EXHIBIT 99.1
AMENDMENT AGREEMENT
NO. 4
AMENDMENT AGREEMENT NO. 4, dated as of August 9, 2002 (this
"Amendment"), to the Receivables Purchase Agreement, dated as of April 18, 2002
(as amended, restated and/or otherwise modified from time to time, the "RPA"),
among HomePride Finance Corp. ("HomePride") and GSS HomePride Corp. (the
"Seller"), CIT Group/Sales Financing, Inc. (the "Sub-Servicer"), Greenwich
Funding Corp. (the "Investor"), the financial institutions named therein as
Banks (the "Banks") and Credit Suisse First Boston, New York Branch (the
"Agent"). Capitalized terms not otherwise defined herein shall have the meanings
attributed to them in the RPA.
WHEREAS, the parties hereto desire to amend the RPA on the
terms and subject to the provisions hereof;
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and subject to the fulfillment of
the conditions set forth below, the parties hereto agree as follows:
SECTION 1. Amendments to RPA.
1.1 Section 1.01 of the RPA is hereby amended by adding the
following definitions in their proper alphabetical order:
"Allowed Land Value" means, with respect to any
Receivable that arises in connection with a Land and Home
Contract or a Mortgage Loan, an amount equal to (a) 95%
multiplied by (b) the Appraised Value of the land on which the
related Manufactured Home is situated (or, if the land on
which the related Manufactured Home is situated consists of
more than five acres, an amount equal to (x) the Appraised
Value of the entire tract of land on which the related
Manufactured Home is situated multiplied by (y) a fraction,
the numerator of which is five, and the denominator of which
is the total amount of acres of such entire tract of land);
provided, that, in any case, all such land must be owned by
the related Obligor free and clear of any liens other than
those arising under the Mortgage securing the related Land and
Home Contract or Mortgage Loan or any other adverse claims.
"Available Funds Cap" means, with respect to any
Distribution Date, an amount equal to:
AFCR x CI x ED
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360
where:
AFCR = the Available Funds Cap Rate with
respect to such Distribution Date
CI = the average daily balance of the Capital
Investment during the Fixed Period
ending on such Distribution Date
ED = the actual number of days elapsed during
the Fixed Period ending on such
Distribution Date.
"Available Funds Cap Carryforward Amount" has the
meaning set forth in Section 5.02 hereof.
"Available Funds Cap Rate" means, with respect to any
Distribution Date, a rate equal to the greater of (X) zero and
(Y)(i) the Weighted Average Coupon Rate of all Eligible
Receivables in the Receivables Pool as of such Distribution
Date minus (ii) the sum of (a) the Servicing Fee Rate, (b) the
Sub-Servicing Fee Rate, (c) the Custodial Fee Rate with
respect to such Distribution Date and (d) 2.50%.
"California Park Receivable" means a Receivable (i)
which is related to a Manufactured Home located in a
manufactured housing park in California, (ii) which is secured
by the related Manufactured Home but not the land on which it
is situated and (iii) with respect to which, the Servicer has
received an appraisal of the value of the related Manufactured
Home from a licensed independent professional appraiser.
"Custodial Fee Rate" means, with respect to any
Distribution Date, a rate equal to the Custodial Fees payable
with respect to the immediately preceding Collection Period
expressed as a percentage of the aggregate Receivables in the
Receivables Pool as of such Distribution Date.
"Material Amendment" means, with respect to any
Transaction Document, an amendment thereto which would have a
material adverse effect upon the interests of the Investor,
the Banks or the Agent.
"New Home" means a Manufactured Home that was not
owned or occupied by any individual or individuals prior to
being purchased by the related Obligor.
"Rated Final Maturity Date" means the maturity date
of the Contract related to a Pool Receivable that has the
latest occurring maturity date of all of the Contracts related
to Pool Receivables on the Facility Termination Date.
"Servicing Fee Rate" means 0.10%.
