Hazard Insurance Policies. (a) Except as
otherwise provided in subsection (b) of this Section 5.09, the Servicer shall
cause to be maintained with respect to each Contract one or more Hazard
Insurance Policies which provide, at a minimum, the same coverage as a standard
form fire and extended coverage insurance policy that is customary for
manufactured housing, issued by a company authorized to issue such policies in
the state in which the Manufactured Home is located, and in an amount which is
not less than the maximum insurable value of such Manufactured Home or the
principal balance due from the Obligor on the related Contract, whichever is
less; provided that such Hazard Insurance Policies may provide for customary
deductible amounts, and provided further that the amount of coverage provided by
each Hazard Insurance Policy shall be sufficient to avoid the application of any
co-insurance clause contained therein. If a Manufactured Home is located within
a federally designated special flood hazard area, the Servicer shall also cause
such flood insurance to be maintained, which coverage shall be at least equal to
the minimum amount specified in the preceding sentence or such lesser amount as
may be available under the federal flood insurance program. Each Hazard
Insurance Policy caused to be maintained by the Servicer shall contain a
standard loss payee clause in favor of the Servicer and its successors and
assigns. If any Obligor is in default in the payment of premiums on its Hazard
Insurance Policy or Policies, the Servicer shall pay such premiums out of its
own funds, and may add separately such premium to the Obligor's obligation as
provided by the Contract, but may not add such premium to the remaining
principal balance of the Contract for purposes of this Agreement. If the Obligor
does not reimburse the Servicer for payment of such premiums and the related
Contract is liquidated after a default, the Servicer shall be reimbursed for its
payment of such premiums out of the related Liquidation Proceeds.
(b) The Servicer may, in lieu of causing individual Hazard Insurance
Policies to be maintained with respect to each Manufactured Home pursuant to
subsection (a) of this Section 5.09, and shall, to the extent that the related
Contract does not require the Obligor to maintain a Hazard Insurance Policy with
respect to the related Manufactured Home, maintain one or more blanket insurance
policies covering losses as provided in subsection (a) of this Section resulting
from the absence or insufficiency of individual Hazard Insurance Policies. Any
such blanket policy shall be substantially in the form that is the industry
standard for blanket insurance policies issued to cover Manufactured Homes and
in the amount sufficient to cover all losses on the Contracts. The Servicer
shall pay, out of its own funds, the premium for such policy on the basis
described therein and shall deposit in the related Certificate Account, on the
Business Day next preceding the Determination Date following the Due Period in
which the insurance proceeds from claims in respect of any Contracts under such
blanket policy are or would have been received, the deductible amount with
respect to such claims. The Servicer shall not, however, be required to deposit
any deductible amount with respect to claims under individual Hazard Insurance
Policies maintained pursuant to subsection (a) of this Section.
(c) If the Servicer shall have repossessed a Manufactured Home on
behalf of the Trustee or foreclosed upon or otherwise acquired any Mortgaged
Property, the Servicer shall either (i) maintain at its expense a Hazard
Insurance Policy with respect to such Manufactured Home or Mortgaged Property
meeting the requirements of subsections (a) or (b), except that the Servicer
shall be responsible for depositing any deductible amount with respect to all
claims under individual Hazard Insurance Policies, or (ii) indemnify the Trust
Fund against any damage to such Manufactured Home prior to resale or other
disposition.
(d) Any cost incurred by the Servicer in maintaining any of the
foregoing insurance, for the purpose of calculating monthly distributions to
Certificateholders, shall not be added to the amount owing under the Contract,
notwithstanding that the terms of the Contract so permit. The Servicer shall not
be entitled to reimbursement from the Company, the Trustee or the
Certificateholders for such costs. Such costs (other than the cost of the
blanket policy) shall only be recovered out of late payments by the Obligor for
such premiums or, if the related Contract is liquidated after a default, out of
the related Liquidation Proceeds.
Section 5.10. Fidelity Bond and Errors and Omissions Insurance. The
Servicer shall maintain, at its own expense, a blanket fidelity bond and an
errors and omissions insurance policy, with broad coverage with responsible
companies acceptable to the Federal National Mortgage Association and the
Federal Home Loan Mortgage Corporation, on all officers, employees or other
persons acting in any capacity with regard to the Contracts to handle funds,
money, documents and papers relating to the Contracts. Any such fidelity bond
and errors and omissions insurance shall protect and insure the Servicer against
losses, including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such persons. No provision of this Section 5.10 requiring such
fidelity bond and errors and omissions insurance shall diminish or relieve the
Servicer from its duties and obligations as set forth in this Agreement. The
minimum coverage under any such bond and insurance policy, shall be in an amount
as is customary for servicers that service a portfolio of manufactured housing
installment sales contracts of $100 million or more and that are generally
acceptable as servicers to institutional investors. Upon request of the Trustee,
the Servicer shall cause to be delivered to the Trustee a certified true copy of
such fidelity bond and insurance policy and a statement from the surety and the
insurer that such fidelity bond or insurance policy shall in no event be
terminated or materially modified without 30 days' prior written notice to the
Trustee.
Section 5.11. Collections under Hazard Insurance Policies; Consent to
Transfers of Manufactured Homes; Assumption Agreements. (a) In connection with
its activities as administrator and servicer of the Contracts, the Servicer
agrees to present, on behalf of itself, the Trustee and Certificateholders,
claims to the insurer under any Hazard Insurance Policies and, in this regard,
to take such reasonable action as shall be necessary to permit recovery under
any Hazard Insurance Policies. Any amounts collected by the Servicer under any
such Hazard Insurance Policies shall be deposited within two Business Days after
receipt in the related Certificate Account pursuant to Section 5.05, except to
the extent they are applied to the restoration of the related Manufactured Home
or released to the related Obligor in accordance with the normal servicing
procedures of the Servicer.
(b) The Servicer shall not withhold its consent to any transfer of
ownership of a Manufactured Home in accordance with the related Contract unless
the proposed transferee does not meet the Servicer's then applicable
underwriting standards (exclusive of down payment requirements). In addition,
the Servicer shall not withhold such consent if such withholding of consent is
not permitted under applicable law and governmental regulations.
(c) In any case in which a Manufactured Home is to be conveyed to a
Person by an Obligor, and such Person is to enter into an assumption agreement
or modification agreement or supplement to the Contract, upon the closing of
such conveyance, the Servicer shall cause the originals of the assumption
agreement, the release (if any), or the modification or supplement to the
Contract to be deposited with the Contract File, the Land-and-Home Contract File
or the Mortgage Loan File, as applicable, for such Contract. Any fee collected
by the Servicer for entering into an assumption or substitution of liability
agreement with respect to such Contract will be retained by the Servicer as
additional servicing compensation. In connection with any such assumption, the
rate of interest borne by, and all other material terms of, the related Contract
shall not be changed.
(d) Notwithstanding any of the foregoing, the Servicer shall not permit
the extension of the maturity date of any Contract beyond the latest-occurring
scheduled maturity date of any Contract as of the Cut-off Date.
Section 5.12. Realization upon Defaulted Contracts. Subject to
applicable law, the Servicer shall repossess, foreclose upon or otherwise
comparably convert the ownership of Manufactured Homes and any related Mortgaged
Property securing all Contracts that come into default and which the Servicer
believes in its good faith business judgment will not be brought current;
provided, however, that notwithstanding anything else in this Agreement to the
contrary, but subject to the requirements of law, the Servicer shall commence
repossession, foreclosure and other realization procedures in respect of any
Contract that is at any one time delinquent as to all or part of five or more
(or ten or more, in the case of Bi-weekly Contracts and Semi-Monthly Contracts)
scheduled payments; provided that if the Servicer has actual knowledge that a
Mortgaged Property is affected by hazardous waste, then the Servicer shall not
cause the Trust Fund to acquire title to such Mortgaged Property in a
foreclosure or similar proceeding. For purposes of the last proviso in the
preceding sentence, the Servicer shall not be deemed to have actual knowledge
that a Mortgaged Property is affected by hazardous waste unless it shall have
received written notice that hazardous waste is present on such property and
such written notice has been made a part of the Servicing File with respect to
the related Contract. Such written notice shall be provided to the Trustee. In
the event that the Trustee is responsible for foreclosing on a Contract, if the
Trustee has actual knowledge that a Mortgaged Property is affected by hazardous
waste, then the Trustee shall not cause the Trust Fund to acquire title to such
Mortgaged Property in a foreclosure or similar proceeding. In connection with
such repossession, foreclosure or other conversion, the Servicer shall follow
such practices and procedures as it shall deem necessary or advisable and as
shall be consistent with Section 5.02. Subject to the foregoing proviso, in the
event that title to any Mortgaged Property is acquired in foreclosure or by deed
in lieu of foreclosure, the deed or certificate of sale shall be issued to the
Trustee, as Trustee, or, at its election, to its nominee on behalf of the
Trustee, as Trustee. The Servicer shall manage, conserve and protect such
Manufactured Homes and any related Mortgaged Property for the purposes of their
prompt disposition and sale, and shall dispose of such Manufactured Homes and
any related Mortgaged Property on such terms and conditions as it deems in the
best interests of the Certificateholders. In connection with such activities,
the Servicer shall follow such practices and procedures as are consistent with
Section 5.02.
Section 5.13. Costs and Expenses. All costs and expenses incurred by
the Servicer in carrying out its duties under this Agreement, including all fees
and expenses incurred in connection with the enforcement of Contracts (including
enforcement of defaulted Contracts and repossessions of Manufactured Homes
securing such Contracts), shall be paid by the Servicer and the Servicer shall
not be entitled to reimbursement hereunder, except to the extent such
reimbursement is specifically provided for in this Agreement. Notwithstanding
the foregoing, the Servicer shall be reimbursed out of the Liquidation Proceeds
of a defaulted Contract for Liquidation Expenses incurred by it in realizing
upon the related Manufactured Home and any related Mortgaged Property,
including, but not limited to: (i) costs of refurbishing and securing such
Manufactured Home; (ii) transportation expenses incurred in moving the
Manufactured Home; (iii) reasonable legal fees and expenses of outside counsel;
(iv) rental expenses (including the payment of rent not paid by the defaulting
Obligor) incurred in maintaining a leasehold interest for the Manufactured Home;
and (v) sales commissions paid to (a) Persons that are not Affiliates of the
Servicer or (b) Affiliates of the Servicer, if such sales commission is no
greater than the sales commission that would be paid to a Person that is not an
Affiliate of the Servicer. The Servicer shall not incur the foregoing
Liquidation Expenses unless it determines in its good faith business judgment
that incurring such expenses will increase the Net Liquidation Proceeds from
such Manufactured Home.
Notwithstanding anything in this Agreement to the contrary, so long as
the Company is the Servicer, the Servicer, in its sole discretion, may, but is
not obligated to, liquidate a defaulted Contract by depositing into the related
Certificate Account, as Liquidation Proceeds, an amount equal to (i) the
outstanding principal balance of such Contract plus accrued and unpaid interest
thereon to the Due Date in the Due Period in which such deposit is made less
(ii) $2,000. The Servicer shall not be reimbursed for any Liquidation Expenses
incurred in connection with such Contract and shall retain any liquidation
proceeds thereafter collected in liquidating such Contract.
Section 5.14. Trustee to Cooperate. Upon payment in full of any
Contract, the Servicer will notify the Trustee on the next Determination Date by
a certificate of a Servicing Officer (which certification shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the related
Certificate Account pursuant to Section 5.05 have been deposited). The Servicer
is authorized to execute an instrument in satisfaction of such Contract and any
related Mortgage and do such other acts and execute such other documents as the
Servicer deems necessary to discharge the Obligor thereunder and eliminate the
security interest in the Manufactured Home and any related Mortgaged Property
related thereto. The Servicer shall determine when a Contract has been paid in
full; to the extent insufficient payments are received on a Contract mistakenly
determined by the Servicer to be prepaid or paid in full and satisfied, the
shortfall shall be paid by the Servicer out of its own funds by deposit into the
related Certificate Account. Upon request of a Servicing Officer, the Trustee
shall, at the expense of the Servicer, perform such other acts as are reasonably
requested by the Servicer (including, without limitation, the execution of
documents) and otherwise cooperate with the Servicer in enforcement of rights
and remedies with respect to Contracts, and the Trustee shall not be liable or
responsible for the execution of any documents or performance of any acts
requested by the Servicer pursuant to this Section.
Section 5.15. Servicing and Other Compensation. The Servicer, as
compensation for its activities hereunder including, without limitation, the
payment of fees and expenses of the Trustee pursuant to Section 10.05, shall be
entitled to receive on each Remittance Date the Group I Monthly Servicing Fee
and the Group II Monthly Servicing Fee pursuant to, and to the extent provided
in, Section 6.02. In addition, the Servicer may obtain any additional
compensation permitted pursuant to this Agreement.
Additional servicing compensation in the form of Late Payment Fees or
Extension Fees and any transfer of equity or assumption fees shall be retained
by the Servicer.
The Servicer shall not be reimbursed for its costs and expenses in
servicing the Contracts except as provided pursuant to Sections 5.06, 5.09 and
5.13.
Section 5.16. Custody of Contracts. (a) Subject to the terms and
conditions of this Section and Section 3.04(a), the Servicer shall maintain
custody of the Contract Files as custodian for the benefit of the
Certificateholders and the Trustee. The Trustee, or a custodian appointed by or
on behalf of the Trustee, shall maintain custody of the Land-and-Home Contract
Files and the Mortgage Loan Files.
(b) The Servicer agrees to maintain the related Contract Files at its
offices where they are presently maintained, or at such other offices of the
Servicer in the State of Tennessee as shall from time to time be identified to
the Trustee by ten days' prior written notice. The Servicer may temporarily move
individual Contract Files or any portion thereof without notice as necessary to
conduct collection and other servicing activities in accordance with its
customary practices and procedures.
(c) As custodian, the Servicer shall have and perform the following
powers and duties:
(i) hold the Contract Files on behalf of the Certificateholders and
the Trustee, maintain accurate records pertaining to each Contract to
enable it to comply with the terms and conditions of this Agreement,
maintain a current inventory thereof;
(ii) implement policies and procedures in writing and signed by a
Servicing Officer, with respect to persons authorized to have access to the
Contract Files on the Servicer's premises and the receipting for Contract
Files taken from their storage area by an employee of the Servicer for
purposes of servicing or any other purposes; and
(iii) attend to all details in connection with maintaining custody of
the Contract Files on behalf of the Certificateholders and the Trustee.
(d) In performing its duties under this Section, the Servicer agrees to
act with reasonable care, using that degree of skill and care that it exercises
with respect to similar contracts owned and/or serviced by it, but in no event
using a degree of skill and care that is lower than that used generally in the
servicing industry for such contracts. The Servicer shall promptly report to the
Trustee any failure by it to hold the Contract Files as herein provided and
shall promptly take appropriate action to remedy any such failure. In acting as
custodian of the Contract Files, the Servicer agrees further not to assert any
beneficial ownership interests in the Contracts or the Contract Files. The
Servicer agrees to indemnify the Certificateholders and the Trustee for any and
all liabilities, obligations, losses, damages, payments, costs or expenses of
any kind whatsoever which may be imposed on, incurred or asserted against the
Certificateholders or the Trustee as the result of any act or omission by the
Servicer relating to the maintenance and custody of the Contract Files;
provided, however, that the Servicer will not be liable to the
Certificateholders for any portion of any such amount resulting from the
negligence or willful misconduct of any Certificateholder or the Trustee and
will not be liable to the Trustee for any portion of such amount resulting from
the negligence or willful misconduct of the Trustee. The agreement of the
Servicer to indemnify the Trustee shall survive the resignation or removal of
the Trustee and the termination of this Agreement.
Section 5.17. REMIC Compliance. The parties intend that the Trust Fund
formed hereunder shall constitute, and that the affairs of the Trust Fund shall
be conducted so as to qualify it as, a "real estate mortgage investment conduit"
as defined in and in accordance with the REMIC Provisions. In furtherance of
such intention, the Servicer shall, to the extent permitted by applicable law,
act as agent, and is hereby appointed to act as agent, of the Trust Fund and
shall on behalf of the Trust Fund: (a) prepare, file and present to the Trustee
to sign, or cause to be prepared, filed and presented to the Trustee to be
signed, all required federal tax returns for the Trust Fund, including, but not
limited to, Form 1066 using a calendar year as the taxable year for the Trust
Fund when and as required by the REMIC Provisions and other applicable federal
income tax laws; (b) make an election, on behalf of the Trust Fund, to be
treated as a REMIC on the Form 1066 for its first taxable year, in accordance
with the REMIC Provisions; (c) prepare and forward, or cause to be prepared and
forwarded, to the Certificateholders all information reports as and when
required to be provided to them in accordance with the REMIC Provisions; (d)
take such other actions as are necessary or appropriate to maintain the status
of the Trust Fund as a REMIC; and (e) serve as tax matters person for the Trust
Fund pursuant to Treasury Regulations Section 1.860F-4(d) or serve as
attorney-in-fact and agent for any Person that is the tax matters person.
Neither the Trustee nor the Servicer shall take any action or omit to take any
action if such action or omission (as the case may be) would cause the
termination of the REMIC status of the Trust Fund; provided, however, that
neither the Trustee nor the Servicer shall be required to take any action if a
Responsible Officer of the Trustee or the Servicer, as applicable, in good faith
believes such action or omission to be inconsistent with any other provision of
this Agreement. The Company and the Servicer shall cooperate with the Servicer
or its agent for such purpose in supplying any information within their control
that is necessary to enable the Servicer to perform its duties under this
Section. The Holder of the Class R Certificate, by purchasing such Class R
Certificate, (a) shall be deemed to consent to the appointment of the Servicer
as (i) the tax matters person for the Trust Fund and (ii) the attorney-in-fact
and agent for any person that is the tax matters person if the Servicer is
unable to serve as the tax matters person and (b) agrees to execute any
documents required to give effect to clause (a) of this sentence.
The Holder of the Class R Certificate, by purchasing such Class R
Certificate, agrees to give the Servicer written notice that it is a
"pass-through interest holder" within the meaning of Temporary Treasury
Regulations section 1.67-3T(a)(2)(i)(A) immediately upon becoming the Holder of
the Class R Certificate, if it is, or is holding the Class R Certificate on
behalf of, a "pass-through interest holder."
In the event that any tax, including interest, penalties, additional
amounts or additions to tax (a "Tax"), is imposed on the Trust Fund, such tax
shall be charged against amounts otherwise required to be distributed on the
Class R Certificate. The Servicer shall notify the Trustee if any Tax is imposed
on the Trust Fund and the amount of any such Tax. The Trustee is hereby
authorized to retain, or cause the Paying Agent to retain, from amounts
otherwise required to be distributed on the Class R Certificate, sufficient
funds to pay or provide for the payment of, and to actually pay, or cause the
Paying Agent to pay, such Tax as is legally owed by the Trust Fund (but such
authorization shall not prevent the Servicer from contesting any such Tax in
appropriate proceedings, and withholding payment of such Tax, if permitted by
law, pending the outcome of such proceedings). To the extent that sufficient
amounts cannot be so retained to pay or provide for the payment of any tax
imposed on gain realized from any prohibited transaction (as defined in the
REMIC Provisions), the Trustee is hereby authorized to and, upon the receipt of
written notice of the existence of any tax liability, shall segregate, into a
separate non-interest-bearing account, the net income from such prohibited
transactions and pay, or cause the Paying Agent to pay, such Tax. In the event
any (i) amounts initially retained from amounts required to be distributed on
the Class R Certificate and (ii) income so segregated and applied towards the
payment of such Tax shall not be sufficient to pay such Tax in its entirety, the
amount of the shortfall shall be paid from funds in each Certificate Account
after distributions of principal and interest to the related Certificateholders
pursuant to Section 6.01 in respect of the related Remittance Date
notwithstanding anything to the contrary contained herein. To the extent any
such segregated income or funds from one of the Certificate Accounts are paid to
the Internal Revenue Service, the Trustee shall retain, or cause to be retained,
an amount equal to the amount of such income or funds so paid from future
amounts otherwise required to be distributed on the Class R Certificate and
shall deposit such retained amounts in such Certificate Account for distribution
to the Holders of Certificates other than the Class R Certificate.
Except as provided in Section 3.05 and except in connection with REO
Property, the Servicer shall not sell any Contract or any other asset of the
Trust Fund unless either (i) it has received an Opinion of Counsel to the effect
that such sale will not result in the imposition of taxes on "prohibited
transactions" on the Trust Fund as defined in Section 860F of the Code, or (ii)
the proceeds of such sale, net of any related taxes on "prohibited transactions"
on the Trust Fund as defined in Section 860F of the Code, will at least equal
the Repurchase Price of such Contract.
In the event that any Manufactured Home is acquired in a repossession
or foreclosure (an "REO Property"), the Servicer shall sell any REO Property
within two years of its acquisition by the Trust Fund, unless, at the request
and expense of the Servicer, the Servicer seeks, and subsequently receives, an
Opinion of Counsel, addressed to the Trustee and the Servicer, to the effect
that the holding by the Trust Fund of such REO Property subsequent to two years
after its acquisition will not result in the imposition of taxes on "prohibited
transactions" of the Trust Fund as defined in Section 860F of the Code or cause
the Trust Fund to fail to qualify as a REMIC at any time that any Certificates
are outstanding. The Servicer shall manage, conserve, protect and operate each
REO Property solely for the purpose of its prompt disposition and sale in a
manner that does not cause any such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) or result in the
receipt by the REMIC of any "income from non-permitted assets" within the
meaning of Section 860F(a)(2)(B) of the Code or any "net income from foreclosure
property" which is subject to taxation under the REMIC Provisions. Pursuant to
its efforts to sell such REO Property, the Servicer shall either itself or
through an agent selected by the Servicer protect and conserve such REO Property
in the same manner and to such extent as is customary in the locality where such
REO Property is located and may, incident to its conservation and protection of
the interests of the Certificateholders, rent the same, or any part thereof, as
the Servicer deems to be in the best interest of the Servicer and the
Certificateholders for the period prior to the sale of such REO Property.
The Servicer shall segregate and hold all funds collected and received
in connection with the operation of any REO Property separate and apart from its
own funds and general assets and shall establish and maintain with respect to
each REO Property an account held in trust for the Trustee for the benefit of
the Certificateholders (each, an "REO Account"), which shall be an Eligible
Account. The Servicer shall be entitled to retain or withdraw any interest
income paid on funds deposited in each REO Account by the depository.
The Servicer shall deposit, or cause to be deposited, within two
Business Days after receipt on a daily basis in each REO Account all revenues
received with respect to the related REO Property and shall withdraw therefrom
funds necessary for the proper operation, management and maintenance of the REO
Property. On or before each Determination Date, the Servicer shall withdraw from
each REO Account and deliver to the Trustee for deposit into the related
Certificate Account the income from the REO Property on deposit in the REO
Account, net of its reasonable fees and expenses.
The disposition of REO Property shall be carried out by the Servicer at
such price and upon such terms and conditions as the Servicer shall deem
necessary or advisable, as shall be normal and usual in its general servicing
activities.
The proceeds from the REO disposition, net of any reimbursement to the
Servicer as provided above, shall be deposited in the REO Account and shall be
deposited in the related Certificate Account when the related Contract becomes a
Liquidated Contract.
Section 5.18. Establishment of and Deposits in Distribution Accounts.
On or before the Closing Date, the Trustee shall have established, and
thereafter shall maintain, with respect to each Certificate Group, a
Distribution Account which is an Eligible Account, in the form of one or more
separate custodial accounts, titled (i) in the case of the Group I Certificates,
"Manufactured Housing Contract Senior/Subordinate Pass-Through Certificates,
Series 1999D (Vanderbilt Mortgage and Finance, Inc., Seller), Group I, in trust
for the Trustee" and (ii) in the case of the Group II Certificates,
"Manufactured Housing Contract Senior/Subordinate Pass-Through Certificates,
Series 1999D (Vanderbilt Mortgage and Finance, Inc., Seller), Group II, in trust
for the Trustee". The moneys in the Distribution Accounts shall not be invested.
One Business Day prior to each Remittance Date, the Trustee shall deposit in
each Distribution Account the related Available Distribution Amount.
