EXHIBIT 4.3
GREEN TREE HOME IMPROVEMENT AND HOME EQUITY LOAN TRUST 1998-F
TRUST AGREEMENT
Dated as of December 1, 1998
among
GREEN TREE FINANCIAL CORPORATION,
as Depositor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
TABLE OF CONTENTS
Page
----
ARTICLE I - DEFINITIONS....................................................1-1
SECTION 1.1. Definitions............................................1-1
SECTION 1.2. Usage of Terms.........................................1-4
SECTION 1.3. Calculations...........................................1-4
SECTION 1.4. Section References.....................................1-4
SECTION 1.5. Action by or Consent of Certificateholders.............1-4
ARTICLE II - CREATION OF TRUST.............................................2-1
SECTION 2.1. Creation of Trust......................................2-1
SECTION 2.2. Office.................................................2-1
SECTION 2.3. Purposes and Powers....................................2-1
SECTION 2.4. Appointment of Owner Trustee...........................2-2
SECTION 2.5. Initial Capital Contribution of Trust Estate...........2-2
SECTION 2.6. Declaration of Trust...................................2-2
SECTION 2.7. Liability of the Certificateholders....................2-3
SECTION 2.8. Title to Trust Property................................2-3
SECTION 2.9. Situs of Trust.........................................2-3
SECTION 2.10. Representations and Warranties of the Depositor........2-3
SECTION 2.11. [RESERVED].............................................2-4
SECTION 2.12. [RESERVED].............................................2-4
SECTION 2.13. Covenants of the Certificateholders....................2-4
ARTICLE III - THE CERTIFICATES.............................................3-1
SECTION 3.1. Initial Ownership......................................3-1
SECTION 3.2. The Certificates.......................................3-1
SECTION 3.3. Authentication of Certificates.........................3-1
SECTION 3.4. Registration of Transfer and Exchange of Certificates..3-1
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates......3-3
SECTION 3.6. Persons Deemed Certificateholders......................3-3
SECTION 3.7. Access to List of Certificateholders' Names and
Addresses.............................................3-3
SECTION 3.8. Maintenance of Office or Agency........................3-4
SECTION 3.9. Appointment of Paying Agent............................3-4
ARTICLE IV - ACTIONS BY OWNER TRUSTEE......................................4-1
SECTION 4.1. Restriction on Power of Certificateholders.............4-1
SECTION 4.2. Prior Notice to Certificateholders with Respect to
Certain Matters.......................................4-1
SECTION 4.3. Action by Certificateholders with Respect to
Bankruptcy............................................4-1
SECTION 4.4. Restrictions on Certificateholders' Power..............4-1
ARTICLE V - APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.....................5-1
SECTION 5.1. Trust Accounts.........................................5-1
SECTION 5.2. Application of Funds in Certificate Distribution
Account...............................................5-2
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SECTION 5.3. Method of Payment......................................5-3
SECTION 5.4. No Segregation of Monies; No Interest..................5-3
SECTION 5.5. Accounting; Reports; Tax Returns.......................5-3
ARTICLE VI - AUTHORITY AND DUTIES OF OWNER TRUSTEE.........................6-1
SECTION 6.1. General Authority......................................6-1
SECTION 6.2. General Duties.........................................6-1
SECTION 6.3. Action upon Instruction................................6-1
SECTION 6.4. No Duties Except as Specified in this Agreement or
in Instructions.......................................6-3
SECTION 6.5. No Action Except under Specified Documents or
Instructions..........................................6-3
SECTION 6.6. Restrictions...........................................6-3
SECTION 6.7. Administration Agreement...............................6-4
ARTICLE VII - CONCERNING THE OWNER TRUSTEE.................................7-1
SECTION 7.1. Acceptance of Trust and Duties.........................7-1
SECTION 7.2. Furnishing of Documents................................7-3
SECTION 7.3. Representations and Warranties.........................7-3
SECTION 7.4. Reliance; Advice of Counsel............................7-3
SECTION 7.5. Not Acting in Individual Capacity......................7-4
SECTION 7.6. Owner Trustee Not Liable for Certificates, Notes
or Contracts..........................................7-4
SECTION 7.7. Owner Trustee May Own Certificates and Notes...........7-5
ARTICLE VIII - COMPENSATION OF OWNER TRUSTEE...............................8-1
SECTION 8.1. Owner Trustee's Fees and Expenses......................8-1
SECTION 8.2. Indemnification........................................8-1
SECTION 8.3. Nonrecourse Obligations................................8-1
ARTICLE IX - TERMINATION...................................................9-1
SECTION 9.1. Termination of the Trust...............................9-1
ARTICLE X - SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES............................................................10-1
SECTION 10.1. Eligibility Requirements for Owner Trustee...........10-1
SECTION 10.2. Resignation or Removal of Owner Trustee..............10-1
SECTION 10.3. Successor Owner Trustee..............................10-2
SECTION 10.4. Merger or Consolidation of Owner Trustee.............10-2
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee........10-2
ARTICLE XI - MISCELLANEOUS PROVISIONS.....................................11-1
SECTION 11.1. Amendment............................................11-1
SECTION 11.2. No Recourse..........................................11-2
SECTION 11.3. Governing Law........................................11-2
SECTION 11.4. Severability of Provisions...........................11-2
SECTION 11.5. Certificates Nonassessable and Fully Paid............11-2
SECTION 11.6. Third-Party Beneficiaries............................11-3
SECTION 11.7. Counterparts.........................................11-3
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SECTION 11.8. Notices..............................................11-3
SECTION 11.9. Limitation of Liability..............................11-3
EXHIBIT A - CERTIFICATE OF TRUST ..........................................A-1
EXHIBIT B - FORM OF CERTIFICATE............................................B-1
EXHIBIT C - FORM OF REPRESENTATION LETTER AND CERTIFICATION................C-1
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THIS TRUST AGREEMENT, dated as of December 1, 1998, is made among Green
Tree Financial Corporation, a Delaware corporation, as depositor (the "Seller")
and Wilmington Trust Company, a Delaware banking corporation, as owner trustee
(in such capacity, the "Owner Trustee").
In consideration of the mutual agreements herein contained, and of other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
Unless otherwise expressly defined herein, the terms defined in the Sale
and Servicing Agreement (defined below) shall have the same meanings in this
Agreement. Whenever capitalized and used in this Agreement, the following words
and phrases, unless otherwise specified, shall have the following meanings:
Administration Agreement: The Administration Agreement, dated as of
December 1, 1998, among the Administrator, the Trust, and the Indenture Trustee,
as the same may be amended and supplemented from time to time.
Administrator: Green Tree Financial Servicing Corporation, a Delaware
corporation, or any successor Administrator under the Administration Agreement.
Agreement or this Agreement: This Trust Agreement, all amendments and
supplements thereto and all exhibits and schedules to any of the foregoing.
Authentication Agent: Wilmington Trust Company, or its successor in
interest, and any successor authentication agent appointed as provided in this
Agreement.
Business Trust Statute: Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code ss. 3801 et seq., as the same may be amended from time to time.
Certificates: The Green Tree Home Improvement and Home Equity Loan Trust
1998-F Certificates evidencing the beneficial interest of a Certificateholder in
the Trust, substantially in the form of Exhibit B, attached hereto.
Certificate Distribution Account: The account designated as the
Certificate Distribution Account in, and which is established and maintained
pursuant to, Section 5.1.
Certificate Majority: means holders of Certificates representing more than
50% of the interests of the Certificateholders as a whole.
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Certificate of Trust: The Certificate of Trust substantially in the form
of Exhibit A hereto, filed for the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed pursuant to Section 3.4.
Certificateholder or Holder: A Person in whose name a Certificate is
registered in the Certificate Register.
Code: The Internal Revenue Code of 1986, as amended.
Corporate Trust Office: The principal office of the Owner Trustee at which
at any particular time its corporate trust business shall be administered, which
office at the Closing Date is located at ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust
Administration; the telecopy number for the Corporate Trust Office on the date
of the execution of this Agreement is ▇▇▇-▇▇▇-▇▇▇▇.
Depositor: The Seller in its capacity as depositor hereunder.
ERISA: The meaning assigned to such term in Section 3.4(e).
Expenses: The meaning assigned to such term in Section 8.2.
GTGP: Green Tree Second GP Inc., a Minnesota corporation.
Green Tree: Green Tree Financial Corporation, a Delaware corporation, and
its successors in interest.
Indemnified Parties: The meaning assigned to such term in Section 8.2.
Insolvency Event: With respect to a specified Person, (a) the commencement
of an involuntary case against such Person under the federal bankruptcy laws, as
now or hereinafter in effect, or another present or future federal or state
bankruptcy, insolvency or similar law, and such case is not dismissed within 60
days; or (b) the filing of a decree or entry of an order for relief by a court
having jurisdiction in the premises in respect of such Person or any substantial
part of its property in an involuntary case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official for such Person or for any substantial part of its property, or
ordering the winding-up or liquidation of such Person's affairs; or (c) the
commencement by such Person of a voluntary case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect, or
the consent by such Person to the entry of an order for relief in an involuntary
case under any such law, or the consent by such Person to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial part of
its property, or the making by such Person of any general assignment for the
benefit of creditors, or the failure by such Person generally to pay its
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debts as such debts become due, or the taking of action by such Person in
furtherance of any of the foregoing.
Note Depository Agreement: The agreement among the Trust, the Indenture
Trustee, the Administrator and The Depository Trust Company, dated as of the
Closing Date, relating to the Notes, substantially in the form attached as
Exhibit B to the Indenture.
Owner Trustee: Wilmington Trust Company, or its successor in interest,
acting not individually but solely as trustee hereunder, and any successor
trustee appointed as provided in this Agreement.
Paying Agent: Any paying agent or co-paying agent appointed pursuant to
Section 3.9, which initially shall be U.S. Bank Trust National Association.
Record Date: With respect to any Payment Date, the close of business on
the last Business Day immediately preceding such Payment Date.
Related Documents: The Sale and Servicing Agreement, the Indenture, the
Certificates, the Notes, the Administration Agreement, the Note Depository
Agreement and the Underwriting Agreement. The Related Documents executed by any
party are referred to herein as "such party's Related Documents," "its Related
Documents" or by a similar expression.
Sale and Servicing Agreement: The Sale and Servicing Agreement, dated as
of December 1, 1998 between the Trust and Green Tree, as Seller and as Servicer,
as the same may be amended and supplemented from time to time.
Secretary of State: The Secretary of State of the State of Delaware.
Seller: Green Tree, or its successor in interest.
Servicer's Certificate: The Monthly Report delivered by the Servicer to
the Trust pursuant to Section 5.14 of the Sale and Servicing Agreement.
Trust: The trust created by this Agreement, the estate of which consists
of the Trust Property, which trust shall be known as "Green Tree Home
Improvement and Home Equity Loan Trust 1998- F."
Trust Accounts: The Collection Account, the Certificate Distribution
Account, the Note Distribution Account and the Undelivered Contract Account.