"Sub-Servicing Fee Rate" means 1.00%.
1.2 The definition of "Acquired Property Mortgage" in Section
1.01 of the RPA is hereby deleted and the following is inserted in its
place:
"Acquired Property Mortgage" means, with
respect to any Acquired Property, any mortgage, deed of trust
or similar security instrument from the Servicer (or any other
holder of title of such Acquired Property as may be permitted
under Section 11.04(b)) to the Agent which (i) encumbers such
Acquired Property and (ii) secures all amounts which were due
on the related Contract up to the date of acquisition of such
Acquired Property.
1.3 The definition of "Advance Rate" in Section 1.01 of the
RPA is hereby deleted and the following is inserted in its place:
"Advance Rate" means, as of any date of
determination (a) 85% if the following conditions shall be
satisfied as of such date of determination: (i) the Aggregate
Outstanding Balance of all Eligible Receivables in the
Receivables Pool that are secured by New Homes shall be
greater than or equal to 80% of the Aggregate Outstanding
Balance of all Eligible Receivables in the Receivables Pool,
(ii) the Aggregate Outstanding Balance of all Eligible
Receivables in the Receivables Pool secured by multi-wide
Manufactured Homes shall be greater than or equal to 70% of
the Aggregate Outstanding Balance of all Eligible Receivables
in the Receivables Pool and (iii) the Aggregate Outstanding
Balance of all Eligible Receivables in the Receivables Pool
with respect to which the related Manufactured Home is located
in a manufactured housing park shall be less than or equal to
40% of the Aggregate Outstanding Balance of all Eligible
Receivables in the Receivables Pool and (b) 83.75% if the
following conditions shall be satisfied as of such date of
determination: (i) the Aggregate Outstanding Balance of all
Eligible Receivables in the Receivables Pool that are secured
by New Homes shall be greater than or equal to 75% of the
Aggregate Outstanding Balance of all Eligible Receivables in
the Receivables Pool, (ii) the Aggregate Outstanding Balance
of all Eligible Receivables in the Receivables Pool secured by
multi-wide Manufactured Homes shall be greater than or equal
to 65%, of the Aggregate Outstanding Balance of all Eligible
Receivables in the
Receivables Pool and (iii) the Aggregate Outstanding Balance
of all Eligible Receivables in the Receivables Pool with
respect to which the related Manufactured Home is located in a
manufactured housing park shall be less than or equal to 50%,
of the Aggregate Outstanding Balance of all Eligible
Receivables in the Receivables Pool; provided, however, if all
of the conditions set forth in the immediately-preceding
clauses (a) and (b) shall be satisfied as of such date of
determination, then the Advance Rate shall be 85%; provided,
further, however, if the Advance Rate shall not be 85% or
83.75% pursuant to the foregoing on such date of
determination, then the Advance Rate shall be 83% on such date
of determination; provided, further, however, that, at all
times after the Ratings have been obtained from the Rating
Agencies, the Advance Rate shall, from time to time, be
adjusted as necessary to maintain the Ratings so obtained from
the Rating Agencies.
1.4 The definition of "Deemed AAA Advance Percentage" in
Section 1.01 of the RPA is hereby deleted and the following is inserted
in its place:
"Deemed Advance Percentage" means as of any date of
determination, an advance percentage determined by the Agent
to be consistent with the criteria necessary for the facility
contemplated by this Agreement to receive a rating of the
highest category from one or more nationally recognized
statistical rating agencies; it being understood that such
determination shall be made by the Agent without actually
obtaining such a rating from any such statistical rating
agencies.