[End of Article V]
<PAGE>
Article VI
PAYMENTS TO THE CERTIFICATEHOLDERS; WITHDRAWALS
FROM CERTIFICATE ACCOUNTS
Section 6.01. Monthly Payments. (a) On each Remittance Date the Trustee
shall, based upon the information set forth in the Monthly Report for such
Remittance Date, withdraw from each Distribution Account an amount equal to the
related Available Distribution Amount for such Remittance Date and apply such
amount as set forth below:
A. On each Remittance Date on which the Class I M-1 and Class I B
Principal Distribution Test is not met, the Group I Available Distribution
Amount will be distributed in the following amounts in the following order of
priority:
(i) interest accrued during the related Interest Period on the
Class I A-1, Class I A-2, Class I A-3 and Class I A-4
Certificates, at their respective Remittance Rates on the
outstanding Class I A-1, Class I A-2, Class I A-3 and Class I
A-4, Principal Balances, respectively, together with any
previously undistributed shortfalls in interest due on the Class
I A-1, Class I A-2, Class I A-3 and Class I A-4 Certificates,
respectively, in respect of prior Remittance Dates; if the Group
I Available Distribution Amount is not sufficient to distribute
the full amount of interest due on the Class I A-1, Class I A-2,
Class I A-3 and Class I A-4 Certificates, the Group I Available
Distribution Amount will be distributed on such Classes of
Certificates pro rata on the basis of the interest due thereon;
(ii) the Group I Formula Principal Distribution Amount in the
following order of priority:
(a) to the Class I A-1 Certificates until the Class I A-1
Principal Balance is reduced to zero;
(b) to the Class I A-2 Certificates until the Class I
A-2 Principal Balance is reduced to zero;
(c) to the Class I A-3 Certificates until the Class I A-3
Principal Balance is reduced to zero;
(d) to the Class I A-4 Certificates until the Class I A-4
Principal Balance is reduced to zero;
(iii) interest accrued during the related Interest Period at the
Class I A-5 Remittance Rate on the Class I A-5 Principal Balance
to the Class I A-5 Certificates, together with any previously
undistributed shortfalls in interest due on the Class I A-5
Certificates in respect of prior Remittance Dates;
(iv) the remainder of the Group I Formula Principal Distribution
Amount, if any, to the Class I A-5 Certificates until the Class I
A-5 Principal Balance is reduced to zero;
(v) interest accrued during the related Interest Period at the
Class I M-1 Remittance Rate on the Class I M-1 Principal Balance
to the Class I M-1 Certificates, together with any previously
undistributed shortfalls in interest due on the Class I M-1
Certificates in respect of prior Remittance Dates;
(vi) the remainder of the Group I Formula Principal Distribution
Amount, if any, to the Class I M-1 Certificates until the Class I
M-1 Principal Balance is reduced to zero;
(vii) interest accrued during the related Interest Period at the
Class I B-1 Remittance Rate on the Class I B-1 Principal Balance
to the Class I B-1 Certificates, together with any previously
undistributed shortfalls in interest due on the Class I B-1
Certificates in respect of prior Remittance Dates;
(viii) the remainder of the Group I Formula Principal
Distribution Amount, if any, to the Class I B-1 Certificates
until the Class I B-1 Principal Balance is reduced to zero;
(ix) interest accrued during the related Interest Period at the
Class I B-2 Remittance Rate on the Class I B-2 Principal Balance
to the Class I B-2 Certificates, together with any previously
undistributed shortfalls in interest due on the Class I B-2
Certificates in respect of prior Remittance Dates;
(x) the remainder of the Group I Formula Principal Distribution
Amount, if any, to the Class I B-2 Certificates until the Class I
B-2 Principal Balance is reduced to zero;
(xi) any Group I Monthly Excess Spread, to fund any Group II
Available Funds Shortfall;
(xii) any remaining Group I Monthly Excess Spread, to fund any
unfunded Accelerated Principal Payment on the Group II
Certificates after giving effect to the distribution specified in
clause C(xi) or clause D(xi) of this Section 6.01(a);
(xiii) any remaining Group I Monthly Excess Spread, to pay the
Servicer the amount of any Group I Monthly Servicing Fee, if the
Company is the Servicer;
(xiv) any remaining Group I Monthly Excess Spread, to pay CHI the
Guarantee Reimbursement Amount, if any, with respect to the Class
I B-2 Certificates;
(xv) any remaining Group I Monthly Excess Spread, to pay that
portion of the Group II Monthly Servicing Fee, if any, that
remains unpaid after giving effect to the distribution described
in clause C(xiv) or D(xiv), as applicable, below, to the
Servicer, if the Company is the Servicer;
(xvi) any remaining Group I Monthly Excess Spread, to pay CHI
that portion of the Guarantee Reimbursement Amount, if any, with
respect to the Class II B-4 Certificates that remains unpaid
after giving effect to the distribution described in clause C(xv)
or D(xv), as applicable, below; and
(xvii) any remaining Group I Monthly Excess Spread, to the holder
of the Class R Certificate;
B. On each Remittance Date on which the Class I M-1 and Class I B
Principal Distribution Test is met, the Group I Available Distribution Amount
will be distributed in the following amounts in the following order of priority:
(i) interest accrued during the related Interest Period on the
Class I A-1, Class I A-2, Class I A-3 and Class I A-4
Certificates, at their respective Remittance Rates on the
outstanding Class I A-1, Class I A-2, Class I A-3 and Class I A-4
Principal Balances, respectively, together with any previously
undistributed shortfalls in interest due on the Class I A-1,
Class I A-2, Class I A-3 and Class I A-4 Certificates,
respectively, in respect of prior Remittance Dates; if the Group
I Available Distribution Amount is not sufficient to distribute
the full amount of interest due on the Class I A-1, Class I A-2,
Class I A-3 and Class I A-4 Certificates, the Group I Available
Distribution Amount will be distributed on such Classes of
Certificates pro rata on the basis of the interest due thereon;
(ii) the Class I A Percentage of the Group I Formula Principal
Distribution Amount in the following order of priority:
(a) to the Class I A-1 Certificates until the Class I A-1
Principal Balance is reduced to zero;
(b) to the Class I A-2 Certificates until the Class I A-2
Principal Balance is reduced to zero;
(c) to the Class I A-3 Certificates until the Class I A-3
Principal Balance is reduced to zero; and
(d) to the Class I A-4 Certificates until the Class I A-4
Principal Balance is reduced to zero;
(iii) interest accrued during the related Interest Period at the
Class I A-5 Remittance Rate on the Class I A-5 Principal Balance
to the Class I A-5 Certificates, together with any previously
undistributed shortfalls in interest due on the Class I A-5
Certificates in respect of prior Remittance Dates;
(iv) the remainder of the Class I A Percentage of the Group I
Formula Principal Distribution Amount, if any, to the Class I A-5
Certificates until the Class I A-5 Principal Balance is reduced
to zero;
(v) interest accrued during the related Interest Period at the
Class I M-1 Remittance Rate on the Class I M-1 Principal Balance
to the Class I M-1 Certificates, together with any previously
undistributed shortfalls in interest due on the Class I M-1
Certificates in respect of prior Remittance Dates;
(vi) the Class I M-1 Percentage of the Group I Formula Principal
Distribution Amount, if any, to the Class I M-1 Certificates
until the Class I M-1 Principal Balance is reduced to zero;
(vii) interest accrued during the related Interest Period at the
Class I B-1 Remittance Rate on the Class I B-1 Principal Balance
to the Class I B-1 Certificates, together with any previously
undistributed shortfalls in interest due on the Class I B-1
Certificates in respect of prior Remittance Dates;
(viii) the Class I B Percentage of the Group I Formula Principal
Distribution Amount to the Class I B-1 Certificates until the
Class I B-1 Principal Balance is reduced to zero;
(ix) interest accrued during the related Interest Period at the
Class I B-2 Remittance Rate on the Class I B-2 Principal Balance
to the Class I B-2 Certificates, together with any previously
undistributed shortfalls in interest due on the Class I B-2
Certificates in respect of prior Remittance Dates;
(x) the remainder of the Group I Formula Principal Distribution
Amount to the Class I B-2 Certificates until the Class I B-2
Principal Balance is reduced to zero; PROVIDED, HOWEVER, if the
Class I A and Class I M Principal Balances have not been reduced
to zero on or before a Remittance Date, to the extent that
allocations in respect of principal to the Class I B-2
Certificates would reduce the Class I B-2 Principal Balance below
the Class I B-2 Floor Amount, then the amount of such excess
principal will instead by distributed, pro rata, to the Class I A
Certificates and the Class I M Certificates based on the Class I
A Principal Balance and the Class I M-1 Principal Balance prior
to distributions pursuant to clauses B(ii), (iv) and (vi) above
with respect to such Remittance Date. The allocations in respect
of such excess principal to the Class I A Certificates will be in
the order of priority set forth in clauses (B)(ii) and (iv)
above;
(xi) any Group I Monthly Excess Spread, to fund any Group II
Available Funds Shortfall;
(xii) any remaining Group I Monthly Excess Spread, to fund any
unfunded Accelerated Principal Payment on the Group II
Certificates after giving effect to the distribution specified in
clause C(xi) or clause D(xi) of this Section 6.01(a);
(xiii) any remaining Group I Monthly Excess Spread, to pay the
Servicer the amount of any Group I Monthly Servicing Fee, if the
Company is the Servicer;
(xiv) any remaining Group I Monthly Excess Spread, to pay CHI the
Guarantee Reimbursement Amount, if any, with respect to the Class
I B-2 Certificates;
(xv) any remaining Group I Monthly Excess Spread, to pay that
portion of the Group II Monthly Servicing Fee, if any, that
remains unpaid after giving effect to the distribution described
in clause C(xiv) or D(xiv), as applicable, below, to the
Servicer, if the Company is the Servicer;
(xvi) any remaining Group I Monthly Excess Spread, to pay CHI
that portion of the Guarantee Reimbursement Amount, if any, with
respect to the Class II B-4 Certificates that remains unpaid
after giving effect to the distribution described in clause C(xv)
or D(xv), as applicable, below; and
(xvii) any remaining Group I Monthly Excess Spread, to the holder
of the Class R Certificate;
C. On each Remittance Date on which the Class II B Principal
Distribution Test is not met, the Group II Available Distribution Amount will
be distributed in the following amounts in the following order of priority:
(i) interest accrued during the related Interest Period at the
Class II A-1 Remittance Rate on the Class II A-1 Principal
Balance to the Class II A-1 Certificates, together with any
previously undistributed shortfalls in interest due on the Class
II A-1 Certificates in respect of prior Remittance Dates;
(ii) the Group II Formula Principal Distribution Amount to the
Class II A-1 Certificates, net of any portion of the
Overcollateralization Reduction Amount, if any, then applicable
to such Certificates, until the Class II A-1 Principal Balance is
reduced to zero;
(iii) interest accrued during the related Interest Period at the
Class II B-1 Remittance Rate on the Class II B-1 Principal
Balance to the Class II B-1 Certificates, together with any
previously undistributed shortfalls in interest due on the Class
II B-1 Certificates in respect of prior Remittance Dates;
(iv) the remainder of the Group II Formula Principal Distribution
Amount to the Class II B-1 Certificates, net of any portion of
the Overcollateralization Reduction Amount, if any, then
applicable to such Certificates, until the Class II B-1 Principal
Balance is reduced to zero;
(v) interest accrued during the related Interest Period at the
Class II B-2 Remittance Rate on the Class II B-2 Principal
Balance to the Class II B-2 Certificates, together with any
previously undistributed shortfalls in interest due on the Class
II B-2 Certificates in respect of prior Remittance Dates;
(vi) the remainder of the Group II Formula Principal Distribution
Amount, if any, to the Class II B-2 Certificates, net of any
portion of the Overcollateralization Reduction Amount, if any,
then applicable to such Certificates, until the Class II B-2
Principal Balance is reduced to zero;
(vii) interest accrued during the related Interest Period at the
Class II B-3 Remittance Rate on the Class II B-3 Principal
Balance to the Class II B-3 Certificates, together with any
previously undistributed shortfalls in interest due on the Class
II B-3 Certificates in respect of prior Remittance Dates;
(viii) the remainder of the Group II Formula Principal
Distribution Amount, if any, to the Class II B-3 Certificates,
net of any portion of the Overcollateralization Reduction Amount,
if any, then applicable to such Certificates, until the Class II
B-3 Principal Balance is reduced to zero;
(ix) interest accrued during the related Interest Period at the
Class II B-4 Remittance Rate on the Class II B-4 Principal
Balance to the Class II B-4 Certificates, together with any
previously undistributed shortfalls in interest due on the Class
II B-4 Certificates in respect of prior Remittance Dates;
(x) the remainder of the Group II Formula Principal Distribution
Amount, if any, to the Class II B-4 Certificates, net of any
portion of the Overcollateralization Reduction Amount, if any,
then applicable to such Certificates, until the Class II B-4
Principal Balance is reduced to zero;
(xi) any Group II Monthly Excess Spread, to fund any Accelerated
Principal Payment on the Group II Certificates;
(xii) any remaining Group II Monthly Excess Spread, together with
any Overcollateralization Reduction Amount, to fund any Group I
Available Funds Shortfall;
(xiii) any remaining Group II Monthly Excess Spread, together
with any remaining Overcollateralization Reduction Amount, up to
the Class II A-1 Net Funds Cap Carryover Amount, Class II B-1 Net
Funds Cap Carryover Amount, Class II B-2 Net Funds Cap Carryover
Amount, Class II B-3 Net Funds Cap Carryover and Class II B-4 Net
Funds Cap Carryover Amount to the applicable Classes of
Certificates; if such remaining amounts are not sufficient to
distribute the Aggregate Net Funds Cap Carryover Amount to the
applicable Classes of Certificates, such remaining amounts will
be distributed on such Classes of Certificates pro rata based on
the amount of the Net Funds Cap Carryover Amount owed to each
such Class of Certificates;
(xiv) any remaining Group II Monthly Excess Spread, together with
any remaining Overcollateralization Reduction Amount, to pay the
Servicer the amount of any Group II Monthly Servicing Fee, if the
Company is the Servicer;
(xv) any remaining Group II Monthly Excess Spread, together with
any remaining Overcollateralization Reduction Amount, to pay CHI
the Guarantee Reimbursement Amount, if any, with respect to the
Class II B-4 Certificates;
(xvi) any remaining Group II Monthly Excess Spread, together with
any remaining Overcollateralization Reduction Amount, to pay that
portion of the Group I Monthly Servicing Fee, if any, that
remains unpaid after giving effect to the distribution described
in clause A(xiii) or B(xiii), as applicable, above, to the
Servicer, if the Company is the Servicer;
(xvii) any remaining Group II Monthly Excess Spread, together
with any remaining Overcollateralization Reduction Amount, to pay
CHI that portion of the Guarantee Reimbursement Amount, if any,
with respect to the Class I B-2 Certificates that remains unpaid
after giving effect to the distribution described in clause
A(xiv) or B(xiv), as applicable, above; and
(xviii) any remaining Group II Monthly Excess Spread, together
with any remaining Overcollateralization Reduction Amount, to the
holder of the Class R Certificate.
D. On each Remittance Date on which the Class II B Principal
Distribution Test is met, the Group II Available Distribution Amount will be
distributed in the following amounts in the following order of priority:
(i) interest accrued during the related Interest Period at the
Class II A-1 Remittance Rate on the Class II A-1 Principal
Balance to the Class II A-1 Certificates, together with any
previously undistributed shortfalls in interest due on the Class
II A-1 Certificates in respect of prior Remittance Dates;
(ii) the Class II A Percentage of the Group II Formula Principal
Distribution Amount to the Class II A-1 Certificates, net of any
portion of the Overcollateralization Reduction Amount, if any,
then applicable to such Certificates, until the Class II A-1
Principal Balance is reduced to zero;
(iii) interest accrued during the related Interest Period at the
Class II B-1 Remittance Rate on the Class II B-1 Principal
Balance to the Class II B-1 Certificates, together with any
previously undistributed shortfalls in interest due on the Class
II B-1 Certificates in respect of prior Remittance Dates;
(iv) the Class II B Percentage of the Group II Formula Principal
Distribution Amount to the Class II B-1 Certificates, net of any
portion of the Overcollateralization Reduction Amount, if any,
then applicable to such Certificates, until the Class II B-1
Principal Balance is reduced to zero;
(v) interest accrued during the related Interest Period at the
Class II B-2 Remittance Rate on the Class II B-2 Principal
Balance to the Class II B-2 Certificates, together with any
previously undistributed shortfalls in interest due on the Class
II B-2 Certificates in respect of prior Remittance Dates;
(vi) the remainder of the Class II B Percentage of the Group II
Formula Principal Distribution Amount, if any, to the Class II
B-2 Certificates, net of any portion of the Overcollateralization
Reduction Amount, if any, then applicable to such Certificates,
until the Class II B-2 Principal Balance is reduced to zero;
(vii) interest accrued during the related Interest Period at the
Class II B-3 Remittance Rate on the Class II B-3 Principal
Balance to the Class II B-3 Certificates, together with any
previously undistributed shortfalls in interest due on the Class
II B-3 Certificates in respect of prior Remittance Dates;
(viii) the remainder of the Class II B Percentage of the Group II
Formula Principal Distribution Amount, if any, to the Class II
B-3 Certificates, net of any portion of the Overcollateralization
Reduction Amount, if any, then applicable to such Certificates,
until the Class II B-3 Principal Balance is reduced to zero;
(ix) interest accrued during the related Interest Period at the
Class II B-4 Remittance Rate on the Class II B-4 Principal
Balance to the Class II B-4 Certificates, together with any
previously undistributed shortfalls in interest due on the Class
II B-4 Certificates in respect of prior Remittance Dates;
(x) subject to the proviso below, the remainder of the Group II
Formula Principal Distribution Amount, if any, to the Class II
B-4 Certificates, net of any portion of the Overcollateralization
Reduction Amount, if any, then applicable to such Certificates,
until the Class II B-4 Principal Balance is reduced to zero;
PROVIDED, HOWEVER, if the Class II A-1 Principal Balance has not
been reduced to zero on or before a Remittance Date, to the
extent that allocations in respect of principal to the Class II
B-4 Certificates would reduce the sum of the Class II B-4
Principal Balance and the Overcollateralization Amount below the
Group II Certificate Floor Amount, then the amount of such excess
principal will instead be distributed to the Class II A-1
Certificates;
(xi) any Group II Monthly Excess Spread, to fund any Accelerated
Principal Payment on the Group II Certificates;
(xii) any remaining Group II Monthly Excess Spread, together with
any Overcollateralization Reduction Amount, to fund any Group I
Available Funds Shortfall;
(xiii) any remaining Group II Monthly Excess Spread, together
with any remaining Overcollateralization Reduction Amount, up to
the Class II A-1 Net Funds Cap Carryover Amount, Class II B-1 Net
Funds Cap Carryover Amount, Class II B-2 Net Funds Cap Carryover
Amount, Class II B-3 Net Funds Cap Carryover Amount and the Class
B-4 Net Funds Cap Carryover Amount to the applicable Classes of
Certificates; if such remaining amounts are not sufficient to
distribute the Aggregate Net Funds Cap Carryover Amount to the
applicable Classes of Certificates, such remaining amounts will
be distributed on such Classes of Certificates pro rata based on
the amount of the Net Funds Cap Carryover Amount owed to each
such Class of Certificates;
(xiv) any remaining Group II Monthly Excess Spread, together with
any remaining Overcollateralization Reduction Amount, to pay the
Servicer the amount of any Group II Monthly Servicing Fee, if the
Company is the Servicer;
(xv) any remaining Group II Monthly Excess Spread, together with
any remaining Overcollateralization Reduction Amount, to pay CHI
the Guarantee Reimbursement Amount, if any, with respect to the
Class II B-4 Certificates;
(xvi) any remaining Group II Monthly Excess Spread, together with
any remaining Overcollateralization Reduction Amount, to pay that
portion of the Group I Monthly Servicing Fee, if any, that
remains unpaid after giving effect to the distribution described
in clause A(xiii) or B(xiii), as applicable, above, to the
Servicer, if the Company is the Servicer;
(xvii) any remaining Group II Monthly Excess Spread, together
with any remaining Overcollateralization Reduction Amount, to pay
CHI that portion of the Guarantee Reimbursement Amount, if any,
with respect to the Class I B-2 Certificates that remains unpaid
after giving effect to the distribution described in clause
A(xiv) or B(xiv), as applicable, above; and
(xviii) any remaining Group II Monthly Excess Spread, together
with any remaining Overcollateralization Reduction Amount, to the
holder of the Class R Certificate;
provided that, notwithstanding the prioritization of the distribution of the
Group I Formula Principal Distribution Amount among the Class I A-1, Class I
A-2, Class I A-3 and Class I A-4 Certificates pursuant to clauses A(ii) and
B(ii) above, on each Remittance Date on and after the Remittance Date, if any,
on which a Deficiency Event occurs, the Group I Available Distribution Amount
remaining after making the distributions of interest on the Class I A-1, Class I
A-2, Class I A-3 and Class I A-4 Certificates required by clauses A(i) and B(i)
above will be applied to distribute the Group I Formula Principal Distribution
Amount on each Class of Class I A-1, Class I A-2, Class I A-3 and Class I A-4
Certificates pro rata in accordance with the outstanding Principal Balance of
each such Class of Certificates; provided, further, that (I) the aggregate
amounts distributed on the Class I A-1 Certificates, Class I A-2 Certificates,
Class I A-3 Certificates, Class I A-4 Certificates, Class I A-5 Certificates,
Class I M-1 Certificates, Class I B-1 Certificates and Class I B-2 Certificates
on account of principal shall not exceed the Original Class I A-1 Principal
Balance, the Original Class I A-2 Principal Balance, the Original Class I A-3
Principal Balance, the Original Class I A-4 Principal Balance, the Original
Class I A-5 Principal Balance, the Original Class I M-1 Principal Balance, the
Original Class I B-1 Principal Balance and the Original Class I B-2 Principal
Balance, respectively, and (II) the aggregate amounts distributed on the Class
II A-1 Certificates, Class II B-1 Certificates, Class II B-2 Certificates, Class
II B-3 Certificates and Class II B-4 Certificates on account of principal shall
not exceed the Original Class II A-1 Principal Balance, the Original Class II
B-1 Principal Balance, the Original Class II B-2 Principal Balance, the Original
Class II B-3 Principal Balance and the Original Class II B-4 Principal Balance,
respectively.
The distributions on the Group I Certificates on each Remittance Date
shall be made such that the Trustee shall distribute (x) to the holder of each
Class I A Certificate as of the preceding Record Date an amount equal to the
product of (1) the aggregate Percentage Interest evidenced by such Class I A
Certificate and (2) as applicable, the Class I A-1 Distribution Amount, Class I
A-2 Distribution Amount, Class I A-3 Distribution Amount, Class I A-4
Distribution Amount, Class I A-5 Distribution Amount for such Remittance Date,
(y) to the holder of each Class I M-1 Certificate as of the preceding Record
Date an amount equal to the product of (1) the aggregate Percentage Interest
evidenced by such Class I M-1 Certificates and (2) the Class I M-1 Distribution
Amount for such Remittance Date, and (z) to the holder of each Class I B
Certificate as of the preceding Record Date an amount equal to the product of
(1) the aggregate Percentage Interest evidenced by such Class I B Certificates
and (2) as applicable, the Class I B-1 Distribution Amount or Class I B-2
Distribution Amount for such Remittance Date.
The distributions to the Group II Certificates on each Remittance Date
shall be made such that the Trustee shall distribute (x) to the holder of each
Class II A-1 Certificate as of the preceding Record Date an amount equal to the
product of (1) the aggregate Percentage Interest evidenced by such Class II A-1
Certificate and (2) the Class II A-1 Distribution Amount for such Remittance
Date, and (y) to the holder of each Class II B Certificate as of the preceding
Record Date an amount equal to the product of (1) the aggregate Percentage
Interest evidenced by such Certificateholder's Class II B Certificates and (2)
as applicable, the Class II B-1 Distribution Amount, Class II B-2 Distribution
Amount, Class II B-3 Distribution Amount or Class II B-4 Distribution Amount for
such Remittance Date. Any Accelerated Principal Payments distributable on a
given Remittance Date pursuant to clauses A(xii), B(xii), C(xi) or D(xi), as
applicable, of Section 6.01(a) shall be distributed to the holders of the Class
of Group II Certificates then entitled to receive distributions in respect of
principal on such date. The payment of any amounts made pursuant to clause A(xi)
or B(xi), as applicable, of Section 6.01(a) to fund any Group II Available Funds
Shortfall shall be applied as provided in clauses C(i) through C(x), in that
order, or D(i) through D(x), in that order, as applicable, of Section 6.01(a).
The payment of any amounts made pursuant to clause C(xii) or D(xii), as
applicable, of Section 6.01(a) to fund any Group I Available Funds Shortfall
shall be applied as provided in clauses A(i) through A(x), in that order, or
B(i) through B(x), in that order, as applicable, of Section 6.01(a).