Trust Property: The property and proceeds of every description conveyed
pursuant to Section 2.5 hereof and Section 2.01 of the Sale and Servicing
Agreement, together with the Trust Accounts (including all Eligible Investments
therein and all proceeds therefrom).
Underwriters: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and
▇▇▇▇▇▇ Brothers Inc.
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Underwriting Agreement: The Underwriting Agreement and related Terms
Agreement, each dated December 16, 1998, by and among Green Tree and the
Underwriters relating to the Class A Notes.
Wilmington Trust: Wilmington Trust Company, a Delaware banking
corporation.
SECTION 1.2. Usage of Terms.
With respect to all terms used in this Agreement, the singular includes
the plural and the plural the singular; words importing any gender include the
other genders; references to "writing" include printing, typing, lithography,
and other means of reproducing words in a visible form; references to agreements
and other contractual instruments include all subsequent amendments thereto or
changes therein entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their permitted
successors and assigns; and the terms "include" or "including" mean "include
without limitation" or "including without limitation." To the extent that
definitions are contained in this Agreement, or in any such certificate or other
document, such definitions shall control.
SECTION 1.3. Calculations.
All calculations of the amount of interest accrued on the Certificates
shall be made on the basis of a 360-day year consisting of twelve 30-day months.
SECTION 1.4. Section References.
All references to Articles, Sections, paragraphs, subsections, clauses,
exhibits and schedules shall be to such portions of this Agreement unless
otherwise specified.
SECTION 1.5. Action by or Consent of Certificateholders.
(a) Except as expressly provided herein, any action that may be taken by
the Certificateholders under this Agreement may be taken by a Certificate
Majority. Except as expressly provided herein, any written notice or consent of
the Certificateholders delivered pursuant to this Agreement shall be effective
if signed by Holders of the Certificates evidencing not less than a Certificate
Majority at the time of the delivery of such notice.
(b) Whenever any provision of this Agreement refers to action to be taken,
or consented to, by Certificateholders, such provision shall be deemed to refer
to Certificateholders of record as of the Record Date immediately preceding the
date on which such action is to be taken, or consent given, by
Certificateholders.
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ARTICLE II
CREATION OF TRUST
SECTION 2.1. Creation of Trust.
There is hereby formed a trust to be known as "Green Tree Home Improvement
and Home Equity Loan Trust 1998-F," in which name the Trust may conduct
business, make and execute contracts and other instruments and ▇▇▇ and be sued.
SECTION 2.2. Office.
The office of the Trust shall be in care of the Owner Trustee at the
Corporate Trust Office or at such other address in Delaware as the Owner Trustee
may designate by written notice to the Certificateholders and the Depositor.
SECTION 2.3. Purposes and Powers.
The sole purpose of the Trust is to conserve the Trust Property and
collect and disburse the periodic income therefrom for the use and benefit of
the Certificateholders and the Noteholders and in furtherance of such purpose
the Trust shall have the power and authority to engage in the following
activities:
(i) to issue the Notes pursuant to the Indenture and the Certificates
pursuant to this Agreement and to sell the Notes and the Certificates;
(ii) with the proceeds of the sale of the Notes and the Certificates, to
pay the organizational, start-up and transactional expenses of the Trust and to
pay the balance to the Seller pursuant to the Sale and Servicing Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate to the Indenture Trustee pursuant to the Indenture for the benefit of the
Noteholders and to hold, manage and distribute to the Certificateholders
pursuant to the terms of the Sale and Servicing Agreement any portion of the
Trust Property released from the lien of, and remitted to the Trust pursuant to,
the Indenture;
(iv) to enter into and perform its obligations under the Related Documents
to which it is or is to be a party;
(v) to engage in those activities, including entering into agreements,
that are necessary, suitable or convenient to accomplish the foregoing or are
incidental thereto or connected therewith; and
(vi) subject to compliance with the Related Documents, to engage in such
other activities as may be required in connection with conservation of the Trust
Property and the making of distributions to the Certificateholders and the
Noteholders.
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The Trust is hereby authorized to engage in the foregoing activities and any
activities that are necessary or incidental thereto. The Trust shall not engage
in any activity other than in connection with the foregoing or other than as
required or expressly authorized by the terms of this Agreement or the Related
Documents. Similarly, the Owner Trustee shall have no discretionary duties other
than performing those ministerial acts set forth above necessary to accomplish
the purpose of this Trust as set forth in the introductory sentence of this
Section.
SECTION 2.4. Appointment of Owner Trustee.
The Depositor hereby appoints the Owner Trustee as trustee of the Trust
effective as of the date hereof, to have all the rights, powers and duties set
forth herein and in the Business Trust Statute, and the Owner Trustee hereby
accepts such appointment.
SECTION 2.5. Initial Capital Contribution of Trust Estate.
The Depositor hereby sells, assigns, transfers, conveys and sets over to
the Owner Trustee, as of the date hereof, the sum of $10.00. The Owner Trustee
hereby acknowledges receipt in trust from the Depositor, as of the date hereof,
of the foregoing contribution, which shall constitute the initial Trust Property
and shall be deposited in the Certificate Distribution Account. The Depositor
shall pay organizational expenses of the Trust as they may arise or shall, upon
the request of the Owner Trustee, promptly reimburse the Owner Trustee for any
such expenses paid by the Owner Trustee.
SECTION 2.6. Declaration of Trust.
The Owner Trustee hereby declares that it will hold the Trust Property in
trust upon and subject to the conditions set forth herein for the use and
benefit of the Certificateholders, subject to the interests and rights in the
Trust Property granted to other Persons by the Related Documents. It is the
intention and agreement of the parties hereto that the Trust constitute a
business trust under the Business Trust Statute and that this Agreement
constitute the governing instrument of such business trust. None of the parties
hereto shall make the election provided in Treasury Regulation ss. 301.7701-3(c)
to have the Trust classified as an association taxable as a corporation. The
parties agree that, unless otherwise required by appropriate tax authorities,
for so long as GTGP is the sole Certificateholder the Trust will file or cause
to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust as an unincorporated division
of GTGP for tax purposes. On or before the date hereof, the Owner Trustee shall
file in the Office of the Secretary of State the Certificate of Trust required
by Section 3810(a) of the Business Trust Statute, to be effective on the Closing
Date. Effective as of the date hereof, the Owner Trustee shall have all rights,
powers and duties set forth herein and in the Business Trust Statute with
respect to accomplishing the purposes of the Trust.
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SECTION 2.7. Liability of the Certificateholders.
(a) No Certificateholder shall have any personal liability for any
liability or obligation of the Trust or by reason of any action taken by the
parties to this Agreement pursuant to any provisions of this Agreement or any
Related Document.
SECTION 2.8. Title to Trust Property.
(a) Legal title to all the Trust Property shall be vested at all times in
the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Trust Property to be vested in a
trustee or trustees, in which case title shall be deemed to be vested in the
Owner Trustee, a co-trustee and/or a separate trustee, as the case may be.
(b) The Certificateholders shall not have legal title to any part of the
Trust Property. The Certificateholders shall be entitled to receive
distributions with respect to their undivided beneficial ownership interest
therein only in accordance with Articles V and IX. No transfer, by operation of
law or otherwise, of any right, title or interest by any Certificateholder of
its ownership interest in the Trust Property shall operate to terminate this
Agreement or the trusts hereunder or entitle any transferee to an accounting or
to the transfer to it of legal title to any part of the Trust Property.
SECTION 2.9. Situs of Trust.
The Trust will be located and administered in the State of Delaware. All
bank accounts maintained by the Owner Trustee on behalf of the Trust shall be
located in the State of Delaware or the State of Minnesota. The Trust shall not
have any employees in any state other than Delaware; provided, however, that
nothing herein shall restrict or prohibit the Owner Trustee, the Servicer or any
agent of the Trust from having employees within or without the State of
Delaware. Payments will be received by the Trust only in Delaware or the State
of Minnesota, and payments will be made by the Trust only from Delaware or the
State of Minnesota. The only office of the Trust will be at the Corporate Trust
Office in Delaware.
SECTION 2.10. Representations and Warranties of the Depositor.
By execution of this Agreement, the Depositor makes the following
representations and warranties with respect to itself on which the Owner Trustee
relies in accepting the Trust Property in trust and issuing the Certificate.
(a) Organization and Good Standing. It has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority to own its properties and to conduct its
business as such properties are currently owned and as such business is
currently conducted and is proposed to be conducted pursuant to this Agreement
and the Related Documents.
(b) Due Qualification. It is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals, in all jurisdictions in which the
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ownership or lease of its property, the conduct of its business and the
performance of its obligations under this Agreement and the Related Documents
requires such qualification.
(c) Power and Authority; Binding Obligations. It has the power and
authority to execute and deliver this Agreement and its Related Documents and to
perform its obligations pursuant thereto; and the execution, delivery and
performance of this Agreement and its Related Documents have been duly
authorized by all necessary corporate action. When executed and delivered, this
Agreement and the Related Documents will constitute the legal, valid and binding
obligations of the Depositor enforceable in accordance with their 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.
(d) No Consent Required. No consent, license, approval or authorization or
registration or declaration with any Person or with any governmental authority,
bureau or agency is required in connection with the execution, delivery or
performance of this Agreement and the Related Documents, except for such as have
been obtained, effected or made.
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and the Depositor's Related Documents and the fulfillment of its
obligations under this Agreement and its Related Documents shall not conflict
with, result in any breach of any of the terms and provisions of or constitute
(with or without notice, lapse of time or both) a default under, its certificate
of incorporation or bylaws, or any indenture, agreement, mortgage, deed of trust
or other instrument to which it is a party or by which it is bound, or result in
the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement, mortgage, deed of trust or other
instrument, or violate any law, order, rule or regulation applicable to it of
any court or of any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over it or any of its
properties.
(f) No Proceedings. There are no proceedings or investigations pending or,
to its knowledge, threatened against it before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over it or its properties (A) asserting the invalidity of this
Agreement or any of the Related Documents, (B) seeking to prevent the issuance
of the Certificates or the Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents, (C) seeking any
determination or ruling that might materially and adversely affect its
performance of its obligations under, or the validity or enforceability of, this
Agreement or any of the Related Documents, or (D) seeking to adversely affect
the federal income tax or other federal, state or local tax attributes of the
Certificates.
SECTION 2.11. [RESERVED]
SECTION 2.12. [RESERVED]
SECTION 2.13. Covenants of the Certificateholders.
Each Certificateholder by becoming a Certificateholder agrees:
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(a) to be bound by the terms and conditions of the Certificates and of
this Agreement, including any supplements or amendments hereto and to perform
the obligations of a Certificateholder as set forth therein or herein, in all
respects as if it were a signatory hereto. This undertaking is made for the
benefit of the Trust, the Owner Trustee and all other Certificateholders present
and future.
(b) if requested by the Trust, it will sign a federal income tax return in
its capacity as holder of an interest in the Trust. Each Certificateholder also
hereby agrees that in its tax returns it will not take any position inconsistent
with those taken in any tax returns filed by the Trust.
(c) if such Certificateholder is other than an individual or other entity
holding its Certificate through a broker who reports securities sales on Form
1099-B, to notify the Owner Trustee of any transfer by it of a Certificate in a
taxable sale or exchange, within 30 days of the date of the transfer.
(d) until the completion of the events specified in Section 9.1(e), not,
for any reason, to institute proceedings for the Trust or the Seller to be
adjudicated a bankrupt or insolvent, or consent to the institution of bankruptcy
or insolvency proceedings against the Trust or the Seller, or file a petition
seeking or consenting to reorganization or relief under any applicable federal
or state law relating to bankruptcy, or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Trust or the Seller or a substantial part of its property, or
cause or permit the Trust or the Seller to make any assignment for the benefit
of its creditors, or admit in writing its inability to pay its debts generally
as they become due, or declare or effect a moratorium on its debt or take any
action in furtherance of any such action.
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ARTICLE III
THE CERTIFICATES
SECTION 3.1. Initial Ownership.
Upon the formation of the Trust by the contribution by the Depositor
pursuant to Section 2.5 and until the issuance of the Certificates, the
Depositor shall be the sole beneficiary of the Trust.
SECTION 3.2. The Certificates.
The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of any authorized signatory of the Owner Trustee having such
authority under the Owner Trustee's seal imprinted or otherwise affixed thereon
and attested on behalf of the Owner Trustee by the manual or facsimile signature
of any authorized signatory of the Owner Trustee. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Owner Trustee shall
be validly issued and entitled to the benefits of this Agreement,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Certificates.
SECTION 3.3. Authentication of Certificates.
Simultaneously with the sale, assignment and transfer to the Trust of the
Contracts and the delivery to the Trust of the Contract Files and the other
Trust Property pursuant to the Sale and Servicing Agreement, the Owner Trustee
shall cause the Certificates to be executed on behalf of the Trust,
authenticated and delivered to or upon the order of the Depositor. No
Certificate shall entitle its Holder to any benefit under this Agreement, or
shall be valid for any purpose, unless there shall appear on such Certificate a
certificate of authentication substantially in the form set forth in Exhibit B,
executed by the Owner Trustee or the Authentication Agent, by manual or
facsimile signature; such authentication shall constitute conclusive evidence
that such Certificate shall have been duly authenticated and delivered
hereunder. Wilmington Trust Company is hereby initially appointed Authentication
Agent. All Certificates shall be dated the date of their authentication.
SECTION 3.4. Registration of Transfer and Exchange of Certificates.
(a) The Certificate Registrar shall maintain, or cause to be maintained,
at the office or agency maintained pursuant to Section 3.8, a register (the
"Certificate Register") in which, subject to such reasonable regulations as it
may prescribe, the Owner Trustee shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as provided in this
Agreement. The Owner Trustee is hereby initially appointed Certificate Registrar
for the purpose of registering Certificates and transfers and exchanges of
Certificates as provided in this Agreement.
(b) Upon surrender for registration of transfer of any Certificate at the
office or agency maintained pursuant to Section 3.8, the Owner Trustee shall
execute, authenticate and deliver (or shall cause the Authentication Agent to
authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Certificates dated the date of authentication by
the Owner
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Trustee or any Authentication Agent. At the option of a Holder, Certificates may
be exchanged for other Certificates of the same class in authorized
denominations of a like aggregate amount upon surrender of the Certificates to
be exchanged at the office or agency maintained pursuant to Section 3.8.
(c) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by (i) a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate
Registrar, duly executed by the Holder or his attorney duly authorized in
writing, and (ii) a representation letter and certification in the form of
Exhibit C hereto, duly executed by the transferee Holder. Each Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by the Owner Trustee in accordance with its customary
practice.
(d) No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
(e) The Certificates may not be acquired by or for the account of (i) an
employee benefit plan (as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) that is subject to the
provisions of Title 1 of ERISA, (ii) a plan described in Section 4975(e)(1) of
the Internal Revenue Code of 1986, as amended, or (iii) any entity whose
underlying assets include "plan assets" (within the meaning of Department of
Labor ("DOL") Regulation Section 2510.3-101, 29 C.F.R. ss. 2510.3-101 or
otherwise under ERISA) by reason of a plan's investment in the entity,
including, without limitation, an insurance company acting on behalf of its
general account; provided, however, that a Certificate or an interest therein
may be transferred to an insurance company acting on behalf of its general
account if such insurance company represents and covenants in writing to the
Company, the Owner Trustee, the Underwriters and the Servicer that (i) on the
date of such transfer, less than 25% of the assets of such general account (as
reasonably determined by such insurance company) constitute "plan assets" for
purposes of Title I of ERISA and Section 4975 of the Code, (ii) the purchase and
holding of such Certificate are eligible for exemptive relief under Sections (1)
and (3) of Prohibited Transaction Class Exemption 95-60 and (iii) if, after the
initial acquisition of such Certificate, at any time during any calendar quarter
(A) 25% or more of the assets of such general account (as reasonably determined
by such insurance company no less frequently than each calendar quarter)
constitute "plan assets" for purposes of Title I of ERISA or Section 4975 of the
Code and no exemption or exception from the prohibited transaction rules applies
to the continued holding of such Certificate under Section 401(c) of ERISA and
the final regulations thereunder or under an exemption or regulation issued by
the DOL under ERISA or (B) the Company, the Owner Trustee, the Underwriters or
the Servicer furnishes to the insurance company an opinion of counsel to the
effect that the holding of such Certificate in the insurance company's general
account causes the assets of the Trust to be considered "plan assets" (within
the meaning of DOL Regulation Section 2510.3-101, 29 C.F.R. ss. 2510.3-101 or
otherwise under ERISA), then such insurance company will dispose of all of the
Certificates then held in its general account by the end of the next following
calendar quarter.
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(f) Notwithstanding anything contained herein to the contrary, the Owner
Trustee and the Certificate Registrar shall not be responsible for ascertaining
whether any transfer complies with the registration provisions or exemptions
from the Securities Act of 1933, as amended, the Securities and Exchange Act of
1934, as amended, applicable state securities law or the Investment Company Act
of 1940, as amended, or the exemption provisions of ERISA; provided, however,
that if a certificate is specifically required to be delivered to the Owner
Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall
be under a duty to examine the same to determine whether it conforms to the
requirements of this Agreement and shall promptly notify the party delivering
the same if such certificate does not so conform.
(g) Notwithstanding the preceding provisions of this Section, the Owner
Trustee shall not be required to make, and the Certificate Registrar shall not
be required to register, transfers or exchanges of Certificates for a period of
15 days preceding the due date for any payment with respect to the Certificate.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (b) there is delivered to
the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Certificate Registrar or the Owner Trustee that such Certificate
has been acquired by a bona fide purchaser, the Owner Trustee on behalf of the
Trust shall execute, authenticate and deliver (or the Authentication Agent shall
authenticate and deliver), in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor. In
connection with the issuance of any new Certificate under this Section 3.5, the
Owner Trustee may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Owner Trustee and the
Certificate Registrar) connected therewith. Any duplicate Certificate issued
pursuant to this Section 3.5 shall constitute conclusive evidence of ownership
in the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 3.6. Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of transfer,
the Owner Trustee, the Certificate Registrar and any agent of the Owner Trustee
or the Certificate Registrar may treat the person in whose name any Certificate
is registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 5.2 and for all other purposes whatsoever, and
neither the Owner Trustee, the Certificate Registrar nor any agent of the Owner
Trustee or the Certificate Registrar shall be affected by any notice to the
contrary.
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SECTION 3.7. Access to List of Certificateholders' Names and Addresses.
The Owner Trustee shall furnish or cause to be furnished to the Servicer,
within 15 days after receipt by the Owner Trustee of a written request therefor,
a list, in such form as the Servicer may reasonably require, of the names and
addresses of the Certificateholders as of the most recent Record Date for
payment of distributions to Certificateholders. If three or more
Certificateholders of a Class, or one or more Certificateholders holding not
less than 25% of the interests of the Certificateholders as a whole (hereinafter
referred to as "Applicants"), apply in writing to the Owner Trustee, and such
application states that the Applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and is accompanied by a copy of the communication that such
Applicants propose to transmit, then the Owner Trustee shall, within five
Business Days after the receipt of such application, afford such Applicants
access, during normal business hours, to the current list of Certificateholders.
Every Certificateholder, by receiving and holding a Certificate, agrees that
none of the Servicer or the Owner Trustee, nor any agent thereof, shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Certificateholders under this Agreement, regardless of the
source from which such information was derived.
SECTION 3.8. Maintenance of Office or Agency.
The Owner Trustee shall maintain in Wilmington, Delaware, an office or
offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Certificates and the Related Documents may
be served. The Owner Trustee initially designates its Corporate Trust Office for
such purposes. The Owner Trustee shall give prompt written notice to the
Depositor and to the Certificateholders of any change in the location of the
Certificate Register or any such office of agency.
SECTION 3.9. Appointment of Paying Agent.
The Paying Agent shall make distributions to Certificateholders from the
Certificate Distribution Account pursuant to Section 5.2 and shall report the
amounts of such distributions to the Owner Trustee. Any Paying Agent shall have
the revocable power to withdraw funds from the Certificate Distribution Account
for the purpose of making the distributions referred to above. The Owner Trustee
may revoke such power and remove the Paying Agent if the Owner Trustee
determines in its sole discretion that the Paying Agent shall have failed to
perform its obligations under this Agreement in any material respect. The Paying
Agent shall initially be U.S. Bank Trust National Association. U.S. Bank Trust
National Association shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Owner Trustee. In the event that U.S. Bank Trust National
Association shall no longer be the Paying Agent, the Owner Trustee shall appoint
a successor to act as Paying Agent (which shall be a bank or trust company). The
Owner Trustee shall cause such successor Paying Agent or any additional Paying
Agent appointed by the Owner Trustee to execute and deliver to the Owner Trustee
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Owner Trustee that as Paying Agent, such successor Paying
Agent or additional Paying Agent will hold all sums, if any, held by it for
payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
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Certificateholders. The Paying Agent shall return all unclaimed funds to the
Owner Trustee, and upon removal of a Paying Agent, such Paying Agent shall also
return all funds in its possession to the Owner Trustee. The provisions of
Sections 7.1, 7.3, 7.4 and 8.1 shall apply to the Owner Trustee also in its role
as Paying Agent for so long as the Owner Trustee shall act as Paying Agent and,
to the extent applicable, to any other Paying Agent appointed hereunder. Any
reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Restriction on Power of Certificateholders.
No Certificateholder shall have any right to vote or in any manner
otherwise control the operation and management of the Trust except as expressly
provided in this Agreement.
SECTION 4.2. Prior Notice to Certificateholders with Respect to Certain
Matters.