The Trustee shall pay each Certificateholder of record by check mailed
to such Certificateholder at the address for such Certificateholder appearing on
the Certificate Register; provided that if such Certificateholder holds
Certificates with original denominations aggregating at least $5 million and has
given the Trustee appropriate written instructions at least 5 Business Days
prior to the related Record Date (which instructions, until revised, shall
remain operative for all Remittance Dates thereafter), the Trustee shall pay
such Certificateholder by wire transfer of funds. If on any Determination Date
the Servicer determines that there are no Contracts outstanding and no other
funds or assets in the Trust Fund other than the funds in the Certificate
Accounts, the Servicer promptly shall instruct the Trustee to send the final
distribution notice to each Certificateholder and make provision for the final
distribution in accordance with Section 11.01(b). Final payment of any
Certificate shall be made only upon presentation of such Certificate at the
office or agency of the Certificate Registrar.
(b) On each Remittance Date, the Trustee shall, based upon the
information set forth in the Monthly Report for such Remittance Date, withdraw
from each Distribution Account (solely out of the related Available Distribution
Amount for such Remittance Date after giving effect to the distributions made on
the Group I and Group II Certificates pursuant to Section 6.01(a) on such
Remittance Date) and distribute to the Holder of the Class R Certificate the
Class R Distribution Amount for such Remittance Date. Such distribution shall be
made by a means that is mutually acceptable to the Trustee and the Holder of the
Class R Certificate.
(c) 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 Group I and Group II Certificates. None of the Trustee, the Certificate
Registrar, the Company and the Servicer shall have any responsibility therefor
except as otherwise provided by applicable law.
(d) On each Remittance Date the Trustee shall withdraw from each
Certificate Account an amount equal to the related Guarantee Payment for such
Remittance Date received by it from CHI pursuant to Section 6.05 and distribute
such amount to (i) in the case of a Group I Guarantee Payment, the Class I B-2
Certificateholders and (ii) in the case of a Group II Guarantee Payment, the
Class II B-4 Certificateholders.
Section 6.02. Permitted Withdrawals from the Certificate Accounts. The
Servicer may, and in the case of clause (vii) below shall, from time to time as
provided herein, make or cause withdrawals from each Certificate Account of
amounts deposited therein pursuant to Section 5.05 that are attributable to
Contracts of the related Group for the following purposes:
(i) to pay to the Company with respect to each Contract of such Group
or property acquired in respect thereof that has been purchased or replaced
pursuant to Section 3.05 all amounts received thereon that are specified in
such Section to be property of the Company;
(ii) to reimburse itself for the payment of taxes out of Liquidation
Proceeds relating to a Contract of such Group (to the extent not previously
retained from such Liquidation Proceeds prior to their deposit) or out of
payments expressly made by the related Obligor to reimburse the Servicer
for such taxes, as permitted by Section 5.06;
(iii) if neither the Company nor a wholly owned subsidiary of the
Company is the Servicer, to pay to itself Monthly Servicing Fee relating to
such Group.
(iv) to reimburse itself or a previous Servicer out of Liquidation
Proceeds (to the extent not previously retained from Liquidation Proceeds
prior to their deposit in such Certificate Account) in respect of a
Manufactured Home of such Group and out of payments by the related Obligor
(to the extent of payments expressly made by the Obligor to reimburse the
Servicer for insurance premiums) for expenses incurred by it in respect of
such Manufactured Home that are specified as being reimbursable to it
pursuant to Section 5.07, 5.09 or 5.13 or to a previous Servicer under
Section 8.08;
(v) to reimburse itself for any Nonrecoverable Advance or Monthly
Advances with respect to such Group in accordance with Section 6.04(c) and
for advances in respect of Liquidated Contracts in accordance with Section
6.04(c);
(vi) to reimburse the Servicer for expenses incurred with respect to
such Group and reimbursable to the Servicer pursuant to Section 8.06 (such
reimbursement to be made only from funds that would otherwise be
distributed on the Class R Certificate pursuant to Section 6.01(a)A(xvii)
or 6.01 (a)B(xvii), in the case of Group I, or pursuant to Section
6.01(a)C(xviii) or 6.01 (a)D(xviii), in the case of Group II.
(vii) to withdraw any amount deposited in such Certificate Account
that was not required to be deposited therein (including any collections on
the related Contracts that, pursuant to Section 2.01(a), are not part of
the Trust Fund);
(viii) withdraw all amounts on deposit in such Certificate Account
which are to be deposited in the related Distribution Account in respect of
the related Available Distribution Amount;
(ix) withdraw any amounts necessary to pay any Taxes pursuant to
Section 5.17.
Since, in connection with withdrawals pursuant to clauses (i), (ii) and
(iv), the Servicer's entitlement thereto is limited to collections or other
recoveries on the related Contract, the Servicer shall keep and maintain
separate accounting, on a Contract by Contract basis, for the purpose of
justifying any withdrawal from each Certificate Account pursuant to such
clauses.
The Servicer shall report withdrawals with respect to each Due Period
pursuant to this Section 6.02 in the related Monthly Report.
Section 6.03. [Reserved].
Section 6.04. Monthly Advances by the Servicer. (a) By the close of
business on each Determination Date the Servicer shall deposit in each
Certificate Account, out of its own funds, the related Monthly Advance;
provided, however, that any such deposit out of the Servicer's own funds shall
be made only to the extent necessary to cause the related Available Distribution
Amount to be large enough to permit the distribution on the related Remittance
Date of the amounts computed as set forth in (i) clauses A(i) through (x) or
B(i) through (x), inclusive, as applicable, of Section 6.01(a), in the case of
the Group I Certificates, and (ii) clauses C(i) through (x) and D(i) through
(x), inclusive, as applicable, of Section 6.01(a), in the case of the Group II
Certificates.
(b) On each Remittance Date, the Servicer shall reimburse itself for
the Outstanding Amount Advanced to the extent of actual collections of late
scheduled payments on the related Contracts.
(c) If the Servicer determines that any advance made pursuant to
Section 6.04(a) has become a Nonrecoverable Advance and at the time of such
determination there exists an Outstanding Amount Advanced, then the Servicer
shall reimburse itself out of funds in the related Certificate Account for the
amount of such Nonrecoverable Advance, but only to the extent of such
Outstanding Amount Advanced.
Section 6.05. Limited Guarantee. (a) No later than the third Business
Day prior to each Remittance Date, the Servicer (if other than CHI) shall notify
CHI of the amount of any Guarantee Payment for such Remittance Date. Not later
than the Business Day preceding each Remittance Date, CHI shall deposit any such
Guarantee Payment for such Remittance Date into the related Certificate Account.
(b) The obligations of CHI under this Agreement shall not terminate
upon or otherwise be affected by an Event of Default pursuant to Article IX of
this Agreement.
(c) The obligation of CHI to provide the Limited Guarantee under this
Agreement shall terminate on the Final Remittance Date.
(d) The obligation of CHI to make the Guarantee Payments described in
subsection (a) above shall be unconditional and irrevocable and shall constitute
an unsecured obligation of CHI and will rank on a parity with all other
unsecured and unsubordinated indebtedness of CHI. CHI acknowledges that its
obligation to make the Guarantee Payments described in subsection (a) above
shall be deemed a guarantee by CHI of indebtedness of the Trust Fund for money
borrowed from the Class I B-2 and Class II B-4 Certificateholders, and CHI
acknowledges and agrees that it has no right of reimbursement, indemnity,
exoneration, contribution or other similar right of recovery arising from
amounts expended pursuant to its obligations under this Agreement, other than
the right to receive distributions, to the extent available, from the Trust Fund
as provided in this Agreement. In no event shall the amount paid on the Class I
B-2 Certificates in respect of principal pursuant to the Group I Limited
Guarantee exceed the Original Class I B-2 Principal Balance, and in no event
shall the amount paid on the Class II B-4 Certificates in respect of principal
pursuant to the Group II Limited Guarantee exceed the Original Class II B-4
Principal Balance. In no event shall either Limited Guarantee require CHI to
make payments of the Class II B-4 Net Funds Cap Carryover Amount to the Class II
B-4 Certificateholders.
(e) If CHI fails to make a Guarantee Payment in whole or in part, CHI
shall promptly notify the Trustee, and the Trustee shall promptly notify the
Rating Agencies. CHI shall promptly notify the Rating Agencies in the event of
any termination of the Limited Guarantee or any change of the Person providing
the Limited Guarantee, including but not limited to a change by merger.
Section 6.06. Alternate Credit Enhancement. CHI, at its option and upon
prior written notice to the Rating Agencies, may substitute an alternate form of
credit enhancement in place of the Limited Guarantee, provided that (i) the
Rating Agencies shall notify CHI, the Company, the Servicer and the Trustee in
writing that such alternate form of credit enhancement shall not result in a
reduction in the then current ratings of the Certificates and (ii) CHI shall
cause to be delivered to the Trustee an Opinion of Counsel to the effect that
such substitution of credit enhancement shall not adversely affect the status of
the Trust Fund as a REMIC. Such alternate form of credit enhancement can be in
the form of cash or securities deposited by CHI or any other Person in a
segregated escrow, trust or collateral account or a letter of credit,
certificate insurance policy or surety bond provided by a third party.
Section 6.07. Calculation of the Remittance Rates with respect to the
Floating Rate Certificates. On the second LIBOR Business Day immediately
preceding each Remittance Date, the Trustee shall determine LIBOR for the
Interest Period commencing on such Remittance Date and inform the Servicer (at
the facsimile number given to the Trustee in writing) of such rates. On each
Determination Date, the Servicer shall determine the Class I A-1 Remittance
Rate, Class II A-1 Remittance Rate, the Class II B-1 Remittance Rate, the Class
II B-2 Remittance Rate, the Class II B-3 Remittance Rate and the Class II B-4
Remittance Rate for the related Remittance Date.
[End of Article VI]
<PAGE>
Article VII
REPORTS
Section 7.01. Monthly Reports. Within two Business Days following each
Determination Date, the Servicer shall cause the Trustee to receive, with
respect to each Group of Contracts and each Certificate Group, a report (the
"Monthly Report"), which shall include the following information with respect to
the immediately following Remittance Date:
(I) As to the Group I Contracts and Group I Certificates:
(a) the Class I A-1 Distribution Amount, the Class I A-2
Distribution Amount, the Class I A-3 Distribution Amount, the Class I
A-4 Distribution Amount, the Class I A-5 Distribution Amount the Class
I M-1 Distribution Amount, the Class I B-1 Distribution Amount and the
Class I B-2 Distribution Amount for such Remittance Date;
(b) the amount of principal to be distributed on each Class of
the Class I A-1, Class I A-2, Class I A-3, Class I A-4, Class I A-5,
Class I M-1, Class I B-1 and Class I B-2 Certificates on such
Remittance Date, separately stating the amounts specified in clauses
(a) through (f) of the term "Formula Principal Distribution Amount"
with respect to the Group I Certificates;
(c) the amount of interest to be distributed on each Class of
the Class I A-1, Class I A-2, Class I A-3, Class I A-4, Class I A-5,
Class I M-1, Class I B-1 and Class I B-2 Certificates on such
Remittance Date (separately identifying any Class I A-1 Unpaid Interest
Shortfall, Class I A-2 Unpaid Interest Shortfall, Class I A-3 Unpaid
Interest Shortfall, Class I A-4 Unpaid Interest Shortfall, Class I A-5
Unpaid Interest Shortfall, Class I M-1 Unpaid Interest Shortfall, Class
I B-1 Unpaid Interest Shortfall and Class I B-2 Unpaid Interest
Shortfall included in such distribution) and the Remittance Rate for
each such Class of Certificates for such Remittance Date;
(d) the remaining Class I A-1 Principal Balance, Class I A-2
Principal Balance, Class I A-3 Principal Balance, Class I A-4 Principal
Balance, Class I A-5 Principal Balance, Class I M-1 Principal Balance,
Class I B-1 Principal Balance and Class I B-2 Principal Balance after
giving effect to the payment of principal to be made on such Remittance
Date (on which interest will be calculated on the next succeeding
Remittance Date);
(e) the total amount of fees payable on such Remittance Date
with respect to the Group I Contracts, separately identifying the Group
I Monthly Servicing Fee, any related reimbursement to the Company
pursuant to Section 8.06, and any related Late Payment Fees, Extension
Fees and assumption fees paid during the prior Due Period;
(f) the number and aggregate unpaid principal balance of Group
I Contracts with payments delinquent 31 to 59, 60 to 89, and 90 or more
days, respectively;
(g) the number of Group I Contracts that were repurchased by
the Company in accordance with Section 3.05 during the prior Due
Period, identifying such Contracts and the Repurchase Price of such
Contracts;
(h) the Pool Factor for the Class I A-1, Class I A-2, Class I
A-3, Class I A-4, Class I A-5, Class I M-1, Class I B-1 and Class I B-2
Certificates after giving effect to the payment of principal to be made
on such Remittance Date;
(i) the Class R Distribution Amount, if any, for such
Remittance Date, separately stating any Repossession Profits;
(j) the aggregate principal balances of all Group I Contracts
that are not Liquidated Contracts and in respect of which the related
Manufactured Homes have been repossessed or foreclosed upon;
(k) the Group I Aggregate Net Liquidation Losses through
the Due Period immediately preceding such Remittance Date;
(l) the amount, if any, by which the Class I B-2 Formula
Distribution Amount exceeds the Group I Remaining Amount Available for
such Remittance Date;
(m) the Class I B-4 Principal Liquidation Loss Amount, if any,
for such Remittance Date;
(n) the Guarantee Payment with respect to the Group I
Certificates, if any, for such Remittance Date;
(o) the amount of any related unadvanced shortfalls for the
prior Due Period;
(p) the number and dollar amount of Group I units repossessed
during the prior Due Period;
(q) the amount of any Principal Prepayments paid with respect
to Group I Contracts during the prior Due Period;
(r) the amount of any Scheduled Principal Payments to be made
with respect to Group I Contracts on such Remittance Date; and
(s) the weighted average annual percentage rate of interest
for the Contracts remaining in the Group I Contract Pool on such
Remittance Date;
(II) As to the Group II Contracts and Group II Certificates:
(a) the Class II A-1 Distribution Amount, the Class II B-1
Distribution Amount, the Class II B-2 Distribution Amount, the Class II
B-3 Distribution Amount and the Class II B-4 Distribution Amount for
such Remittance Date;
(b) the amount of principal to be distributed on each Class of
the Class II A-1, Class II B-1, Class II B-2, Class II B-3 and Class II
B-4 Certificates on such Remittance Date, separately stating the
amounts specified in clauses (a) through (f) of the term "Formula
Principal Distribution Amount" with respect to the Group II
Certificates;
(c) the amount of interest to be distributed on each Class of
the Class II A-1, Class II B-1, Class II B-2, Class II B-3 and Class II
B-4 Certificates holders on such Remittance Date (separately
identifying any Class II A-1 Unpaid Interest Shortfall, Class II B-1
Unpaid Interest Shortfall, Class II B-2 Unpaid Interest Shortfall,
Class II B-3 Unpaid Interest Shortfall and Class II B-4 Unpaid Interest
Shortfall included in such distribution) and the Remittance Rate for
each such Class of Certificates for such Remittance Date;
(d) the remaining Class II A-1 Principal Balance, Class II B-1
Principal Balance, Class II B-2 Principal Balance, Class II B-3
Principal Balance and Class II B-4 Principal Balance after giving
effect to the payment of principal to be made on such Remittance Date
(on which interest will be calculated on the next succeeding Remittance
Date);
(e) the total amount of fees payable on such Remittance Date
with respect to the Group II Contracts, separately identifying the
Group II Monthly Servicing Fee, any related reimbursement to the
Company pursuant to Section 8.06, and any related Late Payment Fees,
Extension Fees and assumption fees paid during the prior Due Period;
(f) the number and aggregate unpaid principal balance of Group
II Contracts with payments delinquent 31 to 59, 60 to 89, and 90 or
more days, respectively;
(g) the number of Group II Contracts that were repurchased by
the Company in accordance with Section 3.05 during the prior Due
Period, identifying such Contracts and the Repurchase Price of such
Contracts;
(h) the Pool Factor for the Class II A-1, Class II B-1, Class
II B-2, Class II B-3 and Class II B-4 Certificates after giving effect
to the payment of principal to be made on such Remittance Date;
(i) the Class R Distribution Amount, if any, for such
Remittance Date, separately stating any Repossession Profits;
(j) the aggregate principal balances of all Group II Contracts
that are not Liquidated Contracts and in respect of which the related
Manufactured Homes have been repossessed or foreclosed upon;
(k) the Group II Aggregate Net Liquidation Losses through
the Due Period immediately preceding such Remittance Date;
(l) the amount, if any, by which the Class II B-4 Formula
Distribution Amount exceeds the Group II Remaining Amount Available for
such Remittance Date;
(m) the Class II B-4 Principal Liquidation Loss Amount, if
any, for such Remittance Date;
(n) the Guarantee Payment with respect to the Group II
Certificates, if any, for such Remittance Date;
(o) the amount of any related unadvanced shortfalls for the
prior Due Period;
(p) the number and dollar amount of Group II units
repossessed during the prior Due Period;
(q) the amount of any Principal Prepayments paid with respect
to Group II Contracts during the prior Due Period;
(r) the amount of any Scheduled Principal Payments to be made
with respect to Group II Contracts on such Remittance Date;
(s) the weighted average annual percentage rate of interest
for the Contracts remaining in the Group II Contract Pool on such
Remittance Date;
(t) the amount, if any, of any Accelerated Principal Payment
for such Remittance Date;
(u) the Overcollateralization Amount in respect of such
Remittance Date;
(v) the Required Overcollateralization Amount for such
Remittance Date;
(w) the amount, if any, of any Overcollateralization
Reduction Amount on such Remittance Date;
(x) the amount, if any, of any outstanding Class II A-1 Net
Funds Cap Carryover Amount, Class II B-1 Net Funds Cap Carryover
Amount, Class II B-2 Net Funds Cap Carryover Amount, Class II B-3 Net
Funds Cap Carryover Amount and Class II B-4 Net Funds Cap Carryover
Amount; and
(y) a summary of withdrawals from the Certificate Account
pursuant to Section 6.02 of this Agreement.
The Trustee shall send copies of all Monthly Reports to the Rating
Agencies. The Trustee shall have no duty to recalculate or verify the
information provided to it by the Servicer.
Section 7.02. Certificate of Servicing Officer. Each Monthly Report
pursuant to Section 7.01 shall be accompanied by a certificate of a Servicing
Officer substantially in the form of Exhibit G, certifying the accuracy of the
Monthly Report and that no Event of Default or event that with notice or lapse
of time or both would become an Event of Default has occurred, or if such event
has occurred and is continuing, specifying the event and its status.
Section 7.03. Other Data. In addition, the Servicer on request of the
Trustee shall furnish the Trustee such underlying data as may reasonably be
requested.
Section 7.04. Annual Statement as to Compliance. The Servicer will
deliver to the Company, the Trustee and the Rating Agencies on or before the
first day of the fifth month following the end of the Servicer's fiscal year,
initially November 1, 2000, an Officer's Certificate stating, as to each signer
thereof, that (i) a review of the activities of the Servicer during such
preceding fiscal year and of performance under this Agreement has been made
under such officer's supervision and (ii) to the best of such officer's
knowledge, based on such review, the Servicer has fulfilled all its obligations
under this Agreement throughout such year, or, if there has been a default in
the fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof. The Servicer shall notify the
Trustee in the event of a change in the Servicer's fiscal year.
Section 7.05. Annual Independent Public Accountants' Servicing Report.
On or before November 1 of each year, beginning with November 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
furnish a statement to the Company, the Trustee and the Rating Agencies to the
effect that such firm has examined certain documents and records relating to the
servicing of the Contracts under this Agreement and, at the option of the
Servicer, manufactured housing installment sale contracts under pooling and
servicing agreements substantially similar to this Agreement with regard to
servicing procedures (such statement to have attached thereto a schedule setting
forth the pooling and servicing agreements covered thereby, including this
Agreement) and that, on the basis of such examination conducted substantially in
compliance with this Agreement or such agreements, as the case may be, and
generally accepted auditing standards, such servicing has been conducted in
compliance with this Agreement or such pooling and servicing agreements, as the
case may be, except for (i) such exceptions as such firm believes to be
immaterial and (ii) such other exceptions that, in the opinion of such firm,
generally accepted auditing standards require it to report. For purposes of such
statement, such firm may assume conclusively that all pooling and servicing
agreements among the Company, the Servicer and the Trustee relating to
certificates evidencing an interest in manufactured housing contracts are
substantially similar to one another except for any such pooling and servicing
agreement which by its terms specifically states otherwise.
Section 7.06. Statements to Certificateholders. (a) Concurrently with
each distribution to Certificateholders pursuant to Article VI, the Trustee
shall mail, or cause the Paying Agent to mail, to the Certificateholders of each
Group, at the addresses appearing on the Certificate Register, a statement as of
the related Remittance Date prepared by the Servicer setting forth, with respect
to each Group:
(I) As to the Group I Contracts and Group I Certificates:
(1) the Class I A-1 Distribution Amount, the Class I A-2
Distribution Amount, the Class I A-3 Distribution Amount, the
Class I A-4 Distribution Amount, the Class I A-5 Distribution
Amount, the Class I M-1 Distribution Amount, the Class I B-1
Distribution Amount, the Class I B-2 Distribution Amount and the
Class R Distribution Amount for such Remittance Date;
(2) the amount of principal to be distributed on each Class
of the Class I A-1, Class I A-2, Class I A-3, Class I A-4, Class
I A-5, Class I M-1, Class I B-1 and Class I B-2 Certificates on
such Remittance Date, separately stating the amounts specified in
clauses (a) through (f) of the term "Formula Principal
Distribution Amount" with respect to the Group I Certificates;
(3) the amount of interest to be distributed on each Class
of the Class I A-1, Class I A-2, Class I A-3, Class I A-4, Class
I A-5, Class I M-1, Class I B-1 and Class I B-2 Certificates on
such Remittance Date (separately identifying any Class I A-1
Unpaid Interest Shortfall, Class I A-2 Unpaid Interest Shortfall,
Class I A-3 Unpaid Interest Shortfall, Class I A-4 Unpaid
Interest Shortfall, Class I A-5 Unpaid Interest Shortfall, Class
I M-1 Unpaid Interest Shortfall, Class I B-1 Unpaid Interest
Shortfall or Class I B-2 Unpaid Interest Shortfall included in
such distribution) and the related Remittance Rate for each such
Class for such Remittance Date;
(4) the remaining Class I A-1 Principal Balance, Class I A-2
Principal Balance, Class I A-3 Principal Balance, Class I A-4
Principal Balance, Class I A-5 Principal Balance, Class I M-1
Principal Balance, Class I B-1 Principal Balance and Class I B-2
Principal Balance after giving effect to the payment of principal
to be made on such Remittance Date (on which interest will be
calculated on the next succeeding Remittance Date);
(5) the number and aggregate unpaid principal amount of
Group I Contracts that are delinquent 31 to 59 days, 60 to 89
days, and 90 or more days, respectively;
(6) the total amount of fees payable out of the Trust Fund
for such Due Period with respect to the Group I Contracts;
(7) the Pool Factor for each Class of Group I Certificates
after giving effect to the distribution on such Remittance Date;
(8) such other customary factual information available to
the Servicer as the Servicer deems necessary and can obtain
reasonably from its existing data base to enable Group I
Certificateholders to prepare their tax returns;
(9) the amount, if any, by which the Class I B-2 Formula
Distribution Amount exceeds the Group I Remaining Amount
Available for such Remittance Date;
(10) the Class I B-2 Principal Liquidation Loss Amount, if
any, for such Remittance Date;
(11) the Group I Guarantee Payment, if any, for such
Remittance Date; and
(II) As to the Group II Contracts and Group II Certificates:
(1) the Class II A-1 Distribution Amount, the Class II B-1
Distribution Amount, the Class II B-2 Distribution Amount, the
Class II B-3 Distribution Amount, the Class II B-4 Distribution
Amount and the Class R Distribution Amount for such Remittance
Date;
(2) the amount of principal to be distributed on each Class
of the Class II A-1, Class II B-1, Class II B-2, Class II B-3 and
Class II B-4 Certificates on such Remittance Date, separately
stating the amounts specified in clauses (a) through (f) of the
term "Formula Principal Distribution Amount" with respect to the
Group II Certificates;
(3) the amount of interest to be distributed on each Class
of the Class II A-1, Class II B-1, Class II B-2, Class II B-3 and
Class II B-4 Certificates on such Remittance Date (separately
identifying any Class II A-1 Unpaid Interest Shortfall, Class II
B-1 Unpaid Interest Shortfall, Class II B-2 Unpaid Interest
Shortfall, Class II B-3 Unpaid Interest Shortfall or Class II B-4
Unpaid Interest Shortfall included in such distribution) and the
related Remittance Rate for each such Class for such Remittance
Date;
(4) the remaining Class II A-1 Principal Balance, Class II
B-1 Principal Balance, Class II B-2 Principal Balance, Class II
B-3 Principal Balance and Class II B-4 Principal Balance after
giving effect to the payment of principal to be made on such
Remittance Date (on which interest will be calculated on the next
succeeding Remittance Date);
(5) the number and aggregate unpaid principal amount of
Group II Contracts that are delinquent 31 to 59 days, 60 to 89
days, and 90 or more days, respectively;
(6) the total amount of fees payable out of the Trust Fund
for such Due Period with respect to the Group II Contracts;
(7) the Pool Factor for each Class of Group II Certificates
after giving effect to the distribution on such Remittance Date;
(8) such other customary factual information available to
the Servicer as the Servicer deems necessary and can obtain
reasonably from its existing data base to enable Group II
Certificateholders to prepare their tax returns;
(9) the amount, if any, by which the Class II B-4 Formula
Distribution Amount exceeds the Group II Remaining Amount
Available for such Remittance Date;
(10) the Class II B-4 Principal Liquidation Loss Amount, if
any, for such Remittance Date;
(11) the Group II Guarantee Payment, if any, for such
Remittance Date;
(12) the amount, if any, of any Accelerated Principal
Payment for such Remittance Date;
(13) the Overcollateralization Amount in respect of such
Remittance Date;
(14) the Required Overcollateralization Amount for such
Remittance Date;
(15) the amount, if any, of any Overcollateralization
Reduction on such Remittance Date; and
(16) the amount, if any, of any outstanding Class II A-1 Net
Funds Cap Carryover Amount, Class II B-1 Net Funds Cap Carryover
Amount, Class II B-2 Net Funds Cap Carryover Amount, Class II B-3
Net Funds Cap Carryover Amount and Class II B-4 Net Funds Cap
Carryover Amount.