The Owner Trustee shall not take any of the following actions, unless at
least 30 days (or such shorter period as shall be required under the
circumstances) before the taking of such action, the Owner Trustee shall have
notified the Certificateholders in writing of the proposed action and the
Certificateholders shall not have notified the Owner Trustee in writing prior to
the 30th day after such notice is given that such Certificateholders have
withheld consent or provided alternative direction:
(a) the election by the Trust to file an amendment to the Certificate of
Trust unless such amendment is required to be filed under the Business Trust
Statute or unless such amendment would not materially and adversely affect the
interests of the Certificateholders;
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required unless such
amendment would not materially and adversely affect the interests of the
Certificateholders; or
(c) the amendment, change or modification of the Administration Agreement,
unless such amendment would not materially and adversely affect the interests of
the Certificateholders.
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy.
The Owner Trustee shall not have the power to commence a voluntary
proceeding in bankruptcy relating to the Trust without the unanimous prior
approval of all Certificateholders and the delivery to the Owner Trustee by each
such Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
SECTION 4.4. Restrictions on Certificateholders' Power.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action, or proceeding
in equity or at law upon or under or with respect to this Agreement or any
Related Document, unless the Certificateholders are the instructing party
pursuant to Section 6.3 and unless a Certificateholder previously shall have
given to the Owner Trustee a written notice of default and of the continuance
thereof, as provided in this Agreement and unless Holders of Certificates
evidencing in the aggregate not less than a 25 % interest of the Certificates as
a whole shall have made written request upon the Owner Trustee to institute such
action, suit or proceeding in its own name as Owner Trustee under this Agreement
and shall have
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offered to the Owner Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby, and the
Owner Trustee, for 30 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, and during such 30-day period no request or waiver
inconsistent with such written request has been given to the Owner Trustee
pursuant to and in compliance with this Section or Section 6.3; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Owner Trustee, that
no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of this
Agreement to affect, disturb, or prejudice the rights of the Holders of any
other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Agreement, except in the manner provided in this Agreement and for the equal,
ratable, and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 4.4, each and every
Certificateholder and the Owner Trustee shall be entitled to such relief as can
be given either at law or in equity.
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Trust Accounts.
(a) On or prior to the Closing Date, the Depositor shall cause the
Servicer to establish the Certificate Distribution Account in the name of the
Owner Trustee for the benefit of the Certificateholders as provided in Section
6.01(c) of the Sale and Servicing Agreement. The Certificate Distribution
Account shall be an Eligible Account and initially shall be a segregated trust
account established with the Indenture Trustee and maintained with the Indenture
Trustee, so long as the Indenture Trustee is acting as Paying Agent under
Section 3.9.
(b) The Owner Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Certificate Distribution Account and
in all proceeds thereof. If, at any time, the Certificate Distribution Account
ceases to be an Eligible Account, the Owner Trustee shall within 5 Business Days
(or such longer period, not to exceed 30 calendar days, as to which each Rating
Agency may consent) establish or cause the Servicer to establish a new
Certificate Distribution Account as an Eligible Account and shall transfer any
cash and/or any investments to such new Certificate Distribution Account.
(c) All amounts held in the Certificate Distribution Account shall, to the
extent permitted by applicable laws, rules and regulations, be invested by the
Paying Agent in Eligible Investments as provided in Section 6.01 of the Sale and
Servicing Agreement and pursuant to the written instructions of the
Administrator that mature not later than one Business Day prior to the Payment
Date for the Due Period to which such amounts relate. Investments in Eligible
Investments shall be made in the name of the Trust, and such investments shall
not be sold or disposed of prior to their maturity. Any investment of funds in
the Certificate Distribution Account shall be made in Eligible Investments held
by a financial institution with respect to which (a) such institution has noted
the Owner Trustee's interest therein by book entry or otherwise and (b) a
confirmation of the Owner Trustee's interest has been sent to the Owner Trustee
by such institution, provided that such Eligible Investments are (i) specific
certificated securities, and (ii) either (A) in the possession of such
institution or (B) in the possession of a clearing corporation in New York or
Delaware, registered in the name of such clearing corporation, not endorsed for
collection or surrender or any other purpose not involving transfer, not
containing any evidence of a right or interest inconsistent with the Owner
Trustee's security interest therein, and held by such clearing corporation in an
account of such institution. Subject to the other provisions hereof, the Paying
Agent on behalf of the Owner Trustee shall have sole control over each such
investment and the income thereon, and any certificate or other instrument
evidencing any such investment, if any, shall be delivered directly to the Owner
Trustee or its agent, together with each document of transfer, if any, necessary
to transfer title to such investment to the Owner Trustee in a manner which
complies with this Section 5.1. All interest, dividends, gains upon sale and
other income from, or earnings on investment of funds in the Certificate
Distribution Account shall be distributed on the next Payment Date pursuant to
Section 5.2(a). The Seller shall deposit in the Certificate Distribution Account
an amount equal to any net loss on such investments immediately as realized.
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SECTION 5.2. Application of Funds in Certificate Distribution Account.
(a) On each Payment Date the Paying Agent will, based on the information
contained in the Monthly Report delivered on the related Determination Date
pursuant to Section 5.14 of the Sale and Servicing Agreement, distribute to
Certificateholders, on a pro rata basis to the extent of the funds available,
amounts deposited in the Certificate Distribution Account.
(b) On the Payment Date following the date on which amounts received in
respect of the Seller's or the Servicer's exercise of its option to purchase the
corpus of the Trust pursuant to Section 8.01 of the Sale and Servicing
Agreement, or pursuant to the auction of the Contracts as described in Section
10.04 of the Indenture or Section 9.3 of this Agreement, are deposited in the
Certificate Distribution Account, the Paying Agent will distribute such amounts
to Certificateholders in the manner described in Section 5.2(a).
(c) On the Payment Date on which proceeds are deposited in the Certificate
Distribution Account pursuant to Section 8.02 of the Sale and Servicing
Agreement (or on the Payment Date immediately following such deposit if such
proceeds are not deposited in the Certificate Distribution Account on a Payment
Date), the Paying Agent will distribute the proceeds so deposited in the
Certificate Distribution Account to Certificateholders in the manner described
in Section 5.2(a).
(d) On the Payment Date following the date on which the Indenture Trustee
makes payments of money or property in respect of liquidation of the Trust
Property pursuant to Section 5.06 of the Indenture and deposits funds received
in connection with such liquidation in the Certificate Distribution Account, the
Paying Agent will distribute such funds to Certificateholders in the manner
described in Section 5.2(a).
(e) On each Payment Date, the Owner Trustee shall send or cause to be sent
to each Certificateholder the statement required pursuant to Section 6.07 of the
Sale and Servicing Agreement.
(f) The Paying Agent agrees, to the extent required by the Internal
Revenue Code, and applicable federal regulations promulgated thereunder, as the
same may be amended from time to time (collectively, the "Code"), to withhold
from each payment due hereunder or under any Certificate, United States
withholding taxes at the appropriate rate, and, on a timely basis, to deposit
such amounts with an authorized depository and make such returns, filings and
other reports in connection therewith as are required of it under the Code. Any
Certificateholder which is eligible for an exemption from or reduction of
withholding of United States federal income taxes shall, from time to time,
provide to the Owner Trustee and the Paying Agent in a timely manner all
appropriate and properly completed forms indicating such eligibility, as may be
necessary to permit the Paying Agent not to withhold taxes from payments due to
such Certificateholder. In connection with the foregoing, the Owner Trustee
shall promptly furnish or cause to be furnished to each Certificateholder in a
timely fashion such U.S. Treasury forms as are required by the Code to be
furnished to such Certificateholder indicating payment of any taxes withheld
from any payments by the Paying Agent to such Certificateholder. The Owner
Trustee and the Paying Agent shall be fully protected in relying upon, and each
Certificateholder by its acceptance of a Certificate hereunder agrees to
indemnify and hold the Owner Trustee and the Paying Agent harmless against all
claims
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or liability of any kind arising in connection with or related to the Owner
Trustee's or the Paying Agent's reliance upon any documents, forms or
information provided by any Certificateholder to the Owner Trustee. In addition,
if the Paying Agent has not withheld taxes on any payment made to any
Certificateholder, and the Paying Agent is subsequently required to remit to any
taxing authority any such amount not withheld, such Certificateholder shall
return such amount to the Paying Agent upon written demand by the Paying Agent.
In no event shall the Owner Trustee or the Paying Agent be liable for
consequential damages to any Certificateholder.
(g) Any funds remaining in the Certificate Distribution Account after
distribution of all amounts specified in this Section 5.2 shall be distributed
to the Certificateholders in the manner described in Section 5.2(a).
SECTION 5.3. Method of Payment.
Subject to Section 9.1(c), distributions required to be made to
Certificateholders on any Payment Date shall be made to each Certificateholder
of record on the preceding Record Date either by wire transfer, in immediately
available funds, to the account of such Holder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
to the Certificate Registrar appropriate written instructions at least five
Business Days prior to such Payment Date and such Holder's Certificates in the
aggregate evidence a denomination of not less than $1,000,000, or, if not, by
check mailed to such Certificateholder at the address of such Holder appearing
in the Certificate Register.
SECTION 5.4. No Segregation of Monies; No Interest.
Subject to Sections 5.1 and 5.2, monies received by or on behalf of the
Owner Trustee hereunder need not be segregated in any manner except to the
extent required by law or by the Sale and Servicing Agreement and may be
deposited under such general conditions as may be prescribed by law, and neither
the Owner Trustee or the Paying Agent shall be liable for any interest thereon.
SECTION 5.5. Accounting; Reports; Tax Returns.
(a) It is the intention of the parties that for so long as there is only
one Certificateholder the Trust will be disregarded as a separate entity for tax
purposes, and that if there is more than one Certificateholder the Trust will be
treated as a partnership for tax purposes. Accordingly, the Administrator has
agreed pursuant to the Administration Agreement that the Administrator shall, as
appropriate: (i) maintain (or cause to be maintained) the books of the Trust on
a calendar year basis on the accrual method of accounting, (ii) deliver to each
Certificateholder, as may be required by the Code and applicable Treasury
Regulations, such information as may be required to enable each
Certificateholder to prepare its federal and state income tax returns, (iii)
obtain a federal tax identification number for the Trust, and file or cause to
be filed such tax returns relating to the Trust and direct the Owner Trustee to
make such elections as may from time to time be required or appropriate under
any applicable state or federal statute or rule or regulation thereunder so as
to maintain the Trust's characterization as a partnership for federal income tax
purposes, (iv) collect or cause to be collected any withholding tax as described
in and in accordance with Section 5.2(f) with respect to income or distributions
to Certificateholders and (v) file or cause to be filed all
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documents required to be filed by the Trust with the Commission and otherwise
take or cause to be taken all such actions as are notified by the Servicer to
the Administrator as being required for the Trust's compliance with all
applicable provisions of state and federal securities laws.
(b)The Owner Trustee shall sign on behalf of the Trust the tax returns of
the Trust, unless applicable law requires the Certificateholder to sign such
documents, in which case such documents shall be signed by the
Certificateholder.
(c) None of the parties hereto shall make the election provided in
Treasury Regulation ss. 301.7701-3(c) to have the Trust classified as an
association taxable as a corporation.
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ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority.
The Owner Trustee is authorized and directed to execute and deliver the
Related Documents to which the Trust is to be a party and each certificate or
other document attached as an exhibit to or contemplated by the Related
Documents to which the Trust is to be a party and any amendment thereto, and on
behalf of the Trust, to direct the Indenture Trustee to authenticate and deliver
the Class A-1 Notes in the aggregate principal amount of $245,280,000, the Class
A-2 Notes in the aggregate principal amount of $99,645,000, the Class M-1 Notes
in the aggregate principal amount of $24,075,000, the Class M-2 Notes in the
aggregate principal amount of $31,500,000, the Class B-1 Notes in the aggregate
principal amount of $24,750,000 and the Class B-2 Notes in the aggregate
principal amount of $24,750,000. In addition to the foregoing, the Owner Trustee
is authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Related Documents. The Owner Trustee is further
authorized, on behalf of the Trust, to enter into the Administration Agreement
and to appoint a successor Administrator.
SECTION 6.2. General Duties.
It shall be the duty of the Owner Trustee to discharge (or cause to be
discharged through the Administrator or such agents as shall be appointed) all
of its responsibilities pursuant to the terms of this Agreement and the Related
Documents and to administer the Trust in the interest of the Certificateholders,
subject to the Related Documents and in accordance with the provisions of this
Agreement. The Owner Trustee undertakes to perform such duties, and only such
duties, as are specifically set forth in this Agreement or as it shall be
directed in writing by the instructing party. No implied covenants or agreements
shall be read into this Agreement. Notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the Related Documents to the extent the Administrator has
agreed in the Administration Agreement to perform any act or to discharge any
duty of the Trust or the Owner Trustee hereunder or under any Related Document,
and the Owner Trustee shall not be liable for the default or failure of the
Administrator to carry out its obligations under the Administration Agreement.
SECTION 6.3. Action upon Instruction.
(a) Subject to Article IV, the Certificateholders shall have the exclusive
right to direct the actions of the Owner Trustee in the management of the Trust,
so long as such instructions are not inconsistent with the express terms set
forth herein or in any Related Document. The Certificateholders shall not
instruct the Owner Trustee in a manner inconsistent with this Agreement or the
Related Documents.
(b) The Owner Trustee shall not be required to take any action hereunder
or under any Related Document if the Owner Trustee shall have reasonably
determined, or shall have been
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advised by counsel, that such action is contrary to the terms hereof or of any
Related Document or is otherwise contrary to law.
(c) No provision of this Agreement shall require the Owner Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of its duties hereunder or in the exercise of any of its rights or
powers if it shall have reasonable grounds to believe that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) In accepting the trusts hereby created, the Owner Trustee acts solely
as trustee hereunder and not in its individual capacity. The Owner Trustee
agrees to disburse all moneys actually received by it constituting part of the
Trust Property upon the terms of this Agreement. Notwithstanding anything in
this Agreement to the contrary, the Owner Trustee, when acting in such capacity,
shall not be personally liable or accountable to any Person, under any
circumstances, except by reason of its gross negligence, willful misconduct or
breach of its representations, warranties or covenants.
(e) The Owner Trustee shall be under no liability (except as provided in
(d) above) for any action taken by the Owner Trustee in good faith in reliance
upon any paper, order, list, demand, request, consent, affidavit, notice,
opinion, direction, endorsement, assignment, resolution, draft or other
document, believed by it to be genuine and to have been signed by the proper
party or parties or for the disposition of moneys or Trust Property pursuant to
this Agreement. As to any fact or matter, the manner of ascertainment of which
is not specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice president or
by the treasurer or other authorized officer of the relevant party, as to such
fact or matter, and such certificate shall constitute full protection to the
Owner Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(f) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
Related Document, the Owner Trustee shall promptly give notice (in such form as
shall be appropriate under the circumstances) to the Certificateholders
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instruction received from the Certificateholders, the Owner Trustee shall not be
liable on account of such action to any Person. If the Owner Trustee shall not
have received appropriate instruction within ten days of such notice (or within
such shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action, not inconsistent with this Agreement or
the Related Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action or
inaction.
(g) In the event that the Owner Trustee is unsure as to the application of
any provision of this Agreement or any Related Document or any such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances)
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to the Certificateholders requesting instruction and, to the extent that the
Owner Trustee acts or refrains from acting in good faith in accordance with any
such instruction received, the Owner Trustee shall not be liable, on account of
such action or inaction, to any Person. If the Owner Trustee shall not have
received appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action, not inconsistent with this Agreement or the
Related Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action or
inaction.
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions.
The Owner Trustee shall not have any duty or obligation to manage, make
any payment with respect to, register, record, sell, dispose of, or otherwise
deal with the Trust Property, or to otherwise take or refrain from taking any
action under, or in connection with, any document contemplated hereby to which
the Trust is a party, except as expressly provided by the terms of this
Agreement (including as provided in Section 6.2) or in any written instruction
received by the Owner Trustee pursuant to Section 6.3; and no implied duties or
obligations shall be read into this Agreement or any Related Document against
the Owner Trustee. The Owner Trustee shall have no responsibility for preparing,
monitoring or filing any financing or continuation statements in any public
office at any time or otherwise to perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to record this Agreement or
any Related Document; however, the Owner Trustee will from time to time execute
and deliver such financing or continuation statements as are prepared by the
Servicer and delivered to the Owner Trustee in final execution form for its
execution on behalf of the Trust for the purpose of perfecting or maintaining
the perfection of such a security interest or lien or effecting such a
recording. The Owner Trustee nevertheless agrees that it will, at its own cost
and expense (and not at the expense of the Trust), promptly take all action as
may be necessary to discharge any liens on any part of the Trust Property that
are attributable to claims against the Owner Trustee in its individual capacity
that are not related to the ownership or the administration of the Trust
Property.
SECTION 6.5. No Action Except under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or
otherwise deal with any part of, the Trust Property except (i) in accordance
with the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (ii) in accordance with the Related Documents and
(iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 6.3.
SECTION 6.6. Restrictions.
The Owner Trustee shall not take any action (a) that is inconsistent with
the purposes of the Trust set forth in Section 2.3 or (b) that, to the actual
knowledge of the Owner Trustee, would result in the Trust's becoming taxable as
a corporation for federal income tax purposes. The Certificateholders shall not
direct the Owner Trustee to take any action that would violate the provisions of
this Section.
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SECTION 6.7. Administration Agreement.
(a) The Administrator is authorized to execute on behalf of the Trust all
documents, reports, filings, instruments, certificates and opinions as it shall
be the duty of the Trust to prepare, file or deliver pursuant to the Related
Documents. Upon written request, the Owner Trustee shall execute and deliver to
the Administrator a power of attorney appointing the Administrator its agent and
attorney-in-fact to execute all such documents, reports, filings, instruments,
certificates and opinions.
(b) If the Administrator shall resign or be removed pursuant to the terms
of the Administration Agreement, the Owner Trustee may, and is hereby authorized
and empowered to, appoint or consent to the appointment of a successor
Administrator pursuant to the Administration Agreement.
(c) If the Administration Agreement is terminated, the Owner Trustee may,
and is hereby authorized and empowered to, appoint or consent to the appointment
of a Person to perform substantially the same duties as are assigned to the
Administrator in the Administration Agreement pursuant to an agreement
containing substantially the same provisions as are contained in the
Administration Agreement.
(d) The Owner Trustee shall promptly notify each Certificateholder of any
default by or misconduct of the Administrator under the Administration Agreement
of which the Owner Trustee has received written notice or of which a Responsible
Officer of the Owner Trustee has actual knowledge.
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ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.1. Acceptance of Trust and Duties.
The Owner Trustee accepts the trusts hereby created and agrees to perform
its duties hereunder with respect to such trusts but only upon the terms of this
Agreement. The Owner Trustee also agrees to disburse all monies actually
received by it constituting part of the Trust Property upon the terms of the
Related Documents and this Agreement. The Owner Trustee shall not be answerable
or accountable hereunder or under any Related Document under any circumstances,
except (i) for its own willful misconduct or gross negligence, (ii) in the case
of the inaccuracy of any representation or warranty contained in Section 7.3,
(iii) for liabilities arising from the failure of the Owner Trustee to perform
obligations expressly undertaken by it in the last sentence of Section 6.4
hereof, (iv) for any investments issued by the Owner Trustee or any branch or
affiliate thereof in its commercial capacity or (v) for taxes, fees or other
charges on, based on or measured by, any fees, commissions or compensation
received by the Owner Trustee in connection with any of the transactions
contemplated by this Agreement or any Related Document. In particular, but not
by way of limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the instructions
of the Certificateholders;
(c) no provision of this Agreement or any Related Document shall require
the Owner Trustee to expend or risk funds or otherwise incur any financial
liability in the performance of any of its rights or powers hereunder or under
any Related Document if the Owner Trustee shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under this Agreement or any of the Related
Documents, including the principal of and interest on the Certificates or the
Notes;
(e) the Owner Trustee shall not be responsible for or in respect of the
recitals herein, the validity or sufficiency of this Agreement or for the due
execution hereof by the Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Property or for or in respect
of the validity or sufficiency of the Related Documents, other than the
certificate of authentication on the Certificates, and the Owner Trustee shall
in no event assume or incur any liability, duty, or obligation to the Indenture
Trustee, any Noteholder or to any Certificateholder, other than as expressly
provided for herein and in the Related Documents;
(f) the Owner Trustee shall not be liable for the default or misconduct of
the Administrator, the Indenture Trustee or the Servicer under any of the
Related Documents or
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otherwise and the Owner Trustee shall have no obligation or liability to monitor
the performance of or to perform the obligations of the Trust under this
Agreement or the Related Documents that are required to be performed by the
Administrator under the Administration Agreement, the Indenture Trustee under
the Indenture or the Servicer under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any Related Document, at the request, order or direction of the
Certificateholders, unless such Certificateholders have offered to the Owner
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or thereby. The
right of the Owner Trustee to perform any discretionary act enumerated in this
Agreement or in any Related Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable for other than its gross negligence or
willful misconduct in the performance of any such act;
(h) the Owner Trustee shall not be under any obligation to appear in,
prosecute or defend any action, which in its opinion may require it to incur any
out-of-pocket expense or any liability unless it shall be furnished with such
reasonable security and indemnity against such expense or liability as it may
require in accordance with the terms hereof. The Owner Trustee may, but shall be
under no duty to, undertake such action as it may deem necessary at any and all
times to protect the Trust Property and the respective rights and interests of
the Noteholders and the Certificateholders pursuant to the terms of the
Indenture and this Agreement;
(i) the Owner Trustee may (at the expense of the Seller) consult with
counsel, and the written advice of counsel or any opinion of counsel shall be
full and complete authorization and protection in respect of any action taken or
omitted by the Owner Trustee in good faith reliance thereon; and
(j) notwithstanding anything contained herein to the contrary, neither
Wilmington Trust nor the Owner Trustee shall be required to take any action in
any jurisdiction other than in the State of Delaware if the taking of such
action will (i) require the consent or approval or authorization or order of or
giving of notice to, or the registration with or the taking of any other action
in respect of, any state or other governmental authority or agency of any
jurisdiction other than the State of Delaware; (ii) result in any fee, tax or
other governmental charge under the laws of any jurisdiction or any political
subdivisions thereof in existence on the date hereof other than the State of
Delaware becoming payable by Wilmington Trust; or (iii) subject Wilmington Trust
to personal jurisdiction in any jurisdiction other than the State of Delaware
for causes of action arising from acts unrelated to the consummation of the
transactions by Wilmington Trust or the Owner Trustee as the case may be,
contemplated hereby. The Owner Trustee shall be entitled to obtain (at the
expense of the Seller) an opinion of counsel to determine whether any action
required to be taken pursuant to this Agreement results in the consequences
described in clauses (i), (ii) and (iii) of the preceding sentence. In the event
that said counsel advises the Owner Trustee that such action will result in such
consequences, the Owner Trustee will appoint an additional or separate trustee
to proceed with such action.