In the case of information furnished pursuant to clauses (I)(1) through
(I)(4) and (II)(1) through (II)(4) above, the amounts shall be expressed as a
dollar amount per Certificate with a $1,000 denomination.
Within a reasonable period of time after the end of each calendar year,
subject to the next sentence, but in no event later than 90 days after the end
of such year, the Servicer shall prepare and furnish to the Trustee, and the
Trustee, promptly upon receipt, shall furnish to each Person who at any time
during the calendar year was the Holder of a Certificate, a statement containing
the information set forth in clauses (2) and (3) above, in the case of Class I B
and Class II B Certificateholders, aggregated for such calendar year or
applicable portion thereof during which such Person was a Certificateholder.
Such obligation of the Servicer shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Servicer pursuant to any requirements of the Code as from time to time in force.
On each Remittance Date, if the Servicer is not the Holder of the Class
R Certificate, the Servicer shall forward or cause to be forwarded by mail to
the Holder of the Class R Certificate a copy of the report forwarded to the
Holders of Certificates on such Remittance Date. If the Servicer is not the
Holder of the Class R Certificate, the Servicer shall also forward or cause to
be forwarded by mail to the Holder of the Class R Certificate a statement
setting forth the amount of the distribution to the Holder of the Class R
Certificate, together with such other information as the Servicer deems
necessary or appropriate.
Within a reasonable period of time after the end of each calendar year,
the Servicer shall furnish or cause to be furnished to each Person who at any
time during the calendar year was the holder of the Residual Interest 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 the Class R Certificate. Such
obligation of the Servicer shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Servicer
pursuant to any requirements of the Code as from time to time enforced.
A Certificateholder holding Certificates of a Class representing in the
aggregate at least 5% of the Percentage Interest of such Class shall, upon
written request to the Trustee, be entitled to receive copies of all reports
provided to the Trustee.
The Servicer shall send copies of all reports provided to the Trustee
for the Certificateholders to each of the Underwriters.
[End of Article VII]
<PAGE>
Article VIII
INDEMNITIES; THE COMPANY AND THE SERVICER
Section 8.01. Liabilities to Obligors. No liability to any Obligor
under any of the Contracts arising out of any act or omission to act of the
Servicer in servicing the Contracts prior to the Closing Date is intended to be
assumed by the Trustee or the Certificateholders under or as a result of this
Agreement and the transactions contemplated hereby and, to the maximum extent
permitted and valid under mandatory provisions of law, the Trustee and the
Certificateholders expressly disclaim such assumption.
Section 8.02. Tax Indemnification. The Company agrees to pay, and to
indemnify, defend and hold harmless the Trust or any separate trustee, the
Trustee, the Certificate Registrar, each Paying Agent and the Certificateholders
from any taxes and related penalties which may at any time be asserted with
respect to, and as of the date of, the transfer of the Contracts from the
Company to the Trust or any separate trustee, including, without limitation, any
sales, gross receipts, general corporation, personal property, privilege or
license taxes (but not including any income or franchise taxes or federal, state
or other taxes arising out of the creation of the Trust Fund and the issuance of
the Certificates or distributions with respect thereto) or tax due under Tenn.
Code Ann. section 67-4-409(b) or any successor provision and, in each such case,
costs, expenses and reasonable counsel fees in defending against the same. The
Servicer shall promptly notify the Trustee and the Rating Agencies, and the
Trustee shall promptly notify the Rating Agencies, in the event that either such
party becomes aware of the assertion of a claim or imposition of a lien by the
Tennessee Department of Revenue arising out of any characterization by such
Department of the transfer of the Contracts to the Trustee or any separate
trustee as a secured financing rather than a sale for purposes of the Tennessee
indebtedness tax.
Section 8.03. Servicer's Indemnities. The Servicer shall defend and
indemnify the Trust Fund, the Trustee, the Certificate Registrar, each Paying
Agent, the Company and the Certificateholders against any and all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel and expenses of litigation, arising from third party claims
or actions in respect of any action taken or failed to be taken by the Servicer
or a prior owner of Acquired Contracts or servicer on behalf of such owner with
respect to any Contract or Manufactured Home and any failure by the Servicer to
perform its obligations in compliance with the standard of care set forth in
this Agreement. This indemnity shall survive any Event of Default (but a
Servicer's obligations under this Section 8.03 shall not relate to any actions
of any subsequent Servicer after an Event of Default) and any payment of the
amount owing under, or any repurchase by the Company of, any such Contract.
Section 8.04. Operation of Indemnities. Indemnification under this
Article shall include, without limitation, reasonable fees and expenses of
counsel and expenses of litigation. If the Company 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 Trustee will repay such
amounts collected to the Company or the Servicer, as the case may be, together
with any interest collected thereon, but reduced by interest on amounts paid by
the Trustee through the date of reimbursement. The indemnities under this
Article shall survive the termination of this Agreement and any resignation or
removal of the Trustee.
Section 8.05. Merger or Consolidation of the Company or the Servicer.
The Company and the Servicer will each keep in full effect its existence, rights
and franchises as a corporation or association, as the case may be, and will
obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the Certificates or
any of the Contracts and to perform its duties under this Agreement.
Any Person into which the Company or the Servicer may be merged or
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Company or the Servicer shall be a party, or any
Person succeeding to the business of the Company or the Servicer, shall be the
successor of the Company or the Servicer hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or surviving Person to the Servicer shall satisfy the requirements of
Section 8.08 with respect to the qualifications of a successor to the Servicer.
Each of the Company and the Servicer shall promptly notify the Trustee and the
Rating Agencies of any such merger to which it is a party.
Section 8.06. Limitation on Liability of the Servicer and Others.
Neither the Servicer nor any of the directors, officers, employees or agents of
the Servicer shall be under any liability to the Trustee or the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Servicer or any
such person against any liability that would otherwise be imposed by reason of
the failure to perform its obligations in strict compliance with the standard of
care set forth in this Agreement. The Servicer and any director, officer,
employee or agent of the Servicer may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. The Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action which arises under this
Agreement and which in its opinion may involve it in any expenses or liability;
provided, however, that the Servicer may in its discretion undertake any such
action which it may deem necessary or desirable in respect to this Agreement and
the rights and duties of the parties hereto. In such event, the legal expenses
and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities payable from the related Certificate Account and
the Servicer shall be entitled to be reimbursed therefor out of such Certificate
Account as provided by Section 6.02; provided that such reimbursement shall be
made, from time to time on one or more Remittance Dates, only out of the related
Available Distribution Amount for such Remittance Date that remains after the
distributions on both the Group I Certificates and the Group II Certificates for
such Remittance Date have been made.
Section 8.07. Assignment by Servicer. The Servicer may, with the prior
written consent of the Company, assign its rights and delegate its duties and
obligations under this Agreement; provided that the Person accepting such
assignment or delegation shall be a Person which is satisfactory to the Trustee,
in its sole judgment, and executes and delivers to the Company and the Trustee
an agreement, in form and substance reasonably satisfactory to the Company and
the Trustee, which contains an assumption by such Person of the due and punctual
performance and observance of each covenant and condition to be performed or
observed by the Servicer under this Agreement; provided further that the Rating
Agencys' rating of the Group I or Group II Certificates in effect immediately
prior to such assignment and delegation will not be withdrawn or reduced as a
result of such assignment and delegation, as evidenced by a letter from the
Rating Agencies. In the case of any such assignment and delegation, the Servicer
shall be released from its obligations under this Agreement, except that the
Servicer shall remain liable for all liabilities and obligations incurred by it
as Servicer hereunder prior to the satisfaction of the conditions to such
assignment and delegation set forth in the next preceding sentence.
Section 8.08. Successor to the Servicer. In connection with the
termination of the Servicer's responsibilities and duties under this Agreement
pursuant to Section 9.01, the Trustee shall (i) succeed to and assume all of the
Servicer's responsibilities, rights, duties and obligations under this Agreement
(except the duty to pay and indemnify the Trustee pursuant to Section 10.05
hereof, which duty shall remain the obligation of the initial Servicer), or (ii)
appoint a successor acceptable to the Company, which shall have a net worth of
not less than $10,000,000 and shall have serviced for at least one year prior to
such appointment a portfolio of not less than $100,000,000 principal amount of
manufactured housing installment sale contracts or installment loans and which
shall succeed to all rights and assume all of the responsibilities, duties and
liabilities of the Servicer under this Agreement prior to the termination of the
Servicer's responsibilities, duties and liabilities under this Agreement (except
that the duty to pay and indemnify the Trustee pursuant to Section 10.05 hereof
shall be subject to negotiation at the time of such appointment). If the Trustee
has become the successor to the Servicer in accordance with this Section, the
Trustee may, if it shall be unwilling to continue to so act, or shall, if it is
unable to so act, appoint or petition a court of competent jurisdiction to
appoint, a successor satisfying the requirements set out in clause (ii) above.
In connection with any appointment of a successor Servicer, the Trustee may make
such arrangements for the compensation of such successor out of payments on
Contracts as it and such successor shall agree or such court shall determine;
provided, however, that with respect to either Group of Contracts, no such
compensation shall be in excess of a monthly amount equal to 1/12 of the product
of 1.25% and the Pool Scheduled Principal Balance for such Group for the
Remittance Date in respect of which such compensation is being paid without the
consent of all of the Certificateholders and notice to the Rating Agencies. If
the Servicer's duties, responsibilities and liabilities under this Agreement
should be terminated pursuant to Sections 8.07 or 9.01, the Servicer shall
discharge such duties and responsibilities during the period from the date it
acquires knowledge of such termination until the effective date thereof with the
same degree of diligence and prudence which it is obligated to exercise under
this Agreement, shall cooperate with the Trustee and any successor Servicer in
effecting the termination of the Servicer's responsibilities and rights
hereunder, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The assignment by a Servicer
pursuant to Section 8.07 or removal of Servicer pursuant to Section 9.01 shall
not become effective until a successor shall be appointed pursuant to this
Section and shall in no event relieve the Company of liability pursuant to
Section 3.05 for breach of the representations and warranties made pursuant to
Section 3.02 or 3.03.
Any successor appointed as provided herein shall execute, acknowledge
and deliver to the Servicer and to the Trustee an instrument accepting such
appointment, whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and liabilities of the
Servicer, with like effect as if originally named as a party to this Agreement
and the Certificates. Any assignment by or termination of the Servicer pursuant
to Section 8.07 or 9.01 or the termination of this Agreement pursuant to Section
11.01 shall not affect any claims that the Trustee may have against the Servicer
arising prior to any such termination or resignation.
The Servicer shall, at its expense, timely deliver or shall cause
delivery to the successor the funds in both Certificate Accounts and all
Contract Files and related documents and statements held by it hereunder and the
Servicer shall account for all funds and shall execute and deliver such
instruments and do such other things as reasonably may be required to more fully
and definitely vest and confirm in the successor all such rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer. Without
limitation, the Trustee is authorized and empowered to execute and deliver on
behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments (including, without limitation, transfer instruments in
respect of certificates of title and financing statements relating to the
Manufactured Homes), and to do any and all acts or things necessary or
appropriate to effect the purposes of such notice of termination.
Upon a successor's acceptance of appointment as such, the Trustee shall
notify in writing the Certificateholders of such appointment.
[End of Article VIII]
<PAGE>
Article IX
DEFAULT
Section 9.01. Events of Default. In case one or more of the following
Events of Default shall occur and be continuing:
(a) any failure by the Servicer to make any deposit or payment,
or to remit to the Trustee any payment, required to be made under the
terms of this Agreement which continues unremedied for a period of
five days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the
Servicer by the Trustee or the Company (which shall also give such
notice to the Trustee) or to the Servicer, the Trustee and the Company
by the Holders of Certificates evidencing not less than 25% of the
Trust Fund; or
(b) failure on the part of the Servicer duly to observe or
perform in any material respect any other of the covenants or
agreements on the part of the Servicer set forth in this Agreement
which continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Trustee or the
Company (which shall also give such notice to the Trustee), or to the
Servicer, the Trustee and the Company by the Holders of Certificates
evidencing not less than 25% of the Trust Fund; or
(c) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law or appointing a conservator or receiver or liquidator in
any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the
Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(d) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of or relating to the Servicer or of or relating to all or
substantially all of the Servicer's property; or
(e) the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage
of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations or take any corporate action in furtherance
of the foregoing;
then, and in each and every such case, so long as such Event of Default shall
not have been remedied, the Trustee may, and at the written direction of the
Holders of the Certificates evidencing not less than 25% of the Trust Fund, by
notice in writing to the Servicer shall, terminate all the rights and
obligations of the Servicer under this Agreement and in and to the Contracts and
the proceeds thereof. The Trustee shall send a copy of any such notice to the
Rating Agencies. On or after the receipt by the Servicer of such written notice,
all authority and power of the Servicer under this Agreement, whether with
respect to the Contracts or otherwise, shall pass to and be vested in the
successor appointed pursuant to Section 8.08. Upon the occurrence of an Event of
Default which shall not have been remedied, the Trustee may also pursue whatever
rights it may have at law or in equity to damages, including injunctive relief
and specific performance. The Trustee will have no obligation to take any action
or institute, conduct or defend any litigation under this Agreement at the
request, order or direction of any of the Holders of Certificates unless such
Certificateholders have offered to the Trustee reasonable security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities which
the Trustee may incur.
Section 9.02. Waiver of Defaults. The Trustee may waive any default by
the Servicer in the performance of its obligations hereunder and its
consequences, except that a default in the making of any required remittance to
the Trustee for distribution on any of the Certificates may be waived only by
the affected Certificateholders. Upon any such waiver of a past default, such
default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived.
Section 9.03. Trustee to Act; Appointment of Successor. On and after
the time the Servicer receives a notice of termination pursuant to Section 9.01,
the Trustee or its appointed agent shall be the successor in all respects to the
Servicer as provided in Section 8.08 hereof.
Section 9.04. Notification to Certificateholders. (a) Upon any such
termination pursuant to Section 9.01, the Trustee shall give prompt written
notice thereof to Certificateholders at their respective addresses appearing in
the Certificate Register and to the Rating Agencies.
(b) Within 60 days after the occurrence of any Event of Default known
to a Responsible Officer of the Trustee, the Trustee shall transmit by mail to
all Holders of Certificates, notice of each such Event of Default hereunder
known to the Trustee, unless such Event of Default shall have been cured or
waived.
Section 9.05. Effect of Transfer. (a) After a transfer of servicing
duties to a successor Servicer pursuant to Section 8.05, 8.07, 8.08 or 9.01, the
Trustee or new Servicer may notify Obligors to make payments that are due under
the Contracts after the effective date of the transfer of servicing duties
directly to the new Servicer.
(b) After the transfer of servicing duties to a successor Servicer
pursuant to Section 8.05, 8.07, 8.08 or 9.01, the replaced Servicer shall have
no further obligations with respect to the management, administration, servicing
or collection of the Contracts, but in the case of a transfer pursuant to
Section 8.08 or 9.01 shall remain liable for any liability of the Servicer
hereunder and shall remain entitled to any compensation due the Servicer that
had already accrued prior to such transfer.
(c) A transfer of servicing duties to a successor Servicer shall not
affect the rights and duties of the parties hereunder (including but not limited
to the indemnities of the Servicer pursuant to Article VIII) other than those
relating to the management, administration, servicing or collection of the
Contracts.
Section 9.06. Transfer of the Accounts. Notwithstanding the provisions
of Section 9.01, if either Certificate Account shall be maintained with the
Servicer or an Affiliate of the Servicer and an Event of Default shall occur and
be continuing, the Servicer, after five days' written notice from the Trustee,
or in any event within ten days after the occurrence of the Event of Default,
shall establish a new account or accounts, which shall be Eligible Accounts,
conforming with the requirements of this Agreement at the trust department of
the Trustee or with a depository institution other than the Servicer or an
Affiliate of the Servicer and promptly transfer all funds in such Certificate
Account to such new Certificate Account, which shall thereafter be deemed the
Certificate Account for the related Group for the purposes hereof.
[End of Article IX]
<PAGE>
Article X
CONCERNING THE TRUSTEE
Section 10.01. Duties of Trustee. The Trustee, prior to the occurrence
of an Event of Default and after the curing of all Events of Default which may
have occurred, undertakes to perform such duties and only such duties as are set
forth specifically in this Agreement. In case an Event of Default of which a
Responsible Officer of the Trustee shall have actual knowledge has occurred
(which has not been cured or waived), the Trustee shall exercise such of the
rights and powers vested in it by this Agreement and use the same degree of care
and skill in their exercise as a prudent 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 required specifically to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).
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 willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee shall have actual knowledge, and
after the curing or waiver of all such Events of Default which may
have occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement
against the Trustee and, in the absence of bad faith on the part of
the Trustee, the Trustee may rely conclusively, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee and, if
specifically required to be furnished pursuant to any provision of
this Agreement, conforming to the requirements of this Agreement;
(ii) The Trustee shall not be liable personally for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable personally with respect to
any action taken, suffered or omitted to be taken by it in good faith
in accordance with the direction of Holders of Certificates evidencing
not less than 25% of the Trust Fund as to the time, method and place
of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under
this Agreement.
None of the provisions contained in this Agreement shall require the
Trustee to perform, or be responsible for the manner of performance of, any of
the obligations of the Servicer under this Agreement, except during such time,
if any, as the Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Servicer in accordance with the terms of
this Agreement.
Section 10.02. Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 10.01:
(a) The Trustee may conclusively rely upon and shall be protected
in acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in accordance
with such Opinion of Counsel;
(c) The Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the Certificateholders
pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to it against the costs, expenses
and liabilities which may be incurred therein or thereby; nothing
contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default (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;
(d) The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of
any of its duties hereunder or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it;
(e) The Trustee shall not be liable personally for any action
taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(f) Prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge hereunder and
after the curing or waiver of all Events of Default 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 the Holders of Certificates evidencing Fractional
Interests aggregating not less than 25%; provided, however, that if
the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of
this Agreement, the Trustee may require reasonable indemnity
satisfactory to it against such expense or liability as a condition to
such proceeding. The reasonable expense of every such examination
shall be paid by the Servicer, if an Event of Default shall have
occurred and is continuing, and otherwise by the Certificateholders
requesting the investigation;
(g) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through
agents (including appointing a custodian to maintain custody of the
Land-and-Home Contract Files and the Mortgage Loan Files) or attorneys
and the Trustee shall not be liable or responsible for the misconduct
or negligence of any such agent or attorney appointed with due care;
provided, however, that any Affiliate of the Company may only perform
ministerial or custodial duties hereunder as agent for the Trustee. In
no event shall the Trustee be liable for the acts or omissions of the
custodian appointed pursuant to the Custodial Agreement. No trustee
hereunder shall be personally liable by reason of any act or omission
of any other trustee hereunder;
(h) The right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of any such act;
(i) The Trustee shall not be deemed to have notice of any breach,
default, or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a breach or default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Certificates or this Agreement; and
(j) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee
in each of its capacities hereunder.
Section 10.03. Trustee Not Liable for Certificates or Contracts. The
recitals contained herein and in the Certificates (other than the
countersignature of the Certificates) shall be taken as the statements of the
Company or the Servicer, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations or
warranties as to the validity or sufficiency of this Agreement, of the
Certificates (except that the Certificates shall be duly and validly
countersigned by it), of any Contract or related document or the conveyance of
the Contracts and any related Mortgages or documents. The Trustee shall not be
accountable for the use or application by the Company of any of the Certificates
or of the proceeds of such Certificates, or for the use or application of any
funds paid to the Company or the Servicer in respect of the Contracts or
deposited in or withdrawn from the Certificate Accounts by the Company or the
Servicer. The Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder (unless the Trustee shall have become the successor Servicer) or to
prepare or file any Securities and Exchange Commission filing for the trust
created hereby or to record this Agreement.
The Certificates are executed by the Trustee, not in its individual
capacity but solely as Trustee of the Trust created by this Agreement, in the
exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Trustee on behalf of the Trust in the Certificates is made and intended not as a
personal undertaking or agreement by the Trustee but is made and intended for
the purpose of binding only the Trust.
Section 10.04. Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of
Certificates, and may deal with the Company, CHI and the Servicer in banking
transactions, with the same rights it would have if it were not Trustee.
Section 10.05. Servicer to Pay Fees and Expenses of Trustee. The
Servicer covenants and agrees to pay, from its own funds, to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by it
in the execution of the trust hereby created and in the exercise and performance
of any of the powers and duties hereunder of the Trustee. The Servicer will pay
(out of its own funds) or 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 of the provisions of this Agreement
and the reasonable compensation and the expenses and disbursements of its
counsel and of all Persons not regularly in its employ (including any
custodian), and the expenses incurred by the Trustee in connection with the
appointment of an office or agency pursuant to Section 10.11 except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Servicer also covenants and agrees to indemnify (out of its own funds) the
Trustee for, and to hold it harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or administration of this
trust and its duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except any such loss,
liability or expense arising from any negligence or bad faith on the part of the
Trustee. The covenants in this Section 10.05 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 and the
resignation or removal of the Trustee.
Section 10.06. Eligibility Requirements for Trustee. There shall at all
times be a Trustee hereunder which shall be either (a) The Bank of New York or
any other Person into which The Bank of New York is merged or consolidated or to
which substantially all of the properties and assets of The Bank of New York are
transferred as an entirety, and provided, further, that such entity is
authorized to exercise corporate trust powers under the laws of the United
States of America, any state thereof or the District of Columbia and has all
necessary trust powers to perform its obligations hereunder, or (b) a
corporation or banking association organized and doing business under the laws
of the United States of America, any state thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by Federal or state authority and with a long-term debt rating of at
least Baa3 or a short-term debt rating of at least Prime-3. If the corporation
or banking association referred to in clause (b) of the previous sentence
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation or banking
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 10.07. Resignation and Removal of the Trustee. The Trustee at
any time may resign and be discharged from the trusts hereby created by giving
written notice thereof to the Company, the Servicer and the Rating Agencies.
Upon receiving such notice of resignation, the Company promptly shall appoint a
successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 10.06 and shall fail to resign after written
request therefor by the Company, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Company may
remove the Trustee and appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee.
The Holders of Certificates evidencing more than 50% of the Trust Fund
may remove the Trustee at any time and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Certificateholders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Company, one complete set to the Trustee so removed
and one complete set to the successor so appointed.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 10.08.