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SECTION 7.2. Furnishing of Documents.
The Owner Trustee shall furnish to the Certificateholders, promptly upon
receipt of a written request therefor, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and any other
instruments furnished to the Owner Trustee under the Related Documents unless
the Certificateholders have previously received such items.
SECTION 7.3. Representations and Warranties.
The Owner Trustee hereby represents and warrants to the Depositor and the
Certificateholders that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. It has all requisite
corporate power and authority and all franchises, grants, authorizations,
consents, orders and approvals from all governmental authorities of the State of
Delaware and the United States governing its banking and trust powers necessary
to execute, deliver and perform its obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the execution
and delivery by it of this Agreement and each Related Document to which the
Trust is a party, and this Agreement and each Related Document will be executed
and delivered by one of its officers who is duly authorized to execute and
deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement, nor
the consummation by it of the transactions contemplated hereby nor compliance by
it with any of the terms or provisions hereof will contravene any Federal or
Delaware law, governmental rule or regulation governing the banking or trust
powers of the Owner Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound or result in the creation or imposition of
any lien, charge or encumbrance on the Trust Property resulting from actions by
or claims against the Owner Trustee individually which are unrelated to this
Agreement or the Related Documents.
SECTION 7.4. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting upon
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond, or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter, and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
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(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the Related
Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants and
other skilled persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons and not contrary to this Agreement or
any Related Document.
SECTION 7.5. Not Acting in Individual Capacity.
Except as provided in this Article VII, in accepting the trusts hereby
created Wilmington Trust Company acts solely as Owner Trustee hereunder and not
in its individual capacity and all Persons having any claim against the Owner
Trustee by reason of the transactions contemplated by this Agreement or any
Related Document shall look only to the Trust Property for payment or
satisfaction thereof.
SECTION 7.6. Owner Trustee Not Liable for Certificates, Notes or
Contracts.
The recitals contained herein and in the Certificates and the Notes (other
than the signature and counter-signature of the Owner Trustee on the
Certificates and the Notes) shall be taken as the statements of the Depositor,
and the Owner Trustee assumes no responsibility for the correctness thereof. The
Owner Trustee makes no representations as to the validity or sufficiency of this
Agreement, of any Related Document or of the Certificates (other than the
signature and counter-signature of the Owner Trustee on the Certificates) or the
Notes (other than the signature or counter-signature of the Owner Trustee on the
Notes), or of any Contract or related documents. The Owner Trustee shall at no
time have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Contract, or the perfection and priority of
any security interest created by any Contract in any real property or the
maintenance of any such perfection and priority of any security interest created
by any Contract in any real property or for or with respect to the sufficiency
of the Trust Property or its ability to generate the payments to be distributed
to Certificateholders under this Agreement or the Noteholders under the
Indenture, including, without limitation: the existence, condition and ownership
of any real property; the existence and enforceability of any insurance thereon;
the existence and contents of any Contract or any computer or other record
thereof; the validity of the assignment of any Contract to the Trust or of any
intervening assignment; the completeness of any Contract; the performance or
enforcement of any Contract; the compliance by the Seller or the Servicer with
any warranty or representation made under any Related Document or in any related
document or the accuracy of any such warranty or representation or any action of
the Indenture Trustee or the Servicer taken in the name of the Owner Trustee.
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SECTION 7.7. Owner Trustee May Own Certificates and Notes.
The Owner Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates or Notes and may deal with the Depositor, the
Seller, the Indenture Trustee and the Servicer in banking or other transactions
with the same rights as it would have if it were not Owner Trustee.
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ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1. Owner Trustee's Fees and Expenses.
The Owner Trustee shall receive as compensation for its services hereunder
such fees as have been separately agreed upon before the date hereof between
Green Tree and the Owner Trustee (or, with respect to any successor Owner
Trustee, reasonable compensation for all services rendered by it hereunder), and
the Owner Trustee shall be entitled to be reimbursed by Green Tree for its other
reasonable expenses hereunder, including the reasonable compensation, expenses
and disbursements of such agents, representatives, experts and counsel as the
Owner Trustee may employ in connection with the exercise and performance of its
rights and its duties hereunder; provided, however, that the Owner Trustee shall
only be entitled to reimbursement for such expenses hereunder to the extent such
expenses (i) are fees of outside counsel engaged by the Owner Trustee in respect
of the performance of its obligations hereunder or (ii) relate to the
performance of its obligations pursuant to Section 5.5 hereof.
SECTION 8.2. Indemnification.
Green Tree shall be liable as primary obligor for, and shall indemnify the
Owner Trustee in its individual capacity and its successors, assigns, agents and
servants, and any co-trustee (collectively, the "Indemnified Parties") from and
against, any and all liabilities, obligations, losses, damages, taxes, claims,
actions and suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by, or
asserted against the Owner Trustee or any Indemnified Party in any way relating
to or arising out of this Agreement, the Related Documents, the Trust Property,
the administration of the Trust Property or the action or inaction of the Owner
Trustee hereunder, except only that Green Tree shall not be liable for or
required to indemnify the Owner Trustee from and against Expenses arising or
resulting from any of the matters described in the third sentence of Section
7.1. The indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement.
SECTION 8.3. Nonrecourse Obligations.
Notwithstanding anything in this Agreement or any Related Document, the
Owner Trustee agrees in its individual capacity and in its capacity as Owner
Trustee for the Trust that all obligations of the Trust to the Owner Trustee
individually or as Owner Trustee for the Trust shall be recourse to the Trust
Property only and specifically shall not be recourse to the assets of any
Certificateholder.
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ARTICLE IX
TERMINATION
SECTION 9.1. Termination of the Trust.
(a) The respective obligations and responsibilities of the Depositor and
the Owner Trustee created by this Agreement and the Trust created by this
Agreement shall terminate upon the later of (i) the maturity or other
liquidation of the last Contract (including the purchase as of any Payment Date
by the Seller or the Servicer at its option of the corpus of the Trust as
described in Section 8.01 of the Sale and Servicing Agreement) and the
subsequent distribution of amounts in respect of such Contracts as provided in
the Related Documents, or (ii) the payment to Certificateholders of all amounts
required to be paid to them pursuant to this Agreement. In any case, there shall
be delivered to the Owner Trustee, the Indenture Trustee, the Rating Agencies
and the Note Insurer an Opinion of Counsel that all applicable preference
periods under federal, state and local bankruptcy, insolvency and similar laws
have expired with respect to the payments pursuant to clause (ii); provided,
however, that in no event shall the trust created by this Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants living on the date of this Agreement of ▇▇▇▇ ▇▇▇▇▇▇▇ of the
Commonwealth of Massachusetts; and provided, further, that the rights to
indemnification under Section 8.2 shall survive the termination of the Trust.
The Servicer shall promptly notify the Owner Trustee of any prospective
termination pursuant to this Section 9.1. The bankruptcy, liquidation,
dissolution, termination, resignation, expulsion, withdrawal, death or
incapacity of any Certificateholder, shall not (x) operate to terminate this
Agreement or the Trust, nor (y) 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 all or any part of the
Trust or Trust Property nor (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 9.1(a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Within five Business Days of receipt of notice of final distribution
on the Certificates from the Seller or the Servicer given pursuant to Section
8.01(b) of the Sale and Servicing Agreement , the Owner Trustee shall mail
written notice to the Certificateholder specifying (i) the Payment Date upon
which final payment of the Certificates shall be made upon presentation and
surrender of Certificates at the office of the Paying Agent therein specified,
(ii) the amount of any such final payment, and (iii) that the Record Date
otherwise applicable to such Payment Date is not applicable, payments being made
only upon presentation and surrender of the Certificates at the office of the
Paying Agent therein specified. The Owner Trustee shall give such notice to the
Certificate Registrar at the time such notice is given to Certificateholders. In
the event such notice is given, (i) the Indenture Trustee shall make deposits
into the Certificate Distribution Account in accordance with Section 6.06 of the
Sale and Servicing Agreement, or, (ii) in the case of an optional purchase of
Contracts pursuant to Section 8.01 of the Sale and Servicing Agreement, the
Indenture Trustee shall deposit the amount specified in Section 8.01 of the Sale
and Servicing Agreement. Upon presentation and surrender of the Certificates,
the Paying Agent shall cause to be distributed to Certificateholders amounts
distributable on such Payment Date pursuant to Section 5.2.
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(d) In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above-mentioned written notice, the Owner 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 one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets that remain
subject to this Agreement. Any funds which are payable to Certificateholders
remaining in the Trust after exhaustion of such remedies shall be distributed by
the Owner Trustee to The United Way (but only upon termination of this
Agreement), and the Certificateholders, by acceptance of their Certificates,
hereby waive any rights with respect to such funds.
(e) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
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ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1. Eligibility Requirements for Owner Trustee.
The Owner Trustee shall at all times be a corporation (i) satisfying the
provisions of Section 3807(a) of the Business Trust Statute; (ii) authorized to
exercise corporate trust powers; (iii) having a combined capital and surplus of
at least $50,000,000 and subject to supervision or examination by Federal or
State authorities; (iv) having (or having a parent which has) a long-term debt
rating of at least P-1 by ▇▇▇▇▇'▇ or AA- by Standard & Poor's and a short-term
debt rating of A-1+ from S&P or otherwise acceptable to the Rating Agencies; and
(v) shall not be an Affiliate of the Seller. If such corporation shall publish
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purpose of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Owner Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 10.2.
SECTION 10.2. Resignation or Removal of Owner Trustee.
The Owner Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Depositor at least 30
days before the date specified in such instrument. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Owner Trustee
meeting the qualifications set forth in Section 10.1 by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Owner Trustee and one copy to the successor Owner Trustee. If no successor Owner
Trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Owner Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.1 and shall fail to resign after written
request therefor by the Depositor or if at any time the Owner Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver
of the Owner Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Owner Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor may remove the Owner Trustee. If the Depositor shall remove the Owner
Trustee under the authority of the immediately preceding sentence, the Depositor
shall promptly appoint a successor Owner Trustee meeting the qualification
requirements of Section 10.1 by written instrument, in duplicate, one copy of
which instrument shall be delivered to the outgoing Owner Trustee so removed and
one copy to the successor Owner Trustee and payment of all fees owed to the
outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until all fees and expenses, including any indemnity
payments, due to the outgoing Owner Trustee have been paid and
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until acceptance of appointment by the successor Owner Trustee pursuant to
Section 10.3. The Depositor shall provide notice of such resignation or removal
of the Owner Trustee to each of the Rating Agencies.
SECTION 10.3. Successor Owner Trustee.
Any successor Owner Trustee appointed pursuant to Section 10.2 shall
execute, acknowledge and deliver to the Depositor and to its predecessor Owner
Trustee an instrument accepting such appointment under this Agreement, and
thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective and such successor Owner Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties,
and obligations of its predecessor under this Agreement, with like effect as if
originally named as Owner Trustee. The predecessor Owner Trustee shall deliver
to the successor Owner Trustee all documents and statements and monies held by
it under this Agreement; and the predecessor Owner Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Owner Trustee
all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice of the successor Owner Trustee
to the Certificateholder, the Indenture Trustee, the Noteholders, the Note
Insurer and the Rating Agencies. If the Administrator shall fail to mail such
notice within 10 days after acceptance of appointment by the successor Owner
Trustee, the successor Owner Trustee shall cause such notice to be mailed at the
expense of the Administrator.
SECTION 10.4. Merger or Consolidation of Owner Trustee.
Any corporation into which the Owner 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 Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section 10.1,
without the execution or filing of any instrument or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding,
and provided further that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Property or any Contract Security may at the time be located,
the Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate
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trustee or separate trustees, of all or any part of the Trust Property, and to
vest in such Person, in such capacity, such title to the Trust, or any part
thereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Administrator and the Owner
Trustee may consider necessary or desirable. If the Administrator shall not have
joined in such appointment within 15 days after the receipt by it of a request
so to do, the Owner Trustee shall have the power to make such appointment. No
co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a successor trustee pursuant to Section 10.1 and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 10.1.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or imposed upon
the Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed the Owner 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 Property or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable by reason
of any act or omission of any other trustee under this Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly 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 Owner 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. 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 Owner 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
Owner Trustee. Each such instrument shall be filed with the Owner Trustee and a
copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
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
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Amendment.
(a) This Agreement may be amended by the Depositor and the Owner Trustee
with the consent of the Note Insurer, but without the consent of any of the
Certificateholder or Noteholders, (i) to cure any ambiguity, or (ii) to correct,
supplement or modify any provisions in this Agreement; 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 or Noteholder or
the Note Insurer.
(b) This Agreement may also be amended from time to time, by the Depositor
and the Owner Trustee with the consent of a Certificate Majority of the
Certificates and, if such amendment materially and adversely affects the
interests of Noteholders, the consent of a Note Majority (which consent of any
Holder of a Certificate or Note given pursuant to this Section or pursuant to
any other provision of this Agreement shall be conclusive and binding on such
Holder and on all future Holders of such Certificate or Note and of any
Certificate or Note issued upon the transfer thereof or in exchange thereof or
in lieu thereof whether or not notation of such consent is made upon the
Certificate or Note) 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 or Notes;
provided, however, that no such amendment shall (a) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Contracts or distributions that shall be required to be made on any
Certificate or Note or the Class A-1 Interest Rate, the Class A-2 Interest Rate,
the Class M-1 Interest Rate, the Class M-2 Interest Rate, the Class B-1 Interest
Rate or the Class B-2 Interest Rate, or (b) reduce the aforesaid percentage
required to consent to any such amendment or any waiver hereunder, without the
consent of the Holders of all Certificates and Notes then outstanding.
(c) Prior to the execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to each Rating Agency and to the Note Insurer.
(d) Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee and to the
Note Insurer unless such parties have previously received such notification.
(e) It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to Section 11.1(b) to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of Certificateholders, Noteholders and the Note Insurer provided
for in this Agreement) and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable requirements
as the Owner Trustee may prescribe, including the establishment of record dates.
11-1
(f) Prior to the execution of any amendment to this Agreement, the Owner
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 the execution and delivery of
such amendment have been satisfied. The Owner Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
(g) The Depositor and the Owner Trustee may amend this Agreement in order
to effect a "financial asset securitization investment trust" ("FASIT") election
for all or a portion of the Trust; provided, that (i) the Depositor delivers an
Opinion of Counsel to the Owner Trustee to the effect that such election will
not adversely affect the Federal or applicable state income tax characterization
of any outstanding Notes or Certificates or the taxability of the Trust under
Federal or applicable state income tax laws or otherwise have a material adverse
effect on the Certificates or Notes, and (ii) the requirements of clauses (c),
(d) and (f) above are met.
SECTION 11.2. No Recourse.
Each Certificateholder by accepting a Certificate acknowledges that such
Certificateholder's Certificates represent beneficial interests in the Trust
only and do not represent interests in or obligations of the Seller, the
Servicer, the Owner Trustee, the Indenture Trustee or any Affiliate of any of
the foregoing and no recourse may be had against such parties or their assets,
except as may be expressly set forth or contemplated in this Agreement, the
Certificates or the Related Documents.
SECTION 11.3. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware without regard to the principles of conflicts of
laws thereof and the obligations, rights and remedies of the parties under this
Agreement shall be determined in accordance with such laws.
SECTION 11.4. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.5. Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the
Trust. The fractional undivided interests in the Trust represented by the
Certificates shall be nonassessable for any losses or expenses of the Trust or
for any reason whatsoever, and Certificates upon execution thereof by the Owner
Trustee pursuant to Section 3.3 are and shall be deemed fully paid.
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SECTION 11.6. Third-Party Beneficiaries.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns. The
parties further agree that the Indenture Trustee, the Noteholders, the
Certificateholders and the Note Insurer shall be deemed to be third party
beneficiaries of this Agreement. Except as otherwise provided in this Agreement,
no other Person shall have any right or obligation hereunder.
SECTION 11.7. Counterparts.
For the purpose of facilitating its execution and for other purposes, this
Agreement may be executed simultaneously in any number of counterparts, each of
which counterparts shall be deemed to be an original, and all of which
counterparts shall constitute but one and the same instrument.
SECTION 11.8. Notices.
All demands, notices and communications under this Agreement shall be in
writing, personally delivered or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt (a) in the
case of the Depositor, at the following address: c/o Green Tree Financial
Corporation, 1100 Landmark Towers, ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Chief Financial Officer, (b) in the case of the Owner
Trustee, at the Corporate Trust Office, (c) in the case of each Rating Agency,
at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ABS Monitoring
Department (for ▇▇▇▇▇'▇) and ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (for Standard
& Poor's) Attention: Asset-Backed Surveillance, and (d) in the case of the Note
Insurer, at the following address: Financial Security Assurance Inc., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Surveillance Department Re: Green Tree
Home Improvement and Home Equity Loan Trust 1998-F or at such other address as
shall be designated by any such party in a written notice to the other parties.
Notwithstanding the foregoing, any notice required or permitted to be mailed to
a Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register, and any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
SECTION 11.9 Limitation of Liability
It is expressly understood and agreed by the parties hereto that (a) this
Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as Owner Trustee of Green Tree Home
Improvement and Home Equity Loan Trust 1998-F, in the exercise of the powers and
authority conferred and vested in it, (b) each of the representations,
undertakings and agreements herein made on the part of the Issuer is made and
intended not as personal representations, undertakings and agreements by
Wilmington Trust Company but is made and intended for the purpose for binding
only the Issuer, (c) nothing herein contained shall be construed as creating any
liability on Wilmington Trust Company, individually, or personally, to perform
any covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties hereto and by any Person claiming
by, through or under the parties hereto and (d) under no circumstances shall
Wilmington Trust Company be personally liable for the payment of any
indebtedness or expenses of the Issuer or be liable for the breach or failure of
any obligation, representation, warranty or covenant made or undertaken by the
Issuer under this Agreement or any other related documents.
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IN WITNESS WHEREOF, the Depositor and the Owner Trustee have caused this
Trust Agreement to be duly executed by their respective officers as of the day
and year first above written.
GREEN TREE FINANCIAL CORPORATION,
as Depositor
By______________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Controller
WILMINGTON TRUST COMPANY,
as Owner Trustee
By______________________________________
Name:
Title:
EXHIBIT A
CERTIFICATE OF TRUST OF
GREEN TREE HOME IMPROVEMENT AND HOME EQUITY
LOAN TRUST 1998-F
THIS Certificate of Trust of GREEN TREE HOME IMPROVEMENT AND HOME EQUITY
LOAN TRUST 1998-F (the "Trust") is being duly executed and filed by the
undersigned trustee, to form a business trust under the Delaware Business Trust
Act (12 Del. Code, ss. 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed hereby is GREEN TREE HOME
IMPROVEMENT AND HOME EQUITY LOAN TRUST 1998-F.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, ▇▇▇▇▇▇ Square North,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate
Trust Administration.
3. This Certificate of Trust will be effective December 30, 1998.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of
Trust in accordance with Section 3811(a) of the Act.
WILMINGTON TRUST COMPANY,
as trustee
By
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXHIBIT B
FORM OF CERTIFICATE
THIS TRUST CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT
TO THE NOTES TO THE EXTENT DESCRIBED IN THE INDENTURE
REFERRED TO HEREIN.
GREEN TREE HOME IMPROVEMENT AND HOME EQUITY
LOAN TRUST 1998-F
evidencing the beneficial interest in the Trust, as defined below, the property
of which includes a pool of home improvement contracts and promissory notes and
home equity loans secured by mortgages, deeds of trust or security deeds on
certain real property which is subject to the home improvement or home equity
loan to which it relates, all sold to the Trust by Green Tree Financial
Corporation.
This Certificate does not represent an obligation of, or an interest in, Green
Tree Financial Corporation or any affiliate thereof.