Section 10.08. Successor Trustee. Any successor trustee appointed as
provided in Section 10.07 shall execute, acknowledge and deliver to the Company
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 shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The predecessor trustee shall execute and deliver such instruments and
do such other things as reasonably may be required for more 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 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 10.06.
Upon acceptance of appointment by a successor trustee as provided in
this Section, the Company shall mail notice of the succession of such trustee
hereunder to all Certificateholders at their addresses as shown in the
Certificate Register, to the Servicer and to the Rating Agencies. If the Company
fails to mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Company.
Section 10.09. Merger or Consolidation of Trustee. Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the business of the Trustee, shall be
the successor of the Trustee hereunder, provided such corporation shall be
eligible under the provisions of Section 10.06, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 10.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for the purpose of (i)
meeting any legal requirements of any jurisdiction in which any part of the
Trust Fund or property securing the same may be located at the time or (ii)
meeting any legal requirements with respect to the holding of the Contracts, the
Servicer and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
10.10, such powers, duties, obligations, rights and trusts as the Servicer and
the Trustee may consider necessary or desirable. If the Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a request
so to do, or in case an Event of Default shall have occurred and be continuing,
the Trustee alone shall 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 10.06 hereunder and no notice to
Certificateholders of the appointment of co-trustee(s) or separate trustee(s)
shall be required under Section 10.08 hereof. The Servicer shall be responsible
for the fees and expenses of any co-trustee or separate trustee appointed
hereunder to the extent and in the manner set forth for the Trustee in Section
10.05.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 10.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed or any regulation applicable to
any of the Contracts (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 Fund or any portion thereof in any
such jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee. The Trustee may at any time accept
the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article X. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may, at any time, appoint the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 10.11. Appointment of Office or Agency. The Trustee will
appoint an office or agency in the City of New York where Certificates may be
surrendered for registration of transfer or exchange. The Trustee initially
designates its offices at 101 Barclay Street - 12E, New York, New York 10286 for
such purposes. The Certificate Register may be kept in an electronic form
capable of printing out a hard copy of the Certificate Register. The Trustee
will maintain an office at the address stated in Section 12.10 hereof where
notices and demands to or upon the Trustee in respect of the Certificates may be
served. The Trustee will give prompt written notice to Certificateholders of any
change in the location of the Certificate Register or any such office or agency.
Section 10.12. Trustee May Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto. Any such proceeding instituted by the Trustee shall
be brought in its own name or in its capacity as Trustee. Any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Certificateholders in respect of which such
judgment has been recovered.
Section 10.13. Suits for Enforcement. In case an Event of Default or
other default by the Servicer or of the Company shall occur and be continuing,
the Trustee, in its discretion may proceed to protect and enforce its rights and
the rights of the Certificateholders under this Agreement by a suit, action or
proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained in this Agreement or in aid
of the execution of any power granted in this Agreement or for the enforcement
of any other legal, equitable or other remedy, as the Trustee, being advised by
counsel, shall deem most effectual to protect and enforce any of the rights of
the Trustee or the Certificateholders.
[End of Article X]
<PAGE>
Article XI
TERMINATION
Section 11.01. Termination. (a)The respective obligations and
responsibilities of the Company, the Servicer (except as to Section 10.05) and
the Trustee shall terminate upon: (i) the later of the final payment or other
liquidation (or any advance with respect thereto) of the last Contract or the
disposition of all property acquired upon repossession of any Contract and the
remittance of all funds due hereunder; or (ii) at the option of the Company (if
the Company is not the Servicer) or the Servicer, on any Remittance Date after
the first Remittance Date on which the sum of the Group I Pool Scheduled
Principal Balance and the Group II Pool Scheduled Principal Balance is less than
10% of the Combined Total Original Contract Pool Principal Balance, upon the
purchase of the Contracts at a price equal to the greater of (a) the sum of (x)
100% of the principal balance of each Contract (other than any Contract as to
which the related Manufactured Home has been repossessed and not yet disposed of
and whose fair market value is included pursuant to clause (y) below) as of the
final Remittance Date, and (y) the fair market value of such acquired property
(as determined by the Company or the Servicer, as the case may be, as of the
close of business on the third Business Day next preceding the date upon which
notice of any such termination is furnished to Certificateholders pursuant to
this Section), and (b) the aggregate fair market value (as determined by the
Company or the Servicer, as the case may be, as of the close of business on such
third Business Day) of all of the assets of the Trust Fund, plus, in the case of
both (a) and (b), any Class I A-1 Unpaid Interest Shortfall, any Class I A-2
Unpaid Interest Shortfall, any Class I A-3 Unpaid Interest Shortfall, any Class
I A-4 Unpaid Interest Shortfall, any Class I A-5 Unpaid Interest Shortfall, any
Class I M-1 Unpaid Interest Shortfall, any Class I B-1 Unpaid Interest Shortfall
and any Class I B-2 Unpaid Interest Shortfall, as well as one month's interest
at the applicable APR on the Scheduled Principal Balance of each Contract
(including any Contract as to which the related Manufactured Home has been
repossessed or foreclosed upon and not yet disposed of); provided, however, 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. Notwithstanding the foregoing, the option specified
in clause (ii) of this Section 11.01(a) shall not be exercisable if there will
not be distributed on the Class I A-1, Class I A-2, Class I A-3, Class I A-4,
Class I A-5, Class I M-1, Class I B-1 and Class I B-2 Certificates an amount
equal to the Class I A-1 Principal Balance, Class I A-2 Principal Balance, Class
I A-3 Principal Balance, Class I A-4 Principal Balance, Class I A-5 Principal
Balance, Class I M-1 Principal Balance, Class I B-1 Principal Balance and Class
I B-2 Principal Balance, respectively, together with the Class I A-1 Unpaid
Interest Shortfall, Class I A-2 Unpaid Interest Shortfall, Class I A-3 Unpaid
Interest Shortfall, Class I A-4 Unpaid Interest Shortfall, Class I A-5 Unpaid
Interest Shortfall, Class I M-1 Unpaid Interest Shortfall, Class I B-1 Unpaid
Interest Shortfall and Class I B-2 Unpaid Interest Shortfall, respectively, and
interest accrued during the related Interest Period on the Principal Balance of
each such Class of Certificates at the related Remittance Rate. If the Company
and the Servicer both desire to exercise the option in clause (ii) of this
paragraph on any Remittance Date after the first Remittance Date on which the
sum of the Group I Pool Scheduled Principal Balance and the Group II Pool
Scheduled Principal Balance is less than 10% of the Combined Total Original
Contract Pool Principal Balance, the Servicer shall have the prior right to
exercise such option.
(b) Notice of any termination, specifying the Remittance Date upon
which all Certificateholders may surrender their Certificates to the Trustee for
payment and cancellation, shall be given promptly by the Servicer (if the
Company is exercising the option given it in Section 11.01(a), upon direction by
the Company given 10 days prior to the date such notice is to be mailed) by
letter to Certificateholders, the Trustee and the Rating Agencies mailed no
later than the 15th day of the month preceding the month of such final
distribution specifying (i) the Remittance Date upon which final payment on the
Certificates will be made upon presentation and surrender of Certificates at the
office or agency of the Trustee therein designated, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Remittance Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office or agency of the Trustee therein
specified. After giving such notice, the Trustee shall not register the transfer
of or exchange any Certificates. If such notice is given in connection with the
Company's or the Servicer's election to purchase, the Company or the Servicer
shall deposit in each Certificate Account on the Business Day prior to the
applicable Remittance Date the portion of the amount described in Section
11.01(a)(ii) relating to each Group. Upon presentation and surrender of the
Group I Certificates, the Trustee shall cause to be distributed to
Certificateholders, from funds in the Group I Certificate Account, in proportion
to such Certificateholders' respective Percentage Interests, the following
amounts (to the extent of available funds) in the following order of priority:
(i) to the Class I A-1 Certificateholders, the Class I A-1 Principal Balance
plus the interest due thereon; (ii) to the Class I A-2 Certificateholders, the
Class I A-2 Principal Balance plus the interest due thereon; (iii) to the Class
I A-3 Certificateholders, the Class I A-3 Principal Balance plus the interest
due thereon; (iv) to the Class I A-4 Certificateholders, the Class I A-4
Principal Balance plus the interest due thereon; (v) to the Class I A-5
Certificateholders, the Class I A-5 Principal Balance plus the interest due
thereon; (vi) to the Class I M-1 Certificateholders, the Class I M-1 Principal
Balance plus the interest due thereon; (vii) to the Class I B-1
Certificateholders, the Class I B-1 Principal Balance plus the interest due
thereon; (viii) to the Class I B-2 Certificateholders, the Class I B-2 Principal
Balance plus the interest due thereon; provided that if a Deficiency Event has
occurred, the distribution pursuant to clause (i) , (ii), (iii) and (iv) shall
be pro rata among such Classes on the basis of the amounts specified in such
clauses. Upon presentation and surrender of the Group II Certificates, the
Trustee shall cause to be distributed to Certificateholders, from funds in the
Group II Certificate Account, in proportion to such Certificateholders'
respective Percentage Interests, the following amounts (to the extent of
available funds) in the following order of priority: (i) to the Class II A-1
Certificateholders, the Class II A-1 Principal Balance plus the interest due
thereon; (ii) to the Class II B-1 Certificateholders, the Class II B-1 Principal
Balance plus the interest due thereon; (iii) to the Class II B-2
Certificateholders, the Class II B-2 Principal Balance plus the interest due
thereon, (iv) to the Class II B-3 Certificateholders, the Class II B-3 Principal
Balance plus the interest due thereon, (v) to the Class II B-4
Certificateholders, the Class II B-4 Principal Balance plus the interest due
thereon, and (vi) to the Group II Certificateholders, the Class II A-1 Net Funds
Cap Carryover Amount, the Class II B-1 Net Funds Cap Carryover Amount, the Class
II B-2 Net Funds Cap Carryover Amount, the Class II B-3 Net Funds Cap Carryover
Amount and the Class II B-4 Net Funds Cap Carryover Amount, if any, pro rata
based on the amount of the Net Funds Cap Carryover Amount owing to each such
Class of Certificates. Upon such termination, any amounts remaining in the
Certificate Accounts (other than amounts retained to meet claims) shall be paid
to the Holder of the Class R Certificate. Following such final deposit, the
Trustee shall execute all assignments, endorsements and other instruments
necessary to effectuate such transfer. The distribution on the final Remittance
Date shall be in lieu of the distribution otherwise required to be made on such
Remittance Date in respect of the Certificates. Any amounts retained in the
Certificate Accounts that are owed to Certificateholders which have not
surrendered their Certificates as of the final Remittance Date shall be
withdrawn from the Certificate Accounts and held in an escrow account with the
Trustee pending distribution pursuant to Section 11.01(c).
(c) If all of the Certificateholders shall not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
two years after the second notice all the Certificates shall not have been
surrendered for cancellation, the Trustee shall so notify the Company, deliver
any amounts held by it to the Company and the Company may take appropriate
steps, or may appoint an agent to take appropriate and reasonable steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of, and only to the extent
of, the funds and other assets which remain in trust hereunder. The Trustee upon
transfer of such amounts shall be discharged of any responsibility with respect
to such amounts.
Upon any termination pursuant to the exercise of the purchase option
contained in Section 11.01(a)(ii) or otherwise, the Trust Fund shall be
terminated in accordance with the following additional requirements, unless the
Trustee has received an Opinion of Counsel to the effect that the failure of the
Trust Fund to comply with the requirements of this Section will not (i) result
in the imposition of taxes on "prohibited transactions" of the Trust Fund as
described in Section 860F of the Code, or (ii) cause the Trust Fund to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) Within 90 days prior to the final Remittance Date set forth
in the notice given by the Servicer or the Trustee under this Section,
the Holder of the Class R Certificate shall adopt a plan of complete
liquidation of the Trust Fund; and
(ii) At or after the time of adoption of such a plan of complete
liquidation and at or prior to the final Remittance Date, the Servicer
shall sell all of the assets of the Trust Fund to the Company or the
Servicer, as the case may be, for cash.
By its acceptance of the Class R Certificate, the Holder thereof hereby
agrees to adopt such a plan of complete liquidation upon the written request of
the Servicer or the Company and to take such other action in connection
therewith as may be reasonably requested by the Company.
[End of Article XI]
<PAGE>
Article XII
MISCELLANEOUS PROVISIONS
Section 12.01. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be held
invalid for any reason whatsoever, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and in no way shall affect the validity or
enforceability of the other provisions of this Agreement.
Section 12.02. Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No Certificateholder shall have any right to vote (except as expressly
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Agreement, unless such Holder previously
shall have given to the Trustee a written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
Certificates evidencing not less than 25% of the Trust Fund shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding; it being
understood and intended, and being covenanted expressly by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner whatever
by virtue of any provision of this Agreement to affect, disturb or prejudice the
rights of the Holders of any other of such Certificates, or to obtain or seek to
obtain priority over or preference to any other such Holder, or to enforce any
right under this Agreement. For the protection and enforcement of the provisions
of this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 12.03. Acts of Certificateholders. (a) Except as otherwise
specifically provided herein, whenever Certificate-holder 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
of the specified Class or Classes evidencing, as to each such Class, Percentage
Interests aggregating 51% or more.
(b) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, 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 conclusive in favor of the
Trustee, the Servicer and the Company if made in the manner provided in this
Section.
(c) The fact and date of the execution by any Certificateholder of any
such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
(d) The ownership of Certificates shall be proved by the Certificate
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other act by a Certificateholder shall bind every Holder of every
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done, or omitted to be done
by the Trustee or the Servicer in reliance thereon, whether or not notation of
such action is made upon such security.
(f) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
Section 12.04. Calculations. Except as other provided in this Agreement
with respect to the Class I A-1 Certificates and the Class II Certificates, all
interest rate and basis point calculations under this Agreement will be made on
the basis of a 360-day year and twelve thirty-day months and will be carried out
to at least three decimal places.
Section 12.05. Amendment. This Agreement may be amended from time to
time by the Company, the Servicer, and the Trustee, but without the consent of
any of the Certificateholders, (a) to cure any ambiguity, mistake or error or to
correct or supplement any provisions herein which may be inconsistent with any
other provisions herein, (b) to add to the duties or obligations of the Servicer
hereunder, (c) to obtain a rating by a nationally recognized rating agency or to
maintain or improve the rating of Group I or Group II Certificates then given by
a rating agency (it being understood that, after obtaining the rating of any
Group I or Group II Certificates at the Closing Date, none of the Trustee, the
Company or the Servicer is obligated to obtain, maintain or improve any rating
of the Group I or Group II Certificates), (d) to facilitate the operation of a
guarantee of either the Class I B-2 Certificates or the Class II B-4
Certificates by any Person (it being understood that the creation of any such
guarantee is solely at the option of the Company and that such guarantee will
not benefit in any way or result in any payments on any other Class of
Certificates) or (e) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, including without limitation
provisions relating to the issuance of definitive Certificates to Certificate
Owners provided that book-entry registration of Group I and Group II
Certificates is no longer permitted; provided, however, that such action shall
not, as evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any Certificateholder (including, without limitation,
the maintenance of the status of the Trust Fund as a REMIC under the Code).
This Agreement may also be amended from time to time by the Company,
the Servicer and the Trustee, without consent of the Certificateholders, to
modify, eliminate or add to the provisions of this Agreement to such extent as
shall be necessary to (i) maintain the qualification of the Trust Fund as a
REMIC under the Code or avoid, or minimize the risk of, the imposition of any
tax on the Trust Fund under the Code that would be a claim against the Trust
Fund's assets, provided that there shall have been delivered an Opinion of
Counsel addressed to the Trustee to the effect that (a) such action is necessary
or appropriate to maintain such qualification or avoid any such tax or minimize
the risk of its imposition, and (b) such amendment shall not adversely affect in
any material respect the interests of any Certificateholder or (ii) prevent the
Trust Fund from entering into any "prohibited transaction" as defined in Section
860F of the Code provided that there shall have been delivered an Opinion of
Counsel addressed to the Trustee to the effect that (a) such action is necessary
or appropriate to prevent the Trust Fund from entering into such prohibited
transaction, and (b) such amendment shall not adversely affect in any material
respect the interests of any Certificateholder.
This Agreement also may be amended from time to time by the Company,
the Servicer and the Trustee, with the consent of the Holders of Certificates
evidencing not less than 51% of the Trust Fund, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the timing of, distributions which are required
to be made on any Certificate without the consent of the Holder of such
Certificate; (ii) reduce the aforesaid percentage of Certificates, the Holders
of which are required to consent to any such amendment, without the consent of
the Holders of all such Certificates then outstanding or (iii) adversely affect
the status of the Trust Fund as a REMIC or cause a tax to be imposed on the
Trust Fund under the REMIC Provisions.
Promptly after the execution of any such amendment the Trustee shall
furnish written notification of the substance of such amendment to each
Certificateholder and the Rating Agencies.
It shall not be necessary for the consent of Certificateholders under
this Section 12.05 to approve the particular form of any proposed amendment but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the Trustee
shall be entitled to receive and rely upon an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by this Agreement and
that all conditions precedent to such execution and delivery have been
satisfied. 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.
Section 12.06. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Contracts are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Servicer at the Servicer's expense
accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders or
is necessary for the administration or servicing of the Contracts.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 12.07. Contribution of Assets. Except as provided in Section
3.05(b) and so much of Section 3.05(a) as does not relate to a deposit in lieu
of repurchase of a Contract the principal balance of which is incorrectly set
forth on the Contract Schedule, following the Closing Date, the Trustee shall
not accept any contribution of additional assets to the Trust Fund unless the
Company has delivered an Opinion of Counsel addressed to the Trustee to the
effect that (i) the contribution of such assets into the Trust Fund will not
cause the Trust Fund to fail to qualify as a REMIC so long as any Certificate is
outstanding and (ii) such contribution will not cause the imposition of tax on
contributions to the Trust Fund after the "start-up day" (as defined in Section
860G of the Code) with respect thereto.
Section 12.08. Duration of Agreement. This Agreement shall continue in
existence and effect until terminated as herein provided.
Section 12.09. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York, except that the laws of the
State of Tennessee shall govern the transfer, sale, assignment, set over and
conveyance of the Contracts from the Company to the Trustee, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws, as applicable.
Section 12.10. Notices. All demands, notices and communications
hereunder shall be in writing and (a) shall be deemed to have been duly given if
personally delivered at, sent by overnight courier to or telecopied (with
transmission confirmed by telephone) to, or (b) shall be deemed to have been
given when received if mailed by first class or registered mail, postage
prepaid, to (i) in the case of the Company, 500 Alcoa Trail, Maryville, TN
37804, Attention: President; (ii) in the case of the Trustee, The Bank of New
York, 101 Barclay Street - 12E, New York, New York 10286, Attention: Structured
Finance Services; (iii) in the case of Moody's, 99 Church Street, New York, New
York 10007 Attention: Mortgage Backed Securities Unit; or (iv) in the case of
Fitch, One State Street Plaza, New York, New York 10004.
Section 12.11. Merger and Integration of Documents. 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 12.12. Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
Section 12.13. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
[End of Article XII]
<PAGE>
IN WITNESS WHEREOF, the Company, as Seller and Servicer, CHI and the
Trustee have caused their names to be signed hereto by their respective officers
thereunto duly authorized as of the day and year first above written.
VANDERBILT MORTGAGE AND FINANCE,
INC., as Seller and Servicer
By: /s/ David Jordan
------------------------------
Name: David Jordan
Title: Secretary
THE BANK OF NEW YORK,
as Trustee
By: /s/ John Polito
------------------------------
Name: John Polito
Title: Vice President
CLAYTON HOMES, INC., as Provider
of the Limited Guarantee
By: /s/ Kevin Clayton
------------------------------
Name: Kevin Clayton
Title: President
<PAGE>
STATE OF TENNESSEE )
) ss.:
COUNTY OF BLOUNT )
On the 30th day of November, 1999, before me, a notary public in and
for said State, personally appeared David Jordan, known to me to be the
Secretary of Vanderbilt Mortgage and Finance, Inc., one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
____________________________________
Notary Public
[Notarial Seal]
<PAGE>
STATE OF TENNESSEE )
) ss.:
COUNTY OF BLOUNT )
On the 30th day of November, 1999 before me, a notary public in and for
said State, personally appeared Kevin Clayton, known to me to be the President
of Clayton Homes, Inc., one of the corporations that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
____________________________________
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 30th day of November, before me, a notary public in and for said
State, personally appeared _______________, known to me to be a _______________
of The Bank of New York, a New York banking corporation that executed the within
instrument, and also known to be the person who executed it on behalf of said
banking corporation and acknowledged to me that such banking corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
____________________________________
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A-1
CONTRACT SCHEDULE
(On file with the Trustee and Brown & Wood LLP)
<PAGE>
EXHIBIT A-2
FORM OF CUSTODIAL AGREEMENT
Dated as of November 30, 1999
THE BANK OF NEW YORK, a New York banking corporation, as trustee (the
"Trustee"), SOUTHTRUST BANK, NATIONAL ASSOCIATION, a national banking
association, or its successors in interest (the "Custodian" or "SouthTrust"),
and VANDERBILT MORTGAGE AND FINANCE, INC., a Tennessee corporation, or its
successors in interest, individually and as Servicer (individually, "Vanderbilt"
or, in its capacity as servicer, the "Servicer"), agree as follows:
WHEREAS, the Trustee, Vanderbilt and Clayton Homes, Inc. have entered
into a Pooling and Servicing Agreement, dated as of October 26, 1999 (the
"Pooling Agreement"; terms used but not defined herein shall have the meanings
assigned to them in Section 1.01 of the Pooling Agreement attached hereto at
Appendix A) relating to the Manufactured Housing Contract Senior/Subordinate
Pass-Through Certificates, Series 1999D (the "Certificates");
WHEREAS, pursuant to Section 2.04 of the Pooling Agreement, Vanderbilt
shall deliver each Delivered Land-and-Home Contract File and each Delivered
Mortgage Loan File to the Trustee or a custodian on its behalf and the Trustee
may appoint a custodian with respect to such Delivered Land-and-Home Contract
Files and the Delivered Mortgage Loan Files (collectively, the "Files");
WHEREAS, the Trustee wishes to appoint SouthTrust as custodian with
respect to the Files; and
WHEREAS, SouthTrust is willing to act as custodian of the Files and
perform its services in accordance with the terms and conditions hereof;
WITNESSETH THAT:
In consideration of the premises and of the mutual agreements herein
contained, the Trustee, the Custodian and Vanderbilt agree as follows:
1. Appointment as the Custodian. Subject to the terms and conditions
herein, the Trustee hereby appoints the Custodian, and the Custodian hereby
accepts such appointment, to maintain custody of the Files relating to the
Land-and-Home Contracts and Mortgage Loans listed on Schedule I hereto (the
"Schedule"). The Custodian shall have no duties or obligations except those
expressly stated in this Agreement, and such duties or obligations shall be
determined solely by the express provisions of this Agreement.
2. Charges and Expenses. The Custodian will charge for its services
under this Agreement as set forth in a separate agreement between the Custodian
and Vanderbilt, the payment of which shall be the obligation of Vanderbilt. The
Trustee shall not be responsible for the fees or expenses of the Custodian.
3. Initial Delivery of Files. Within 30 days of the date hereof, the
Servicer shall deliver the following items to the Custodian:
(1) with respect to each Land-and-Home Contract,
(a) the original of the Land-and-Home Contract, and, in the case
of each Bi-weekly Contract, the original of the bi-weekly rider for
such Contract, and, in the case of each Escalating Principal Payment
Contract, the original of the graduated payment rider for such
Contract;
(b) the original related Mortgage with evidence of recording
thereon and any title document for the related Manufactured Home;
(c) with respect to any Land-and-Home Contract not originated by
Vanderbilt, the assignment of the Land-and-Home Contract from the
originator to Vanderbilt with evidence of recording thereon;
(d) with respect to any Land-and-Home Contract originated by
Vanderbilt, an endorsement of such Land-and-Home Contract by
Vanderbilt without recourse;
(e) with respect to the Land-and-Home Contracts located in the
ten states with the highest concentration of Land-and-Home Contracts
(listed on Exhibit D hereto), an Opinion of Counsel to the effect that
Vanderbilt need not cause to be recorded any assignment which relates
to Land-and-Home Contracts in such states to protect the Trustee's and
the Certificateholders' interest in such Land-and-Home Contracts;
provided, --------- however, if Vanderbilt fails to deliver such an
Opinion of Counsel for any of the states listed on Exhibit D, with
respect to the Land-and-Home Contracts located in those states,
Vanderbilt shall provide an original executed assignment of the
Mortgage, with evidence of recording thereon, showing the assignment
from Vanderbilt to the Trustee; and
(f) any extension, waiver or modification agreement(s) for each
Land-and-Home Contract on the Schedule; and
(2) with respect to each Mortgage Loan,
(a) the original related Mortgage, with evidence of recording
indicated thereon, and the original related mortgage note, if any;
(b) the original assignment and any intervening assignments of
the Mortgage, with evidence of recording thereon, showing a complete
chain of assignment of the Mortgage Loan from origination of the
Mortgage Loan to Vanderbilt;
(c) an original assignment, with evidence of recording thereon,
showing the assignment from Vanderbilt to the Trustee; and
(d) any extension, modification or waiver agreement(s) for each
Mortgage Loan on the Schedule.