Certificate No. Percentage Interest: ____%
First Payment Date:
January 15, 1999
Servicer:
Green Tree Financial Corporation
This Certificate may not be acquired by (a) an employee benefit plan (as defined
in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA,
(b) a plan described in Section 4975(e)(1) of the Code or (c) any entity whose
underlying assets include plan assets by reason of such plan's investment in the
entity (including an insurance company acting on behalf of its general account)
(each, a "Benefit Plan Investor"). Prior to its purchase of this Certificate,
the proposed transferee of such Certificate must certify and covenant in writing
(in the form of letter attached as Exhibit C to the Trust Agreement) to the
Seller, the Servicer, the Owner Trustee and the Underwriters that it is not a
Benefit Plan Investor or that it is an insurance company general account and
that its purchase of this Certificate will satisfy certain conditions specified
in the exemptive relief granted by, and the regulations proposed by, the
Department of Labor) and that it will dispose of the Certificate within a
prescribed period of time if such conditions cease to be
B-1
satisfied or if the Company, the Owner Trustee, the Underwriters or the Servicer
furnishes to the insurance company an opinion of counsel to the effect that the
insurance company's holding of the Certificate in its general account causes the
assets of the Trust to be considered "plan assets" under ERISA.. Any transfer of
this Certificate in violation of the foregoing shall be void and of no effect.
THIS CERTIFIES THAT _____________________________ is the registered owner
of a nonassessable, fully paid, fractional undivided interest in the Green Tree
Home Improvement And Home Equity Loan Trust 1998-F (the "Trust"). The Trust was
created pursuant to a Trust Agreement, dated as of December 1, 1998 (the "Trust
Agreement"), between Green Tree Financial Corporation, as depositor (the
"Depositor"), and Wilmington Trust Company, not in its individual capacity but
solely as Owner Trustee (the "Owner Trustee"), a summary of certain of the
pertinent provisions of which is set forth below. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings assigned to
them in the Trust Agreement or the Sale and Servicing Agreement, dated as of
December 1, 1998 (the "Sale and Servicing Agreement"), between the Trust and
Green Tree Financial Corporation (the "Seller"), in its individual capacity and
as servicer (the "Servicer").
This Certificate is one of the duly authorized Certificates issued under
the Trust Agreement (herein called the "Certificates"). The Trust has also
issued under the Indenture, dated as of December 1, 1998, between the Trust and
U.S. Bank Trust National Association, as trustee, the Notes (the "Notes")
designated as the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-1, Class M-2, Class B-1 and
Class B-2 Notes. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. The property of the Trust includes (as more fully
described in the Trust Agreement) a pool of home improvement contracts and
promissory notes and home equity loans (the "Contracts") which are secured by
mortgages, deeds of trust or security deeds on certain real property which is
the subject of the home improvement or home equity loans to which it relates,
certain monies due thereunder on or after the Cutoff Date, an assignment of the
Seller's security interests in the related real property, certain bank accounts
and property (including the right to receive Liquidation Proceeds) securing the
Contracts, and proceeds of all of the foregoing.
Under the Trust Agreement, there will be distributed on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (the "Payment Date"), commencing on January 15, 1999, to the person
in whose name this Certificate is registered at the close of business on the
Business Day immediately preceding such Payment Date (the "Record Date"), such
Certificateholder's fractional undivided interest in the amounts then
distributable on the Certificates to the extent of the funds available therefor.
The Certificateholder, by its acceptance of a Certificate, covenants and
agrees that it will not at any time institute against or join in any institution
against the Depositor or the Trust of any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States Federal or state bankruptcy or similar law in connection with
any obligations relating to the Certificates, the Notes, the Trust Agreement or
any of the Related Documents.
B-2
Except as provided in the Trust Agreement, distributions on this
Certificate will be made by the Paying Agent by check or money order mailed to
the Certificateholder of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
hereon. Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Paying Agent of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained for that purpose by the Owner Trustee. The Record Date otherwise
applicable to distributions shall not be applicable to such final distribution.
The Certificates do not represent an obligation of, or an interest in, the
Depositor, the Servicer, the Owner Trustee or any Affiliate of any of them. The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Contracts, all as more specifically set forth in the
Trust Agreement. A copy of the Trust Agreement may, upon request, be examined by
any Certificateholder during normal business hours at the principal office of
the Depositor and at such other places, if any, designated by the Depositor.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Trust
Agreement at any time by the Depositor and the Owner Trustee. In certain limited
circumstances, the Trust Agreement may only be amended with the consent of the
Holders of Certificates evidencing not less than a Certificate Majority. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and on all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
As provided in the Trust Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Registrar upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee in Wilmington, Delaware accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate fractional undivided interest in the Trust issued
to the designated transferee. The initial Certificate Registrar appointed under
the Trust Agreement is Wilmington Trust Company.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of a like
interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange, but the Owner
Trustee may require payment of a sum sufficient to cover any tax or governmental
charges payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the person in whose name this
Certificate is registered as the owner hereof for the purpose of receiving
distributions and for all other purposes, and neither the
B-3
Owner Trustee, the Certificate Registrar nor any such agent shall be affected by
any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to Certificateholders
of all amounts required to be paid to them pursuant to the Trust Agreement and
the disposition of all property held as part of the Trust. The Servicer or the
Seller may at its option purchase the corpus of the Trust at a price specified
in the Sale and Servicing Agreement, and such purchase of the Contracts and
other property of the Trust will effect early retirement of the Certificates;
provided, however, such right of purchase is exercisable only as of a Record
Date as of which the Pool Scheduled Principal Balance is less than or equal to
10% of the Cutoff Date Pool Principal Balance.
The recitals contained herein shall be taken as the statements of the
Depositor or the Servicer, as the case may be, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Certificate or of any
Contract or related document.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Owner Trustee, by manual or facsimile signature,
this Certificate shall not entitle the Holder hereof to any benefit under the
Trust Agreement or the Sale and Servicing Agreement or be valid for any purpose.
B-4
IN WITNESS WHEREOF, the Owner Trustee on behalf of the Trust and not in
its individual capacity has caused this Certificate to be duly executed.
Dated: ____________, ____
GREEN TREE HOME IMPROVEMENT
AND HOME EQUITY LOAN TRUST
1998-F
By WILMINGTON TRUST COMPANY, not in its
individual capacity but solely on
behalf of the Issuer as Owner Trustee
under the Trust Agreement
By
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
B-5
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By
------------------------------------------
as Authenticating Agent
B-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto ________________________________ (PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE)
(Please print or typewrite name and address, including postal zip code, of
assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated: *
------------------------
Signature Guaranteed:
*
------------------------
*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, enlargement or any change whatsoever. Such signature must be
guaranteed by a member firm of The New York Stock Exchange, Inc. or a commercial
bank or trust company.
B-7
EXHIBIT C
FORM OF REPRESENTATION LETTER AND CERTIFICATION
_____, 199_
Green Tree Financial Corporation
1100 Landmark Towers
▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Administration
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
as Representative of the several Underwriters
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Green Tree Home Improvement and Home Equity Loan Trust 1998-F
Ladies and Gentlemen:
This is to notify you as to the transfer of Green Tree Home Improvement
and Home Equity Loan Trust 1998-F Certificate, No ____.
The undersigned is the holder of the Certificate and with this notice
hereby deposits with the Trustee a certificate representing the Certificate and
requests that Certificates in the same percentage interest be issued and
executed on behalf of the Trust and authenticated by the Trustee, as specified
in the Trust Agreement, and registered to the purchaser on ________,____, as
follows:
Name:
Denominations:
Address:
Taxpayer I.D. No.:
C-1
In connection with the proposed purchase, the undersigned hereby confirms
that:
1. The undersigned either:
(a) is not (i) an "employee benefit plan" (as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), including governmental plans and church plans, (ii) a plan
described in Section 4975(e)(1) of the Internal Revenue Code of 1986, as
amended (the "Code"), including individual retirement accounts and ▇▇▇▇▇
plans, or (iii) any other entity whose underlying assets include "plan
assets" (as defined in United States Department of Labor ("DOL")
Regulation Section 2510.3-101, 29 C.F.R. ss. 2510.3-101 or otherwise under
ERISA) by reason of a plan's investment in the entity, including, without
limitation, an insurance company general account, or
(b) is an insurance company acting on behalf of a general account and (i)
on the date hereof less than 25% of the assets of such general account (as
reasonably determined by us) constitute "plan assets" for purposes of
Title I of ERISA and Section 4975 of the Code, (ii) the purchase and
holding of such Certificate are eligible for exemptive relief under
Sections (1) and (3) of Prohibited Transaction Class Exemption 95-60, and
(iii) the undersigned agrees that if, after the undersigned's initial
acquisition of the Certificates, at any time during any calendar quarter
(A) 25% or more of the assets of such general account (as reasonably
determined by us no less frequently than each calendar quarter) constitute
"plan assets" for purposes of Title I of ERISA or Section 4975 of the Code
and no exemption or exception from the prohibited transaction rules
applies to the continued holding of the Certificates under Section 401(c)
of ERISA and the final regulations thereunder or under an exemption or
regulation issued by the DOL under ERISA or (B) the Company, the Owner
Trustee, the Underwriters or the Servicer furnishes to the insurance
company an opinion of counsel to the effect that the holding of such
Certificate in the insurance company's general account causes the assets
of the Trust to be considered "plan assets" (within the meaning of DOL
Regulation Section 2510.3-101, 29 C.F.R. ss. 2510.3-101 or otherwise under
ERISA), we will dispose of all Certificates issued by the Trust then held
in our general account by the end of the next following calendar quarter.
2. The undersigned understands that any purported transfer of any
Certificate in contravention of the restrictions and conditions set forth in
paragraph 1 above (including any violation of the representation in paragraph 1
by an investor who continues to hold a Certificate occurring any time after the
transfer in which it acquired such Certificate) shall be null and void, and the
purported transferee shall not be recognized by the Trust or any other person as
a Certificateholder for any purpose.
3. The person signing this letter on behalf of the ultimate beneficial
purchaser of the Certificates has been duly authorized by such beneficial
purchaser of the Certificates to do so.
4. The Certificates purchased by the undersigned should be registered in
the name and issued in the denominations set forth on Schedule 1 hereto. All
payments on the Certificates
C-2
held by the undersigned should be wired in accordance with the instructions set
forth on Schedule 1 hereto unless the undersigned otherwise notifies the Trustee
in writing.
You are entitled to rely upon this letter, and the undersigned understands
that, in granting their respective consents to the purchase of Certificates, the
Company, the Servicer, the Trustee and the Underwriters will rely on the
undersigned's representations and warranties in this letter and on the
undersigned's certifications in the documents delivered by the undersigned to
the Company, the Servicer, the Trustee or the Underwriters in conjunction with
the purchase of Certificates by the undersigned. You are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATE]
By: __________________________
Name, Chief Financial
or other Executive Officer
C-3
Schedule 1
Registration and Payment Instructions
Registration Instructions:
Full Legal Name of Purchaser: _______________________________________________
Name in Which Certificates Should be Registered: ____________________________
Number and Denomination of Certificates: ____________________________________
_____________________________________________________________________________
Payment Instructions:
Name of Bank: __________________________________
Address of Bank: __________________________________
Account Name: __________________________________
Account Number: __________________________________
ABA Number: __________________________________
Reference: __________________________________
Notice Information:
Address: __________________________________
__________________________________
Attention: __________________________________
Telephone: __________________________________
Telefax: __________________________________
C-4