In lieu of the items to be recorded and delivered pursuant to Sections
3(1)(b), 3(1)(c), 3(1)(e), 3(2)(a), 3(2)(b) and 3(2)(c) above (the "Recorded
Documents"), if the original Mortgage or assignment has not been returned by the
applicable recording office or is not otherwise available, Vanderbilt shall
provide the Custodian with a copy thereof together with an Officer's Certificate
(which may be a blanket Officer's Certificate of Vanderbilt covering all such
Mortgages and assignments) certifying that the copy is a true and correct copy
of the original Mortgage or original assignment, as applicable, submitted for
recording, which will be (1) replaced by the original Mortgage or original
assignment when it is so returned or (2) if the recording office in the
applicable jurisdiction retains the original Mortgage or original assignment or
the original Mortgage or original assignment has been lost, a copy of such item
certified by the applicable recording office.
All of the items with respect to a Land-and-Home Contract which are
delivered to and held by the Custodian are referred to herein as the "Delivered
Land-and-Home Contract File." All of the items with respect to a Mortgage Loan
which are delivered to and held by the Custodian are referred to herein as the
"Delivered Mortgage Loan File."
Such delivery shall be accompanied by a Certificate of Delivery (the
"Certificate of Delivery") of Vanderbilt substantially in the form of Exhibit A
hereto.
4. Subsequent Delivery of Documents. Vanderbilt shall deliver each
Recorded Document (or if the recording office in the applicable jurisdiction
retains the original Mortgage or original assignment or the original Mortgage or
original assignment has been lost, a copy of such item certified by the
applicable recording office) to the Custodian no later than the earlier of (1)
five Business Days after receipt thereof and (ii) within 180 days of the Closing
Date. In addition, within that same time period, Vanderbilt shall deliver to the
Custodian any other original documents constituting a part of the Files.
5. Maintenance of Office. The Custodian agrees to maintain the
Delivered Land-and-Home Contract Files for each Land-and-Home Contract and the
Delivered Mortgage Loan Files for each Mortgage Loan identified in the Schedule
at the office of the Custodian located at 110 Office Park Drive, Birmingham,
Alabama or at such other offices of the Custodian in the State of Alabama as the
Custodian shall designate from time to time after giving the Servicer and the
Trustee at least 10 days' prior written notice.
6. Standard of Care and Limitation on Liability of the Custodian. The
Custodian shall not be subject to liability for any loss with respect to the
Files; provided, however, that the Custodian shall use its best judgment and
perform its duties under this Agreement in good faith and in accordance with
customary standards for such custody; and provided, however, that the provisions
of this paragraph shall not be construed to relieve the Custodian from liability
from its own negligence, or its own willful misconduct or any breach by the
Custodian of any of its obligations hereunder.
7. Duties of the Custodian. The Custodian shall have the following
rights and obligations and shall perform the following duties with respect to
the Files in its possession:
(a) Safekeeping. To segregate the Files from all other mortgages and
mortgage notes and similar records in its possession, to maintain the Files in
secure, fireproof facilities, to identify the Files as being held and to hold
the Files for and on behalf of the Trustee for the benefit of all present and
future Certificateholders, and to conduct periodic physical inspections of the
Files held by it under this Agreement in such a manner as shall enable the
Custodian to verify the physical possession thereof. The Custodian will promptly
report to the Servicer and the Trustee any failure on its part to hold the Files
as herein provided and promptly take appropriate action to remedy any such
failure.
(b) Certification as to File Contents.
(i) Within 45 days after the Custodian has received from (or on
behalf of) the Servicer actual possession of each File, the Custodian
shall (a) verify that, with respect to each File, all documents listed
on the Certificate of Delivery have been executed, received and
recorded, if applicable, except as noted on the list of exceptions
attached thereto, and (b) deliver to the Servicer and the Trustee an
Initial Certificate of Receipt, substantially in the form of Exhibit
B-1 attached hereto, which ascertains that all required documents have
been executed, received and recorded, if applicable. After the
delivery of the Initial Certificate of Receipt, the Custodian shall
provide to Vanderbilt and the Trustee, no less frequently than
quarterly, updated certifications, in the form of Exhibit B-2,
indicating the current status of exceptions until all such exceptions
have been eliminated.
(ii) In making such a review, the Custodian makes no
representation and has no responsibilities as to the authenticity of
such documents or their compliance with applicable law, including but
not limited to their compliance with the requirements for recordation,
the correctness of the legal description contained in any document or
the collectibility of any of the loan amounts from any borrower. In
making such verification, the Custodian may rely conclusively on the
Schedule attached hereto and the Certificate of Delivery, and the
Custodian shall have no obligation to independently verify the
correctness of the Schedule or the Certificate of Delivery.
(iii) If (a) any discrepancy exists between the Files in the
possession of the Custodian and the Schedule or (b) any document or
documents constituting a part of a File (the contents of which are
indicated in the Certificate of Delivery) has been omitted or is
defective in any material respect, the Custodian shall promptly notify
the Servicer and the Trustee and deliver an exceptions report (the
"Exceptions Report") as promptly as possible but in any event within
45 days of the date of receipt of the Files. Except as specifically
provided above, the Custodian shall be under no duty to review,
inspect or examine such documents to determine that any of them are
enforceable or appropriate for their prescribed purpose.
(c) Administration; Reports. The Custodian shall, at the expense of the
Servicer and any subservicer, assist the Servicer and any subservicer generally
in the preparation of reports to Certificateholders or to regulatory bodies to
the extent necessitated by the Custodian's custody of the Files.
(d) Release of Documents. Upon receipt of a Request for Release (a
"Request for Release") (substantially in the form attached hereto as Exhibit C),
to release all or a portion of any File to the Servicer, the Trustee, or the
designee of either the Servicer or the Trustee, in accordance with the
instructions furnished by the Servicer, and to cooperate on behalf of the
Trustee in such release of Files. All documents so released to the Servicer, the
Trustee or their respective designees shall be held by such entity in trust for
the benefit of the Certificateholders. Unless such Land-and-Home Contract or
Mortgage Loan has been liquidated, the Servicer, the Trustee or their respective
designees shall return to the Custodian such released documents when such
documents are no longer needed for the purpose set forth in the Request for
Release.
8. Access to Records. The Custodian shall permit the Trustee, the
Servicer and any subservicer appointed by the Servicer and identified by the
Trustee to the Custodian, or their duly authorized representatives, attorneys or
auditors to inspect the Files and the books and records maintained by the
Custodian at such time as the Trustee, the Servicer or any subservicer may
reasonably request, subject only to compliance by the Trustee, the Servicer or
any subservicer with the security procedures of the Custodian applied by the
Custodian to its own employees having access to these and similar records.
9. Instructions; Authority to Act. The Custodian shall be deemed to
have received proper instructions with respect to the Files upon receipt of
written notice, request, consent, certificate, order, affidavit, letter,
telegram or other document reasonably believed by it to be genuine and to have
been signed or sent by the proper party or parties and may be considered as in
full force and effect until receipt of written notice to the contrary by the
Custodian from the Trustee, the Servicer or any subservicer; provided, however,
that the provision of this paragraph shall not be construed to relieve the
Custodian, its officers, directors, employees, agents or other representatives
from liability from its own negligence or its own willful misconduct.
10. Indemnification of the Custodian. Vanderbilt agrees to indemnify
the Custodian for any and all liabilities, obligations, losses, damages,
payments, costs or expenses of any kind whatsoever (including reasonable
attorneys fees) which may be imposed on, incurred or asserted against the
Custodian as the result of any act or omission in any way relating to the
maintenance and custody by the Custodian of the Files; provided, however, that
Vanderbilt shall not be liable for any portion of any such amount resulting from
the gross negligence or willful misconduct of the Custodian.
11. Indemnification of the Trustee. Vanderbilt agrees to indemnify the
Trustee for any and all liabilities, obligations, losses, damages, payments,
costs or expenses of any kind whatsoever (including reasonable attorneys fees)
which may be imposed on, incurred or asserted against the Trustee as the result
of any act or omission in any way relating to or arising out of the maintenance
and custody by the Custodian of the Files or the performance by the Custodian,
Vanderbilt or any Servicer of their respective duties hereunder; provided,
however, that Vanderbilt shall not be liable for any portion of any such amount
resulting from the gross negligence or willful misconduct of the Trustee.
12. Advice of Counsel. The Custodian shall be entitled to rely and act
upon written advice of counsel with respect to its performance hereunder as
custodian and shall be without liability for any action reasonably taken
pursuant to such advice, provided that such action is not in violation of
applicable Federal or State law and Vanderbilt shall reimburse the Custodian for
the reasonable attorneys' fees of the Custodian.
13. SouthTrust Not to Resign. SouthTrust shall not resign from its
obligations and duties as Custodian hereby imposed on it except (a) upon
determination that the performance of its obligations or duties hereunder are no
longer permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it or its subsidiaries or
affiliates, the other activities of SouthTrust so causing such a conflict being
of a type and nature carried on by SouthTrust or its subsidiaries or affiliates
at the date of this Agreement or (b) upon satisfaction of the following
conditions: (i) SouthTrust has proposed a successor custodian to the Trustee in
writing and such proposed successor is reasonably acceptable to the Trustee; and
(ii) Moody's Investors Service, Inc. ("Moody's") or its successor in interest
and Fitch IBCA, Inc. ("Fitch") or its successor in interest shall have delivered
a letter to the Trustee prior to the appointment of the successor stating that
the proposed appointment of such successor of SouthTrust hereunder will not
result in the reduction or withdrawal of the then current rating of the
Certificates; provided, however, that no such resignation by SouthTrust shall
become effective until its successor or, in the case of (a) above, the Trustee
or a custodian appointed by the Trustee and acceptable to Moody's and Fitch
shall have assumed SouthTrust's responsibilities and obligations hereunder. Any
such determination permitting the resignation of SouthTrust pursuant to clause
(a) above shall be evidenced by an opinion of counsel to such effect reasonably
satisfactory to the Trustee and delivered to Vanderbilt and the Trustee
concurrently with the delivery of any notice of resignation.
14. Effective Period, Termination and Amendment. This Agreement shall
become effective as of the date hereof and shall continue in full force and
effect until terminated as hereinafter provided, and may be amended at any time
by mutual agreement of the parties hereto. This Agreement may be terminated by
the Trustee with or without cause in a writing delivered or mailed, postage
prepaid, to the other parties, such termination to take effect no sooner than
sixty (60) days after the date of such delivery or mailing. Concurrently with,
or as soon as practicable after, the termination of this Agreement, the
Custodian shall redeliver the Files to the Trustee or a person designated by the
Trustee at such place as the Trustee or the person designated by the Trustee may
reasonably designate.
15. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
16. Notices. All demands, notices and communications hereunder shall be
in writing and shall be delivered or mailed, postage prepaid, to the Trustee at
101 Barclay Street - 12E New York, New York 10286 Attention: Structured Finance
Services; to the Custodian at P.O. Box 2554, Birmingham, Alabama 35290,
Attention: Jay Searcy, Document Custody; to the Servicer or Vanderbilt at 500
Alcoa Trail, Maryville, TN 37804, Attention: President; or to such other address
as the Trustee, the Custodian, the Servicer or Vanderbilt may hereafter specify
in writing. Notices or other writings shall be effective only upon actual
receipt by the parties.
17. Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the Trustee, the Custodian, Vanderbilt, in its
individual capacity, the Servicer and their respective successors and assigns.
Concurrently with the appointment of a successor trustee as provided in the
Pooling Agreement, the parties hereto shall amend this Agreement to make said
successor trustee the successor to the Trustee hereunder.
18. Counterparts. This Agreement may be signed in any number of
counterparts each of which will be deemed an original, which taken together
shall constitute one and the same instrument.
19. Obligations of the Trustee. Nothing in this Agreement shall be
deemed to release the Trustee from any of its obligations under the Pooling
Agreement.
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by a duly authorized
officer as of the day and year first above written.
THE BANK OF NEW YORK,
as Trustee
By: ____________________________
Name:
Title:
SOUTHTRUST BANK, NATIONAL ASSOCIATION,
as Custodian
By: _____________________________
Name:
Title:
VANDERBILT MORTGAGE AND FINANCE, INC.
individually and as Servicer
By: _____________________________
Name:
Title:
<PAGE>
APPENDIX A
(Series 1999D Pooling and Servicing Agreement)
<PAGE>
SCHEDULE I
(Schedule of Land-and-Home Contracts and Mortgage Loans)
<PAGE>
EXHIBIT A TO THE CUSTODIAL AGREEMENT
CERTIFICATE OF DELIVERY
The undersigned hereby certifies that the documents listed below,
except as noted on the list of exceptions attached hereto, are included in the
Delivered Land-and-Home Contract Files and the Delivered Mortgage Loan Files
delivered to the Custodian pursuant to the terms of the Custodial Agreement,
dated November 30, 1999 (the "Custodial Agreement"), among The Bank of New York,
as trustee (the "Trustee"), SouthTrust Bank, National Association, as custodian
(the "Custodian") and Vanderbilt Mortgage and Finance, Inc. ("Vanderbilt") for
each contract on the Schedule:
(1) with respect to each Land-and-Home Contract,
(a) the original of the Land-and-Home Contract, and, in the case of
each Bi-weekly Contract, the original of the bi-weekly rider for such
Contract, and, in the case of each Escalating Principal Payment
Contract, the original of the graduated payment rider for such
Contract;
(b) the original related Mortgage with evidence of recording thereon
and any title document for the related Manufactured Home;
(c) with respect to any Land-and-Home Contract not originated by
Vanderbilt, the assignment of the Land-and-Home Contract from the
originator to Vanderbilt with evidence of recording thereon;
(d) with respect to any Land-and-Home Contract originated by
Vanderbilt, an endorsement of such Land-and-Home Contract by Vanderbilt
with recourse;
(e) with respect to the Land-and-Home Contracts located in the ten
states listed on Exhibit D to the Custodial Agreement, the Opinion of
Counsel specified in Section 3(1)(e) of the Custodial Agreement;
provided, however, if Vanderbilt failed to deliver such an Opinion of
Counsel for any of the states listed on Exhibit D to the Custodial
Agreement, with respect to the Land-and-Home Contracts located in those
states, the original executed assignment of the Mortgage, with evidence
of recording thereon, showing the assignment from Vanderbilt to the
Trustee; and
(f) any extension, waiver or modification agreement(s) for each
Land-and-Home Contract on the Schedule.
(2) with respect to each Mortgage Loan,
(a) the original related Mortgage, with evidence of recording indicated
thereon, and the original related mortgage, if any;
(b) the original assignment and any intervening assignments of the
Mortgage, with evidence of recording thereon, showing a complete chain
of assignment of the Mortgage Loan from origination of the Mortgage
Loan to Vanderbilt;
(c) the original assignment, with evidence of recording thereon,
showing the assignment from Vanderbilt to the Trustee; and
(d) any extension, modification or waiver agreement(s) for each
Mortgage Loan on the Schedule.
In lieu of the items to be recorded and delivered pursuant to Sections (1)(b),
(1)(c), (1)(e), (2)(a), (2)(b) and (2)(c) above (the "Recorded Documents"), if
the original Mortgage or assignment has not been returned by the applicable
recording office or is not otherwise available, Vanderbilt has provided the
Custodian with a copy thereof together with an Officer's Certificate (which may
be a blanket Officer's Certificate of Vanderbilt covering all such Mortgages and
assignments) certifying that the copy is a true and correct copy of the original
Mortgage or original assignment, as applicable, submitted for recording, which
will be (1) replaced by the original Mortgage or original assignment when it is
so returned or (2) if the recording office in the applicable jurisdiction
retains the original Mortgage or original assignment or the original Mortgage or
original assignment has been lost, a copy of such item certified by the
applicable recording office.
In accordance with Section 4 of the Custodial Agreement, Vanderbilt
shall deliver to the Custodian any additional items required pursuant to
Custodial Agreement within the time period specified therein.
Capitalized terms not otherwise defined herein shall have the meaning
set forth in the Custodial Agreement.
Dated: VANDERBILT MORTGAGE AND FINANCE, INC.,
as Servicer
By:__________________________________
Name:
Title:
<PAGE>
EXHIBIT B-1 TO THE CUSTODIAL AGREEMENT
INITIAL CERTIFICATE OF RECEIPT
The Bank of New York,
as Trustee
101 Barclay Street - 12E
New York, New York 10286
Attention: Structured Finance Services
Vanderbilt Mortgage and Finance, Inc.
500 Alcoa Trail
Maryville, TN 37802
Re: Custodial Agreement, dated as of November 30, 1999, among The
Bank of New York, SouthTrust Bank, National Association and
Vanderbilt Mortgage and Finance, Inc.
-------------------------------------------------------------
Ladies and Gentlemen:
The undersigned hereby acknowledges receipt on this ___ day of
__________ 1999 of the Certificate of Delivery and the Delivered Land-and-Home
Contract Files and the Delivered Mortgage Loan Files. Subject to the Custodial
Agreement, dated November 30, 1999, among The Bank of New York, as trustee (the
"Trustee"), SouthTrust Bank, National Association, as custodian (the
"Custodian") and Vanderbilt Mortgage and Finance, Inc. ("Vanderbilt" or in its
capacity as servicer, the "Servicer") (the "Custodial Agreement"), the
undersigned hereby certifies that it has reviewed each of the Files listed on
the Schedule and that it is holding, on behalf of the Trustee and for the
benefit of the Certificateholders, the following items (except as noted on the
list of exceptions attached hereto):
(1) with respect to each Land-and-Home Contract,
(a) the original of the Land-and-Home Contract, and, in the case of
each Bi-weekly Contract, the original of the bi-weekly rider for such
Contract, and, in the case of each Escalating Principal Payment
Contract, the original of the graduated payment rider for such
Contract;
(b) the original related Mortgage with evidence of recording thereon
and any title document for the related Manufactured Home;
(c) with respect to any Land-and-Home Contract not originated by
Vanderbilt, the assignment of the Land-and-Home Contract from the
originator to Vanderbilt with evidence of recording thereon;
(d) with respect to any Land-and-Home Contract originated by
Vanderbilt, an endorsement of such Land-and-Home Contract by Vanderbilt
without recourse;
(e) (1) with respect to the Land-and-Home Contracts located in the ten
states with the highest concentration of Land-and-Home Contracts
(listed on Exhibit D to the Custodial Agreement), an Opinion of Counsel
to the effect that Vanderbilt need not cause to be recorded any
assignment which relates to Land-and-Home Contracts in such states to
protect the Trustee's and the Certificateholders' interest in such
Land-and-Home Contracts; or
(2) if the above-referenced Opinion of Counsel is not delivered with
respect to any of the ten states listed on Exhibit D to the Custodial
Agreement, with respect to the Land-and-Home Contracts located in those
states, an original executed assignment of the Mortgage, with evidence
of recording thereon, showing the assignment from Vanderbilt to the
Trustee; and
(f) any extension, waiver or modification agreement(s) of which the
Custodian is aware for each Land-and-Home Contract on the Schedule.
(2) with respect to each Mortgage Loan,
(a) the original related Mortgage, with evidence of recording indicated
thereon, and the original related mortgage note, if any;
(b) the original assignment and any intervening assignments of the
Mortgage, with evidence of recording thereon, showing a complete chain
of assignment of the Mortgage Loan from origination of the Mortgage
Loan to Vanderbilt;
(c) the original assignment, with evidence of recording thereon,
showing the assignment from Vanderbilt to the Trustee; and
(d) any extension, modification or waiver agreement(s) of which the
Custodian is aware for each Mortgage Loan on the Schedule.
In lieu of the items to be recorded and delivered pursuant to Sections
(1)(b), (1)(c), (1)(e), (2)(a), (2)(b) and (2)(c) above (the "Recorded
Documents"), if the original Mortgage or assignment has not been returned by the
applicable recording office or is not otherwise available, the Custodian has
received a copy thereof together with an Officer's Certificate certifying that
the copy is a true and correct copy of the original Mortgage or original
assignment, as applicable, submitted for recording, which will be (1) replaced
by the original Mortgage or original assignment when it is so returned or (2) if
the recording office in the applicable jurisdiction retains the original
Mortgage or original assignment or the original Mortgage or original assignment
has been lost, a copy of such item certified by the applicable recording office.
Pursuant to Section 7(b) of the Custodial Agreement, the Custodian will
provide an updated certification to Vanderbilt and the Trustee, no less
frequently than quarterly, indicating the current status of exceptions until all
such exceptions have been eliminated.
The undersigned agrees to hold the Files strictly in accordance with
the Custodial Agreement and shall perform its duties as explicitly set forth
thereunder, and shall have no other duties thereunder. Terms not otherwise
defined herein shall have the meaning set forth in the Custodial Agreement.
SOUTHTRUST BANK, NATIONAL ASSOCIATION
By:__________________________________
Name:
Title:
<PAGE>
EXHIBIT B-2 TO THE CUSTODIAL AGREEMENT
FORM OF UPDATED CERTIFICATION
The Bank of New York,
as Trustee
101 Barclay Street - 12E
New York, New York 10286
Attention: Structured Finance Services
Vanderbilt Mortgage and Finance, Inc.
500 Alcoa Trail
Maryville, TN 37804
Re: Custodial Agreement, dated as of November 30, 1999, among The
Bank of New York, SouthTrust Bank, National Association and
Vanderbilt Mortgage and Finance, Inc.
-------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 7 of the above-referenced Custodial
Agreement, the undersigned, as Custodian, hereby sets forth an updated exception
report from the previous Custodian's Certificate issued [INSERT DATE].
The undersigned agrees to hold the Files strictly in accordance with
the Custodial Agreement and shall perform its duties as explicitly set forth
thereunder, and shall have no other duties thereunder. Terms not otherwise
defined herein shall have the meaning set forth in the Custodial Agreement.
SOUTHTRUST BANK, NATIONAL ASSOCIATION
By:__________________________________
Name:
Title:
<PAGE>
EXHIBIT C TO THE CUSTODIAL AGREEMENT
REQUEST FOR RELEASE OF DOCUMENTS
- --------------------------------------------------------------------------------
TO: SOUTHTRUST BANK, NATIONAL ASSOCIATION DATE:
____________________________
____________________________
____________________________
____________________________
FROM: ____________________________
____________________________
____________________________
____________________________
RE: Custodial Agreement, dated as of November 30, 1999 (the "Custodial
Agreement"), among The Bank of New York, as trustee, SouthTrust Bank, National
Association, as custodian and Vanderbilt Mortgage and Finance, Inc.,
individually and as Servicer.
- --------------------------------------------------------------------------------
IN CONNECTION WITH THE ADMINISTRATION OF THE FILES HELD BY YOU IN CUSTODY FOR
THE BANK OF NEW YORK AND PURSUANT TO THE CUSTODIAL AGREEMENT, THE UNDERSIGNED
REQUESTS THE RELEASE OF THE DOCUMENTS DESCRIBED BELOW FOR THE REASON INDICATED.
- --------------------------------------------------------------------------------
OBLIGOR'S NAME, ADDRESS AND ZIP CODE LOAN NO.
POOL ID
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ORIGINAL CONTRACT AMOUNT........................ $___________
DATE OF ORIGINAL CONTRACT....................... ___________
- -----------
PAID THROUGH DATE...........................................___________
- --------------------------------------------------------------------------------
REASON FOR REQUESTING DOCUMENTS AMOUNT SETTLEMENT DATE
[ ] CONTRACT PAID IN FULL $________ _______________
[ ] FORECLOSURE $________ __________
[ ] EXHIBITS ATTACHED FOR SUBSTITUTION $________ __________
[ ] OTHER (explain)___________________ $________ __________
WE CERTIFY THAT ALL AMOUNTS RECEIVED OR TO BE RECEIVED IN CONNECTION WITH SUCH
PAYMENT WHICH ARE REQUIRED TO BE CREDITED TO THE PROTECTED ACCOUNT OR DEPOSITED
TO THE CERTIFICATE ACCOUNT HAVE BEEN OR, WITHIN TWO BUSINESS DAYS, RECEIPT OF
SUCH PAYMENT WILL BE CREDITED OR DEPOSITED.
- --------------------------------------------------------------------------------
SIGNATURE DATE
- --------------------------------------------------------------------------------
PARTICIPANT AUTHORIZED SIGNATURE
- --------------------------------------------------------------------------------
[CUSTODIAN'S] RELEASE AUTHORIZATION
- --------------------------------------------------------------------------------
NAME AND TITLE SIGNATURE DATE
- --------------------------------------------------------------------------------
TO CUSTODIAN: PLEASE ACKNOWLEDGE BELOW BY YOUR SIGNATURE THE EXECUTION OF THE
ABOVE REQUEST. YOU MUST RETAIN THIS FORM FOR YOUR FILES.
DOCUMENT RETURNED TO CUSTODY:
________________________________ __________________
SIGNATURE DATE
<PAGE>
EXHIBIT D TO THE CUSTODIAL AGREEMENT
LIST OF TEN STATES WITH HIGHEST CONCENTRATION
OF LAND-AND-HOME CONTRACT FILES
<PAGE>
EXHIBIT B-1
FORM OF FACE OF CLASS [I A-1][I A-2][I A-3]
[I A-4][I A-5] 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.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
[FOR CLASS I A-5 ONLY: THIS CERTIFICATE IS SUBORDINATED IN
RIGHT OF PAYMENT TO THE CLASS I A-1, CLASS I A-2, CLASS I
A-3 AND CLASS I A-4 CERTIFICATES AS DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.]
Number_____
Date of Pooling and Original Denomination
Servicing Agreement and $____________________
Cut-off Date:
October 26, 1999 Original Class [I A-1][I A-2]
[I A-3][I A-4][I A-5]
Principal Balance:
Class [I A-1][I A-2][I A-3] $[__________]
[I A-4][I A-5] $[__________]
Remittance Rate: As specified $[__________]
in the Pooling and Servicing $[__________]
Agreement referred to herein $[__________]
$[__________]
Remittance Date after
Latest Due Date: ____ __, ____
First Remittance Date: CUSIP _______________
December 7, 1999
<PAGE>
MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
SERIES 1999D, CLASS [I A-1][I A-2][I A-3][I A-4][I A-5]
[(SENIOR)][(SUBORDINATE)]
evidencing a percentage interest in any distributions
allocable to the Class [I A-1][I A-2][I A-3][I A-4][I A-5]
Certificates with respect to a pool of fixed rate
conventional manufactured housing contracts formed and sold
by
VANDERBILT MORTGAGE AND FINANCE, INC.
which manufactured housing contracts either were originated or acquired by and
are initially serviced by Vanderbilt Mortgage and Finance, Inc. (the
"Servicer").
This Certificate does not represent an obligation of or interest in
Vanderbilt Mortgage and Finance, Inc., the Servicer or the Trustee referred to
below or any of their Affiliates. Neither this Certificate nor the underlying
manufactured housing contracts are guaranteed or insured by Vanderbilt Mortgage
and Finance, Inc., the Servicer or by any governmental agency or
instrumentality.
THE PORTION OF THE ORIGINAL CLASS [I A-1][I A-2][I A-3] [I A-4][I A-5]
PRINCIPAL BALANCE EVIDENCED BY THIS CERTIFICATE ("CERTIFICATE BALANCE") WILL BE
REDUCED BY DISTRIBUTIONS ON THIS CERTIFICATE THAT ARE ALLOCABLE TO PRINCIPAL.
ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE ORIGINAL DENOMINATION
SHOWN ABOVE. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. On the date of the initial
issuance of the Certificates, the Paying Agent is the Trustee.
This certifies that CEDE & CO. is the registered owner of an undivided
interest in certain monthly distributions with respect to a pool (the "Contract
Pool") of conventional manufactured housing installment sales contracts,
installment loan agreements and mortgage loans (collectively, the "Contracts")
formed and sold by Vanderbilt Mortgage and Finance, Inc. (hereinafter called the
"Company," which term includes any successor entity under the Agreement referred
to below) and certain other property (collectively, the "Trust Fund"). The
Contracts either were originated or acquired by and are serviced by the Servicer
and are secured by Manufactured Homes. The Trust Fund was created pursuant to a
Pooling and Servicing Agreement dated as specified above (the "Agreement"), by
and among the Company, as servicer, Clayton Homes, Inc., as provider of the
Limited Guarantee and The Bank of New York, as trustee (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as Manufactured Housing Contract Senior/Subordinate Pass-Through
Certificates, Series 1999D (the "Certificates"), and is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
On each Remittance Date, the Trustee will cause to be distributed from
funds in the Certificate Account to each Class [I A-1][I A-2][I A-3][I A-4][I
A-5] Certificateholder an amount equal to the product of the Percentage Interest
evidenced by such Class [I A-1][I A-2][I A-3][I A-4][I A-5] Certificateholder's
Certificate and the Class [I A-1][I A-2][I A-3][I A-4][I A-5] Distribution
Amount.
Distributions on this Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register or by wire transfer to Holders of Class [I A-1][I
A-2][I A-3][I A-4][I A-5] Certificates with original denominations aggregating
at least $5 million who have given the Trustee written instructions at least
five Business Days prior to the related Record Date. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and specified in such notice of final distribution.
[For Class I A-5 only] Unless the Opinion of Counsel as to certain
ERISA matters required by Section 4.02(b) of the Agreement has been delivered to
the Trustee in connection with this Certificate, the Holder of this Certificate
represents, by virtue of its acceptance hereof, that it is not an employee
benefit plan subject to Section 406 of ERISA or Section 4975 of the Code or a
Person acting on behalf of such a plan or using the assets of such a plan to
acquire this Certificate.
Reference is hereby made to the further provisions of this Certificate
set forth hereafter, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless this Certificate has been countersigned by or on behalf of the
Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated:
THE BANK OF NEW YORK,
as Trustee
By __________________________________
Authorized Officer
[Form of Certificate of
Countersignature]
This is one of the Certificates
referred to in the within-
mentioned Agreement.
By ___________________________ By __________________________________,
OR
Authenticating Agent Trustee
__________________________________ __________________________________
Authorized Signatory Authorized Signatory
[Signature page to Class [I A-1][I A-2][I A-3][I A-4][I A-5] Certificate,
Manufactured Housing Contract Senior/Subordinate Pass-Through Certificates,
Series 1999D]
<PAGE>
EXHIBIT B-2
FORM OF FACE OF CLASS II A-1 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.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
Number____
Date of Pooling and Original Denomination
Servicing Agreement and $____________________
Cut-off Date:
October 26, 1999 Original Class II
Principal Balance:
Class II A-1 $[__________]
Remittance Rate: As specified
in the Pooling and Servicing
Agreement referred to herein
Remittance Date after
Latest Due Date: ____ __, ____
First Remittance Date: CUSIP _______________
December 7, 1999
<PAGE>
MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
SERIES 1999D, CLASS II A-1
(SENIOR)
evidencing a percentage interest in any
distributions allocable to the Class II A-1
Certificates with respect to a pool of fixed
rate conventional manufactured housing contracts
formed and sold by
VANDERBILT MORTGAGE AND FINANCE, INC.
which manufactured housing contracts either were originated or acquired by and
are initially serviced by Vanderbilt Mortgage and Finance, Inc. (the
"Servicer").
This Certificate does not represent an obligation of or interest in
Vanderbilt Mortgage and Finance, Inc., the Servicer or the Trustee referred to
below or any of their Affiliates. Neither this Certificate nor the underlying
manufactured housing contracts are guaranteed or insured by Vanderbilt Mortgage
and Finance, Inc., the Servicer or by any governmental agency or
instrumentality.
THE PORTION OF THE ORIGINAL CLASS II A-1 PRINCIPAL BALANCE EVIDENCED BY
THIS CERTIFICATE ("CERTIFICATE BALANCE") WILL BE REDUCED BY DISTRIBUTIONS ON
THIS CERTIFICATE THAT ARE ALLOCABLE TO PRINCIPAL. ACCORDINGLY, FOLLOWING THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN ABOVE. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. On the date of the initial issuance of the
Certificates, the Paying Agent is the Trustee.
This certifies that CEDE & CO. is the registered owner of an undivided
interest in certain monthly distributions with respect to a pool (the "Contract
Pool") of conventional manufactured housing installment sales contracts,
installment loan agreements and mortgage loans (collectively, the "Contracts")
formed and sold by Vanderbilt Mortgage and Finance, Inc. (hereinafter called the
"Company," which term includes any successor entity under the Agreement referred
to below) and certain other property (collectively, the "Trust Fund"). The
Contracts either were originated or acquired by and are serviced by the Servicer
and are secured by Manufactured Homes. The Trust Fund was created pursuant to a
Pooling and Servicing Agreement dated as specified above (the "Agreement"), by
and among the Company, as servicer, Clayton Homes, Inc., as provider of the
Limited Guarantee and The Bank of New York, as trustee (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as Manufactured Housing Contract Senior/Subordinate Pass-Through
Certificates, Series 1999D (the "Certificates"), and is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
On each Remittance Date, the Trustee will cause to be distributed from
funds in the Certificate Account to each Class II A-1 Certificateholder an
amount equal to the product of the Percentage Interest evidenced by such Class
II A-1 Certificateholder's Certificate and the Class II A-1 Distribution Amount.
Distributions on this Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register or by wire transfer to Holders of Class II A-1
Certificates with original denominations aggregating at least $5 million who
have given the Trustee written instructions at least five Business Days prior to
the related Record Date. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Trustee for that purpose and specified
in such notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth hereafter, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless this Certificate has been countersigned by or on behalf of the
Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated:
THE BANK OF NEW YORK,
as Trustee
By __________________________________
Authorized Officer
[Form of Certificate of
Countersignature]
This is one of the Certificates
referred to in the within-
mentioned Agreement.
By ___________________________ By __________________________________,
OR
Authenticating Agent Trustee
__________________________________ __________________________________
Authorized Signatory Authorized Signatory
[Signature page to Class II A-1 Certificate, Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificates, Series 1999D]
<PAGE>
EXHIBIT B-3
FORM OF FACE OF CLASS I M-1 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.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
CLASS I A CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
Number_____
Date of Pooling and Original Denomination
Servicing Agreement and $____________________
Cut-off Date:
October 26, 1999 Original Class M-1
Principal Balance:
Class I M-1 $[__________]
Remittance Rate: As specified
in the Pooling and Servicing
Agreement referred to herein
Remittance Date after
Latest Due Date: ____ __, ____
First Remittance Date: CUSIP _______________
December 7, 1999
<PAGE>
MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
SERIES 1999D, CLASS I M-1
(SUBORDINATE)
evidencing a percentage interest in any distributions
allocable to the Class I M-1 Certificates with respect to a
pool of fixed rate conventional manufactured housing
contracts formed and sold by
VANDERBILT MORTGAGE AND FINANCE, INC.
which manufactured housing contracts either were originated or acquired by and
are initially serviced by Vanderbilt Mortgage and Finance, Inc. (the
"Servicer").
This Certificate does not represent an obligation of or interest in
Vanderbilt Mortgage and Finance, Inc., the Servicer or the Trustee referred to
below or any of their Affiliates. Neither this Certificate nor the underlying
manufactured housing contracts are guaranteed or insured by Vanderbilt Mortgage
and Finance, Inc., the Servicer or by any governmental agency or
instrumentality.
THE PORTION OF THE ORIGINAL CLASS I M-1 PRINCIPAL BALANCE EVIDENCED BY
THIS CERTIFICATE ("CERTIFICATE BALANCE") WILL BE REDUCED BY DISTRIBUTIONS ON
THIS CERTIFICATE THAT ARE ALLOCABLE TO PRINCIPAL. ACCORDINGLY, FOLLOWING THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN ABOVE. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. On the date of the initial issuance of the
Certificates, the Paying Agent is the Trustee.
This certifies that CEDE & CO. is the registered owner of an undivided
interest in certain monthly distributions with respect to a pool (the "Contract
Pool") of conventional manufactured housing installment sales contracts,
installment loan agreements and mortgage loans (collectively, the "Contracts")
formed and sold by Vanderbilt Mortgage and Finance, Inc. (hereinafter called the
"Company," which term includes any successor entity under the Agreement referred
to below) and certain other property (collectively, the "Trust Fund"). The
Contracts either were originated or acquired by and are serviced by the Servicer
and are secured by Manufactured Homes. The Trust Fund was created pursuant to a
Pooling and Servicing Agreement dated as specified above (the "Agreement"), by
and among the Company, as servicer, Clayton Homes, Inc., as provider of the
Limited Guarantee and The Bank of New York, as trustee (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as Manufactured Housing Contract Senior/Subordinate Pass-Through
Certificates, Series 1999D (the "Certificates"), and is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
On each Remittance Date, the Trustee will cause to be distributed from
funds in the Certificate Account to each Class I M-1 Certificateholder an amount
equal to (i) the product of the Percentage Interest evidenced by such Class I
M-1 Certificateholder's Certificate and (ii) subject to the prior rights of
Holders of Class IA Certificates as specified in the Agreement, the Class I M-1
Distribution Amount.
Distributions on this Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register or by wire transfer to Holders of Class I M-1
Certificates with original denominations aggregating at least $5 million who
have given the Trustee written instructions at least five Business Days prior to
the related Record Date. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Trustee for that purpose and specified
in such notice of final distribution.
Unless the Opinion of Counsel as to certain ERISA matters required by
Section 4.02(b) of the Agreement has been delivered to the Trustee in connection
with this Certificate, the Holder of this Certificate represents, by virtue of
its acceptance hereof, that it is not an employee benefit plan subject to
Section 406 of ERISA or Section 4975 of the Code or a Person acting on behalf of
such a plan or using the assets of such a plan to acquire this Certificate.
Reference is hereby made to the further provisions of this Certificate
set forth hereafter, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless this Certificate has been countersigned by or on behalf of the
Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated:
THE BANK OF NEW YORK,
as Trustee
By__________________________________
Authorized Officer
[Form of Certificate of
Countersignature]
This is one of the Certificates
referred to in the within-
mentioned Agreement.
By ___________________________ By__________________________________,
OR
Authenticating Agent Trustee
__________________________________ __________________________________
Authorized Signatory Authorized Signatory
[Signature page to Class I M-1 Certificate, Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificates, Series 1999D]
<PAGE>
EXHIBIT C-1
FORM OF FACE OF CLASS [I B-1][I B-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.
[FOR CLASS I B-1 CERTIFICATES ONLY: UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO
THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
[FOR CLASS I B-1 CERTIFICATES ONLY: THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO
THE CLASS I A AND CLASS I M-1 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.]
[FOR CLASS I B-2 CERTIFICATES ONLY THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO
THE CLASS I A, CLASS I M-1 AND CLASS I B-1
CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.]
[FOR CLASS I B-2 CERTIFICATES ONLY: TO THE LIMITED
EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT THIS CERTIFICATE IS ENTITLED TO THE
BENEFITS OF THE LIMITED GUARANTEE OF CHI AS SET
FORTH IN SECTION 6.06 THEREOF.]
Number______
Date of Pooling and Original Denomination
Servicing Agreement and $____________________
Cut-off Date:
October 26, 1999 Original Class
[I B-1][I B-2] Principal
Balance:
Class [I B-1] [I B-2] Remittance
Rate: As specified in the $[_________] $[____________]
Pooling and Servicing Agreement
referred to herein.
Remittance Date after
Latest Due Date: ____ __, ____
First Remittance Date:
December 7, 1999
CUSIP ______________
MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
Series 1999D CLASS [I B-1][I B-2] (SUBORDINATE)
evidencing a percentage interest in any
distributions allocable to the Class [I B-1][I
B-2] Certificates with respect to a pool of fixed
rate conventional manufactured housing contracts
formed and sold by
VANDERBILT MORTGAGE AND FINANCE, INC.
which manufactured housing contracts either were originated or acquired by and
are initially serviced by Vanderbilt Mortgage and Finance, Inc. (the
"Servicer").
Except as set forth in the Pooling and Servicing Agreement, this
Certificate does not represent an obligation of or interest in Vanderbilt
Mortgage and Finance, Inc., the Servicer or the Trustee referred to below or any
of their Affiliates. Neither this Certificate nor the underlying manufactured
housing contracts are guaranteed or insured by Vanderbilt Mortgage and Finance,
Inc., the Servicer or by any governmental agency or instrumentality.
THE PORTION OF THE ORIGINAL CLASS [I B-1][I B-2] PRINCIPAL BALANCE
EVIDENCED BY THIS CERTIFICATE ("CERTIFICATE BALANCE") WILL BE REDUCED BY
DISTRIBUTIONS ON THIS CERTIFICATE THAT ARE ALLOCABLE TO PRINCIPAL. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE BALANCE OF
THIS CERTIFICATE WILL BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN ABOVE.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE
BY INQUIRY OF THE PAYING AGENT. On the date of the initial issuance of the
Certificates, the Paying Agent is the Trustee.
This certifies that [CEDE & CO./VANDERBILT SPC, INC.] is the registered
owner of an undivided interest in certain monthly distributions with respect to
a pool (the "Contract Pool") of conventional manufactured housing installment
sales contracts, installment loan agreements and mortgage loans (collectively,
the "Contracts") formed and sold by Vanderbilt Mortgage and Finance, Inc.
(hereinafter called the "Company," which term includes any successor entity
under the Agreement referred to below) and certain other property (collectively,
the "Trust Fund"). The Contracts either were originated or acquired by and are
serviced by the Servicer and are secured by Manufactured Homes. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement dated as specified
above (the "Agreement"), by and among the Company, as seller and servicer,
Clayton Homes, Inc., as provider of the Limited Guarantee, and The Bank of New
York, as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as Manufactured Housing Contract Senior/Subordinate Pass-Through
Certificates, Series 1999D (the "Certificates"), and is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
On each Remittance Date, the Trustee will cause to be distributed to
each Class [I B-1][I B-2] Certificateholder an amount equal to the product of
(i) the Percentage Interest evidenced by such Class [I B-1][I B-2]
Certificateholder's Certificate and (ii) subject to the prior rights of Holders
of Class I A, Class I M-1 [and Class I B-1] Certificates as specified in the
Agreement, the Class [I B-1][I B-2] Distribution Amount.
Distributions on this Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register or by wire transfer to Holders of Class [I B-1] [I B-2]
Certificates with original denominations aggregating at least $5 million who
have given the Trustee written instructions at least five Business Days prior to
the related Record Date. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Trustee for that purpose and specified
in such notice of final distribution.
Unless the Opinion of Counsel as to ERISA matters required by Section
4.02(b) of the Agreement has been delivered to the Trustee in connection with
this Certificate, the holder of this Certificate represents, by virtue of its
acceptance hereof, that it is not an employee benefit plan subject to Section
406 of ERISA or Section 4975 of the Code or a person acting on behalf of such a
plan or using the assets of such a plan to acquire this Certificate.
Reference is hereby made to the further provisions of this Certificate
set forth hereafter, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless this Certificate has been countersigned by or on behalf of the
Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated:
THE BANK OF NEW YORK,
as Trustee
By__________________________________
Authorized Officer
[Form of Certificate of
Countersignature]
This is one of the Certificates
referred to in the within-
mentioned Agreement.
By ___________________________ By__________________________________,
OR
Authenticating Agent Trustee
__________________________________ __________________________________
Authorized Signatory Authorized Signatory
[Signature page to Class [I B-1][I B-2]
Certificate, Manufactured Housing
Contract Senior/Subordinate
Pass-Through Certificates,
Series 1999D]
<PAGE>
EXHIBIT C-2
FORM OF FACE OF CLASS [II B-1][II B-2][II B-3] [II B-4] 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.
[FOR CLASS II B-1, CLASS II B-2 AND CLASS II B-3
CERTIFICATES ONLY: UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE
TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
[[FOR CLASS II B-1 CERTIFICATES ONLY] THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO
THE CLASS II A CERTIFICATES AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.]
[FOR CLASS II B-2 CERTIFICATES ONLY] THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO
THE CLASS II A AND CLASS II B-1 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
[FOR CLASS II B-3 CERTIFICATES ONLY] THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO
THE CLASS II A, CLASS II B-1 AND CLASS II B-2
CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
[FOR CLASS II B-4 CERTIFICATES ONLY] THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO
THE CLASS II A, CLASS II B-1, CLASS II B-2 AND
CLASS II B-3 CERTIFICATES AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
[FOR CLASS II B-4 CERTIFICATES ONLY: TO THE
LIMITED EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT THIS CERTIFICATE IS ENTITLED
TO THE BENEFITS OF THE LIMITED GUARANTEE OF CHI AS
SET FORTH IN SECTION 6.06 THEREOF.]
Number______
Date of Pooling and Original Denomination
Servicing Agreement and $____________________
Cut-off Date:
October 26, 1999 Original Class
[II B-1][II B-2] [II
B-3] [II B-4] Principal
Balance:
Class [II B-1] [II B-2]
[II B-3] [II B-4] Remittance
Rate: As specified in the $[_________] $[____________]
Pooling and Servicing Agreement
referred to herein.
Remittance Date after
Latest Due Date: ____ __, ____
First Remittance Date:
December 7, 1999
MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
Series 1999D CLASS [II B-1][II B-2][II B-3] [II B-4] (SUBORDINATE)
evidencing a percentage interest in any distributions
allocable to the Class [II B-1][II B-2][II B-3] [II
B-4]Certificates with respect to a pool of fixed rate
conventional manufactured housing contracts formed
and sold by
VANDERBILT MORTGAGE AND FINANCE, INC.
which manufactured housing contracts either were originated or acquired by and
are initially serviced by Vanderbilt Mortgage and Finance, Inc. (the
"Servicer").
Except as set forth in the Pooling and Servicing Agreement, this
Certificate does not represent an obligation of or interest in Vanderbilt
Mortgage and Finance, Inc., the Servicer or the Trustee referred to below or any
of their Affiliates. Neither this Certificate nor the underlying manufactured
housing contracts are guaranteed or insured by Vanderbilt Mortgage and Finance,
Inc., the Servicer or by any governmental agency or instrumentality.
THE PORTION OF THE ORIGINAL CLASS [II B-1][II B-2][II B-3] [II B-4]
PRINCIPAL BALANCE EVIDENCED BY THIS CERTIFICATE ("CERTIFICATE BALANCE") WILL BE
REDUCED BY DISTRIBUTIONS ON THIS CERTIFICATE THAT ARE ALLOCABLE TO PRINCIPAL.
ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE ORIGINAL DENOMINATION
SHOWN ABOVE. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. On the date of the initial
issuance of the Certificates, the Paying Agent is the Trustee.
This certifies that [CEDE & CO./VANDERBILT SPC, INC.] is the registered
owner of an undivided interest in certain monthly distributions with respect to
a pool (the "Contract Pool") of conventional manufactured housing installment
sales contracts, installment loan agreements and mortgage loans (collectively,
the "Contracts") formed and sold by Vanderbilt Mortgage and Finance, Inc.
(hereinafter called the "Company," which term includes any successor entity
under the Agreement referred to below) and certain other property (collectively,
the "Trust Fund"). The Contracts either were originated or acquired by and are
serviced by the Servicer and are secured by Manufactured Homes. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement dated as specified
above (the "Agreement"), by and among the Company, as seller and servicer,
Clayton Homes, Inc., as provider of the Limited Guarantee, and The Bank of New
York, as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as Manufactured Housing Contract Senior/Subordinate Pass-Through
Certificates, Series 1999D (the "Certificates"), and is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
On each Remittance Date, the Trustee will cause to be distributed to
each Class [II B-1][II B-2][II B-3] [II B-4] Certificateholder an amount equal
to the product of (i) the Percentage Interest evidenced by such Class [II
B-1][II B-2][II B-3] [II B-4]Certificateholder's Certificate and (ii) subject to
the prior rights of Holders of Class II A-1 [and Class II B-1][Class II B-2]
[Class II B-3] Certificates as specified in the Agreement, the Class [II B-1][II
B-2][II B-3] [II B-4] Distribution Amount.
Distributions on this Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register or by wire transfer to Holders of Class [II B-1] [II
B-2][II B-3] [II B-4] Certificates with original denominations aggregating at
least $5 million who have given the Trustee written instructions at least five
Business Days prior to the related Record Date. Notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and specified in such notice of final distribution.
Unless the Opinion of Counsel as to ERISA matters required by Section
4.02(b) of the Agreement has been delivered to the Trustee in connection with
this Certificate, the holder of this Certificate represents, by virtue of its
acceptance hereof, that it is not an employee benefit plan subject to Section
406 of ERISA or Section 4975 of the Code or a person acting on behalf of such a
plan or using the assets of such a plan to acquire this Certificate.
Reference is hereby made to the further provisions of this Certificate
set forth hereafter, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless this Certificate has been countersigned by or on behalf of the
Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
THE BANK OF NEW YORK,
as Trustee
By__________________________________
Authorized Officer
[Form of Certificate of
Countersignature]
This is one of the Certificates
referred to in the within-
mentioned Agreement.
By____________________________ By__________________________________,
OR
Authenticating Agent Trustee
__________________________________ __________________________________
Authorized Signatory Authorized Signatory
[Signature page to Class [II B-1][II B-2] [II B-3] [II B-4] Certificate,
Manufactured Housing Contract Senior/Subordinate Pass-Through Certificates,
Series 1999D]
<PAGE>
EXHIBIT D
FORM OF FACE OF CLASS R CERTIFICATE
THIS CLASS R CERTIFICATE HAS NOT BEEN 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 OR LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS
WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT OR
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 4.02 OF THE
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT
TO THE CLASS A, CLASS I M-1 AND CLASS B CERTIFICATES
AS DESCRIBED IN 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.
NEITHER THIS CERTIFICATE NOR ANY BENEFICIAL INTEREST
HEREIN MAY BE, DIRECTLY OR INDIRECTLY, TRANSFERRED,
SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED
WITHOUT THE EXPRESS WRITTEN CONSENT OF THE SERVICER,
ACTING ON BEHALF OF THE TRUST FUND, AND ANY TRANSFER
IN VIOLATION OF THIS RESTRICTION SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE, AND SHALL SUBJECT THE HOLDER
HEREOF TO LIABILITY FOR ANY TAX IMPOSED (AND RELATED
EXPENSES, IF ANY) WITH RESPECT TO SUCH ATTEMPTED
TRANSFER.
Number______ Percentage Interest: 100%
Date of Pooling and
Servicing Agreement and
Cut-off Date:
October 26, 1999
Remittance Date after
Latest Due Date: ____ __, ____
First Remittance Date:
December 7, 1999
MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
Series 1999D Class R (SUBORDINATE)
evidencing the entire percentage interest in any
distributions allocable to the Class R Certificate
with respect to a pool of fixed rate and a pool of
adjustable rate conventional manufactured housing
contracts, in each case formed and sold by
VANDERBILT MORTGAGE AND FINANCE, INC.
which manufactured housing contracts either were originated or acquired by and
are initially serviced by Vanderbilt Mortgage and Finance, Inc. (the
"Servicer").
This Certificate does not represent an obligation of or interest in
Vanderbilt Mortgage and Finance, Inc., the Servicer or the Trustee referred to
below or any of their Affiliates. Neither this Certificate nor the underlying
manufactured housing contracts are guaranteed or insured by Vanderbilt Mortgage
and Finance, Inc. or the Servicer or by any governmental agency or
instrumentality.
This certifies that Vanderbilt SPC, Inc. is the registered owner of an
undivided interest in certain monthly distributions with respect to a pool (the
"Contract Pool") of conventional manufactured housing installment sales
contracts, installment loan agreements and mortgage loans (collectively, the
"Contracts") formed and sold by Vanderbilt Mortgage and Finance, Inc.
(hereinafter called the "Company," which term includes any successor entity
under the Agreement referred to below) and certain other property (collectively,
the "Trust Fund"). The Contracts either were originated or acquired by and are
serviced by Vanderbilt Mortgage and Finance, Inc. (the "Servicer") and are
secured by Manufactured Homes. The Trust Fund was created pursuant to a Pooling
and Servicing Agreement dated as specified above (the "Agreement"), by and among
the Company, as seller and servicer, Clayton Homes, Inc., as provider of the
Limited Guarantee, and The Bank of New York, as trustee (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as Manufactured Housing Contract Senior/Subordinate Pass-Through
Certificates, Series 1999D (the "Certificates"), and is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
On each Remittance Date, the Trustee will cause to be distributed to
the Class R Certificateholder an amount equal to the Class R Distribution
Amount.
Distributions on this Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register or by wire transfer if the Holder has given the Trustee
written instructions at least five business days prior to the related Record
Date. Notwithstanding the above, the final distribution on this Certificate will
be made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose and specified in such notice of final
distribution.
No transfer of the Class R Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended, and any applicable state securities laws or is made pursuant
to an effective registration statement under said Act or laws. The Trustee or
the Company may require an Opinion of Counsel acceptable to and in form and
substance satisfactory to the Company that such transfer is exempt (describing
the applicable exemption and the basis therefor) from the registration
requirements of the Securities Act of 1933, as amended, and from any applicable
securities statute of any state, and the transferee shall execute an investment
letter in the form described by the Agreement.
Unless the Opinion of Counsel as to ERISA matters required by Section
4.02(b) of the Agreement has been delivered to the Trustee in connection with
this Certificate, the Holder of this Certificate represents, by virtue of its
acceptance hereof, that it is not an employee benefit plan subject to Section
406 of ERISA or Section 4975 of the Code or a Person acting on behalf of such a
plan or using the assets of such a plan to acquire this Certificate. In
addition, no transfer of this Class R Certificate shall be made without the
consent of the Servicer pursuant to Sections 4.02 and 4.08 of the Agreement.
Reference is hereby made to the further provisions of this Certificate
set forth hereafter, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless this Certificate has been countersigned by or on behalf of the
Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated:
THE BANK OF NEW YORK,
as Trustee
By__________________________________
Authorized Officer
[Form of Certificate of
Countersignature]
This is one of the Certificates
referred to in the within-
mentioned Agreement.
By____________________________ By__________________________________,
OR
Authenticating Agent Trustee
__________________________________ __________________________________
Authorized Signatory Authorized Signatory
[Signature page to Class R Certificate,
Manufactured Housing Contract
Senior/Subordinate Pass-Through
Certificates, Series 1999D]
<PAGE>
EXHIBIT E
[FORM OF REVERSE OF CLASS A, CLASS B AND CLASS R CERTIFICATE]
As provided in the Agreement, deductions and withdrawals from the
Certificate Account will be made from time to time for purposes other than
distributions to Certificateholders, such purposes including payment of the
Monthly Servicing Fee, reimbursement to the Servicer for certain expenses
incurred by it, and reimbursement to the Servicer for previous advances with
respect to delinquent payments on the Contracts.
The Trustee will cause to be kept at its Corporate Trust Office in New
York City, or at the office of its designated agent, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Trustee
will provide for the registration of Certificates and of transfers and exchanges
of Certificates. Upon surrender for registration of transfer of any Certificate
at any office or agency of the Trustee maintained for such purpose, the Trustee
will, subject to the limitations set forth in the Agreement, countersign and
deliver, in the name of the designated transferee or transferees, a Certificate
dated the date of countersignature by the Trustee.
No service charge will be made to the Holder for any registration of
transfer or exchange of this Certificate, but the Trustee may require payment of
a sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any registration of transfer or exchange of the Certificate.
Prior to due presentation of a Certificate for registration of transfer, the
Company, the Servicer and the Trustee may treat the Person in whose name any
Certificate is registered as the owner of such Certificate and the Percentage
Interest in the Trust Fund evidenced thereby for the purpose of receiving
distributions pursuant to the Agreement and for all other purposes whatsoever,
and neither the Company, the Servicer nor the Trustee will be affected by notice
to the contrary.
The Agreement may be amended from time to time by the Company, the
Servicer and the Trustee, without the consent of any of the Certificateholders,
(i) to cure any ambiguity, error or mistake or to correct or supplement any
provisions therein which may be inconsistent with any other provisions therein,
(ii) to add to the duties or obligations of the Servicer under the Agreement,
(iii) to obtain a rating by a nationally recognized rating agency or to maintain
or improve the rating of Group I or Group II Certificates then given by a rating
agency (it being understood that, after obtaining the rating of any Group I or
Group II Certificates at the Closing Date, none of the Trustee, the Company or
the Servicer is obligated to obtain, maintain or improve any rating of the Group
I or Group II Certificates), (iv) to facilitate the operation of a guarantee of
the Class I B-2 or Class II B-4 Certificates by any Person (it being understood
that the creation of any such guarantee is solely at the option of the Company
and that such guarantee will not benefit in any way or result in any payments on
any other Class of Certificates) or (v) to make any other provisions with
respect to matters or questions arising under the Agreement which are not
materially inconsistent with the provisions of the Agreement, including without
limitation provisions relating to the issuance of definitive Certificates to
Certificate Owners provided that book-entry registration of Group I and Group II
Certificates is no longer permitted, provided that such action does not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect the
interests of any Certificateholder (including, without limitation, the
maintenance of the status of the Trust Fund as a REMIC under the Code). The
Agreement may also be amended from time to time by the Company, the Servicer and
the Trustee, without consent of the Certificateholders, to modify, eliminate or
add to the provisions of the Agreement to such extent as shall be necessary to
maintain the qualification of the Trust Fund as a REMIC under the Code or avoid,
or minimize the risk of, the imposition of any tax on the Trust Fund or to
prevent the Trust Fund from entering into certain prohibited transactions under
the Code, provided that such amendment shall not adversely affect in any
material respect the interests of any Certificateholder and there shall have
been delivered to the Trustee an Opinion of Counsel to the effect that such
action is necessary or appropriate for such purposes.
The Agreement may also be amended from time to time by the Company, the
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing not less than 51% of the Trust Fund, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment may (i) reduce in any
manner the amount of, or delay the timing of, distributions which are required
to be made on any Certificate without the consent of the Holder of such
Certificate or (ii) reduce the aforesaid percentage of Certificates, the Holders
of which are required to consent to any such amendment, without the consent of
the Holders of all Certificates of such Class then outstanding or (iii)
adversely affect the status of the Trust Fund as a REMIC or cause a tax to be
imposed on the Trust Fund under the REMIC provisions.
The respective obligations and responsibilities of the Company, the
Servicer and the Trustee under the Agreement will terminate upon: (i) the later
of the final payment or other liquidation (or any advance with respect thereto)
of the last Contract or the disposition of all property acquired upon
repossession of any Contract and the remittance of all funds due thereunder; or
(ii) at the option of the Company or the Servicer, on any Remittance Date after
the first Remittance Date on which the sum of the Pool Scheduled Principal
Balances of the Group I and Group II Contracts is less than 10% of the sum of
the Total Original Contract Pool Principal Balances of the Group I and Group II
Contracts, so long as the Company or the Servicer, as the case may be, deposits
in the Certificate Accounts the repurchase price specified in the Agreement.
<PAGE>
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
(PLEASE INSERT SOCIAL SECURITY* OR TAXPAYER IDENTIFICATION NUMBER OF
ASSIGNEE) (*This information, which is voluntary, is being requested to ensure
that the assignee will not be subject to backup withholding under Section 3406
of the Code.)
__________________________________
__________________________________
_______________________________________________________________________________
(Please Print or Typewrite Name and Address of Assignee)
_______________________________________________________________________________
the within Certificate, and all rights thereunder, and hereby does irrevocably
constitute and appoint
____________________________________________________________________Attorney
to transfer the within Certificate on the books kept for the registration
thereof, with full power of substitution in the premises.
Dated:
(Signature guaranty) __________________________________
NOTICE: The signature to this
assignment must correspond with the
name as it appears upon the face of the
within Certificate in every particular,
without alteration or enlargement or
any change whatever.
<PAGE>
EXHIBIT F
[SERVICER]
CERTIFICATE REGARDING SUBSTITUTION OF ELIGIBLE
SUBSTITUTE CONTRACT
The undersigned certify that they are [title] and [title],
respectively, of Vanderbilt Mortgage and Finance, Inc. (the "Company"), and that
as such they are duly authorized to execute and deliver this certificate on
behalf of the Company pursuant to Section 3.05(b) of the Pooling and Servicing
Agreement (the "Agreement"), dated as of October 26, 1999, among Vanderbilt
Mortgage and Finance, Inc., as Seller and Servicer, and The Bank of New York, as
Trustee (all capitalized terms used herein without definition having the
respective meanings specified in the Agreement), and further certify that:
1. The Contracts on the attached schedule are to be substituted on the
date hereof pursuant to Section 3.05(b) of the Agreement and each such Contract
is an Eligible Substitute Contract [description, as to each Contract, as to how
it satisfies the definition of "Eligible Substitute Contract"].
2. The Contract File for each such Contract being substituted for a
Replaced Contract is in the custody of the Servicer and each such Contract has
been stamped in accordance with Section 3.02(y) of the Agreement.
3. The UCC-1 financing statement in respect of the Contracts to be
substituted, in the form required by Section 3.05(b)(ii) of the Agreement, has
been filed with the appropriate office in Tennessee.
[4. There has been deposited in the appropriate Certificate Account the
amounts listed on the schedule attached hereto as the amount by which the
Scheduled Principal Balance of each Replaced Contract exceeds the Scheduled
Principal Balance of each Contract being substituted therefor.]
<PAGE>
IN WITNESS WHEREOF, I have affixed hereunto my signature this ____ day
of ________, 19__.
[SERVICER]
By__________________________________
[Name]
[Title]
<PAGE>
EXHIBIT G
[SERVICER]
CERTIFICATE OF SERVICING OFFICER
The undersigned certifies that he is a [title] of [Servicer], a [ ]
corporation (the "Servicer"), and that as such he is duly authorized to execute
and deliver this certificate on behalf of the Servicer pursuant to Section 7.02
of the Pooling and Servicing Agreement (the "Agreement"), dated as of October
26, 1999, by and among Vanderbilt Mortgage and Finance, Inc., as Seller and
Servicer, Clayton Homes, Inc., as provider of the Limited Guarantee, and The
Bank of New York, as trustee (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 7.01 and 7.02 of the
Agreement; and
2. As of the date hereof, no Event of Default or event that
with notice or lapse of time or both would become an Event of Default
has occurred.
IN WITNESS WHEREOF, I have affixed hereunto my signature this __ day of
_________, ____.
[SERVICER]
By__________________________________
[Name]
[Title]
<PAGE>
EXHIBIT H
TRANSFER AFFIDAVIT
STATE OF )
: ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of ___________________
_________________, a corporation duly organized and existing under the laws of
the State of _________, the proposed transferee (the "Transferee") of the Class
R Certificate from the Manufactured Housing Contract Senior/Subordinate
Pass-Through Certificates, Series 1999D, issued pursuant to the Pooling and
Servicing Agreement, dated as of October 26, 1999 (the "Agreement"), by and
among Vanderbilt Mortgage and Finance, Inc., as seller and servicer, Clayton
Homes, Inc., as provider of the Limited Guarantee and The Bank of New York.
Capitalized terms used, but not defined herein or in Exhibit 1 hereto, shall
have the meanings ascribed to such terms in the Agreement. The Transferee has
authorized the undersigned to make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring the
Class R Certificate either (i) for its own account or (ii) as nominee, trustee
or agent for another Person and has attached hereto an affidavit from such
Person in substantially the same form as this affidavit. The Transferee has no
knowledge that any such affidavit is false.
3. The Transferee has been advised and understands that (i) a tax shall
be imposed on Transfers of the Class R Certificate to Persons that are not
Permitted Transferees; (ii) such tax is imposed on the transferor, or, if such
Transfer is through an agent (which includes a broker, nominee or middleman) for
a Person that is not a Permitted Transferee, on the agent; and (iii) the Person
otherwise liable for the tax shall be relieved of liability for the tax if the
subsequent Transferee furnished to such Person an affidavit that such subsequent
Transferee is a Permitted Transferee and, at the time of Transfer, such Person
does not have actual knowledge that the affidavit is false.
4. The Transferee has been advised of, and understands that a tax shall
be imposed on a "pass-through entity" holding the Class R Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that no tax will be imposed for any period for which the
record holder furnishes to the pass-through entity an affidavit stating that the
record holder is a Permitted Transferee and the pass-through entity does not
have actual knowledge that such affidavit is false. (For this purpose, a
"pass-through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. Transferee has reviewed the provisions of Section 4.08 of the
Agreement (attached hereto as Exhibit 1 and incorporated herein by reference)
and understands the legal consequences of the acquisition of the Class R
Certificate, including, without limitation, the restrictions on subsequent
Transfers and the provisions regarding voiding the Transfer and mandatory sales.
The Transferee expressly agrees to be bound by and to abide by the provisions of
Sections 4.02 and 4.08 of the Agreement. The Transferee understands and agrees
that any breach of any of the representations included herein shall render the
Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer the Class R Certificate and
in connection with any Transfer by a Person for whom the Transferee is acting as
nominee, trustee or agent, and the Transferee will not Transfer the Class R
Certificate or cause the Class R Certificate to be Transferred to any Person
that the Transferee knows is not a Permitted Transferee.
7. The Transferee's taxpayer identification number is
__________________.
8. The Purchaser (i) is not a Non-U.S. Person or (ii) is a Non-U.S.
Person that holds the Class R Certificate in connection with the conduct of a
trade or business in the United States and has furnished the transferor and the
Trustee with an effective Internal Revenue Service Form 4224 or successor form
at the time and in the manner required by the Code or (iii) is a Non-U.S. Person
that has delivered to both the transferor and the Trustee an opinion of a
nationally recognized tax counsel to the effect that the transfer of the Class R
Certificate to it is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of the Class R
Certificate will not be disregarded for federal income tax purposes. "Non-U.S.
Person" means an individual, corporation, partnership or other person which is
not a U.S. Person. A "U.S. Person" means (i) a citizen or resident of the United
States, (ii) a corporation, partnership or other entity treated as a corporation
or partnership for United States federal income tax purposes organized in or
under the laws of the United States or any state thereof or the District of
Columbia (other than a partnership that is not treated as a United States person
under any applicable Treasury regulations) or (iii) an estate the income of
which is includible in gross income for United States tax purposes, regardless
of its source, or (iv) a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States persons have authority to control all substantial decisions
of the trust. Notwithstanding the preceding sentence, to the extent provided in
regulations, certain trusts in existence on August 20, 1996 and treated as
United States persons prior to such date that elect to continue to be treated as
United States persons shall be considered United States persons as well.
9. The Purchaser does not have the intention to impede the assessment
or collection of any federal, state or local taxes legally required to be paid
with respect to such Class R Certificate, and the Purchaser hereby acknowledges
that the Class R Certificate may generate tax liabilities in excess of the cash
flow associated with the Class R Certificate and intends to pay such taxes
associated with the Class R Certificate when they become due.
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this ___ day of __________, 199_.
[Name of transferee]
By:__________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
__________________________________
[Assistant] Secretary
Personally appeared before me the above-named _____________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ____________ of the Transferee, and acknowledged that he executed the
same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ____ day of ______, 1999.
__________________________________
NOTARY PUBLIC
My commission expires the __
day of _______________, 19__.
<PAGE>
EXHIBIT I
FORM OF INVESTMENT LETTER OF
CLASS [I B-2][II B-4][R] CERTIFICATEHOLDER
Representations of Purchaser.
1. The Purchaser is acquiring a [CLASS I B-2/CLASS II B-4/CLASS R]
Certificate as principal for its own account for the purpose of investment
[neither the Underwriters nor any of their Affiliates need represent that it is
acquiring for purposes 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.
2. The Purchaser has knowledge and experience in financial and business
matters and is capable of evaluating the merits and risks of its investment in a
[CLASS I B-2/CLASS II B-4/CLASS R] Certificate and is able to bear the economic
risk of such investment. The Purchaser is an "accredited investor" within the
meaning of Rule 501(a) under the rules and regulations of the Securities and
Exchange Commission under the Securities Act of 1933, as amended. The Purchaser
has been given such information concerning the [CLASS I B-2/CLASS II B-4/CLASS
R] Certificate, the underlying Contracts and the Servicer as it has requested.
3. The Purchaser will comply with all applicable federal and state
securities laws in connection with any subsequent resale by the Purchaser of the
[CLASS I B-2/CLASS II B-4/CLASS R] Certificate.
4. The Purchaser understands that the [CLASS I B-2/CLASS II B-4/CLASS
R] Certificate has not been and will not be registered under the Securities Act
of 1933, as amended, or any state securities laws and may be resold (which
resale is not currently contemplated) only if an exemption from registration is
available, that neither the Company, the Servicer nor the Trustee is required to
register the [CLASS I B-2/CLASS II B-4/CLASS R] Certificate and that any
transfer must comply with Sections 4.02 and 4.08 of the Pooling and Servicing
Agreement. In connection with any resale of the [CLASS I B-2/CLASS II B-4/CLASS
R] Certificate, the Purchaser shall not make any general solicitation or
advertisement.
5. The Purchaser represents that it is not an employee benefit plan
subject to Section 406 of the Employee Retirement Income Security Act of 1974,
as amended, or Section 4975 of the Internal Revenue Code of 1986, as amended, or
a person acting on behalf of such a plan or using the assets of such a plan to
acquire the [CLASS I B-2/CLASS II B-4/CLASS R] Certificate.
6. The Purchaser agrees that it will obtain from any purchaser of the
[CLASS I B-2/CLASS II B-4/CLASS R] Certificate from it the same representations,
warranties and agreements contained in the foregoing paragraphs 1 through 5 and
in this paragraph 6.
7. The Purchaser hereby directs the Trustee to register the Class R
Certificate acquired by the Purchaser in the name of its nominee as follows:
_____________.
Very truly yours,
__________________________________
NAME OF PURCHASER
By:__________________________________
Name:________________________________
Title:_______________________________
<PAGE>
EXHIBIT J
List of Sellers and Originators of Acquired Contracts
Seller Originator
------ ----------
TO BE PROVIDED BY VANDERBILT
<PAGE>
EXHIBIT K
POWER OF ATTORNEY
Vanderbilt Mortgage and Finance, Inc. as Seller and Servicer (the
"Seller") under the Pooling and Servicing Agreement dated as of October 26, 1999
(the "Agreement"), between Vanderbilt Mortgage and Finance, Inc. and The Bank of
New York, as Trustee (the "Trustee"), hereby irrevocably constitutes and
appoints the Trustee its true and lawful attorney-in-fact and agent, to execute,
acknowledge, verify, swear to, deliver, record and file, in its name, place and
stead, all instruments, documents and certificates which may from time to time
be required in connection with the Agreement, including, without limitation, to
execute any documents required to be executed or recorded by the Trustee
pursuant to Section 2.02(a) of the Agreement. If required, the Seller shall
execute and deliver to the Trustee upon request therefor, such further
designations, powers of attorney or other instruments as the Trustee shall
reasonably deem necessary for its purposes hereof.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to such terms in the Agreement.
VANDERBILT MORTGAGE AND FINANCE, INC.
By:__________________________________
Name:
Title:
<PAGE>
EXHIBIT L
LIMITED POWER OF ATTORNEY
THIS LIMITED POWER OF ATTORNEY, dated as of this ____ day of _______,
_____, is granted, for the purposes set forth herein, to Vanderbilt Mortgage and
Finance, Inc., whose address is 500 Alcoa Trail, Maryville, Tennessee (the
"Attorney in Fact"), by THE BANK OF NEW YORK, , a bank organized and existing
under the laws of the State of New York, whose address is 101 Barclay Street -
12E, New York, New York 10286, Structured Finance Services, acting in its
capacity as trustee under that certain Pooling and Servicing Agreement dated as
of October 26, 1999 between the Trustee and the Attorney in Fact (the "Pooling
Agreement"). Capitalized terms used and not otherwise defined herein shall have
the meanings set forth in the Pooling Agreement.
In accordance with section 5.01 of the Pooling Agreement, the Trustee
hereby appoints the Attorney in Fact, acting by and through its officers and
employees, as Attorney in Fact for the Trustee, with full authority and power to
execute and deliver on behalf of the Trustee, with respect to the Deeds of
Trust, assignments of mortgage or deed of trust from the Trustee to the Attorney
in Fact for recordation.
This Limited Power of Attorney shall not be deemed to be revoked as to
any particular Deed of Trust unless and until an instrument containing the
revocation is recorded in the office where the Deed of Trust is recorded.
IN WITNESS WHEREOF, the Principal has caused this Limited Power of
Attorney to be executed as of the date first written above.
THE BANK OF NEW YORK,
as Trustee
By:_______________________________
Name:
Title:
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On _________ __, 1999, before me, ____________________, a Notary Public
in and for said County and State. ____________________, known to me to be the
person who executed the foregoing instrument, bearing the date of ___________,
1999, as a _______________ of The Bank of New York, acknowledged this Limited
Power of Attorney to be the act and deed of The Bank of New York and that she
delivered the same as such before me in my jurisdiction aforesaid.
WITNESS my hand and official seal.
__________________________________
Notary Public
[SEAL]
My Commission Expires: ____________________