1.5 The RPA is hereby amended by (i) deleting each reference
to "Deemed AAA Advance Percentage" and inserting in its place a
reference to "Deemed Advance Percentage," (ii) deleting each reference
to "Deemed AAA Capital Investment Amount" and inserting in its place a
reference to "Deemed Capital Investment Amount" and (iii) deleting each
reference to "Deemed AAA Credit Enhancement Amount" and inserting in
its place a reference to "Deemed Credit Enhancement Amount"
1.6 The definition of "Eligible Receivable" in Section 1.01 of
the RPA is hereby amended by inserting at the beginning of clause (qqq)
thereof the following parenthetical ", other than a California Park
Receivable,."
1.7 The definition of "Eligible Receivable" in Section 1.01 of
the RPA is hereby further amended by adding at the end thereof the
following:
and
(cccc) , other than a California Park Receivable,
with respect to which (a) the related Amount Financed
(excluding any cost to the related Obligor to acquire or
refinance the land on which the related
Manufactured Home is or will be located which would otherwise
be includable in such Amount Financed) does not exceed 210% of
(b) the dealer invoice price for the Manufactured Home related
to such Receivable;
(dddd) , if such Receivable is a California Park
Receivable, with respect to which (a) the related Amount
Financed does not exceed 130% of the Appraised Value of the
related Manufactured Home and (b) the related manufactured
housing park has been approved by the Servicer in accordance
with its Credit and Collection Policy;
(eeee) arising in connection with a Land and Home
Contract or a Mortgage Loan only if the related Amount
Financed attributable to the land on which the related
Manufactured Home is situated does not exceed the related
Allowed Land Value; and
(ffff) with respect to which, the related promissory
note or other instrument, if any, has no marks or notations
indicating that such note or other instrument is currently
pledged or assigned to any Person other than the Agent, the
Conduit or the Banks;
1.8 The definition of "Excess Collections" in Section 1.01 of
the RPA is hereby deleted and the following is inserted in its place:
"Excess Collections" means, with respect to
any Collection Period, the amount equal to (A) the Interest
Collections, with respect to such Collection Period minus (B)
the sum of (i) an amount equal to, without duplication, all
Available Funds Cap Carryforward Amounts and all accrued
Yield, Fees and Other Amounts to be paid on the Distribution
Date immediately following such Collection Period, (ii) an
amount equal to the accrued fees and expenses to be paid to
the Custodian on such Distribution Date, (iii) the amount to
be deposited in the Reserve Account on such Distribution Date
and (iv) an amount equal to the accrued Servicing Fees and
Sub-Servicing Fees to be paid on such Distribution Date.
1.9 The definition of "Excess Collections Percentage" in
Section 1.01 of the RPA is hereby deleted and the following is inserted
in its place:
"Excess Collections Percentage" means, with
respect to any Collection Period, the Spread Percentage with
respect to such Collection Period.
1.10 Clause (c) of the definition of "Excess Concentration
Amount" in Section 1.01 of the RPA is hereby deleted and the following
is inserted in its place:
(c) the amount by which the Aggregate Outstanding
Balance of all Eligible Receivables in the Receivables Pool
that are secured by Manufactured Homes that are not New Homes
exceeds 25% of the Aggregate Outstanding Balance of all
Eligible Receivables in the Receivables Pool;
1.11 Clause (h) of the definition of "Excess Concentration
Amount" in Section 1.01 of the RPA is hereby deleted and the following
is inserted in its place:
(h) the amount by which the Aggregate Outstanding
Balance of all Eligible Receivables in the Receivables Pool
secured by Manufactured Homes that are not multi-wide
Manufactured Homes exceeds 40% of the Aggregate Outstanding
Balance of all Eligible Receivables in the Receivables Pool;
1.12 Clause (a) of the definition of "Interest Rate Hedge" in
Section 1.01 of the RPA is hereby deleted and the following is inserted
in its place:
(a) is entered into by the Seller or the Agent, on behalf of
the Seller, with an Eligible Counterparty;
1.13 The definition of "Loan to Value Ratio" in Section 1.01
of the RPA is hereby deleted and the following is inserted in its
place:
"Loan-to-Value Ratio" means, with respect to
a Receivable, the ratio of the Amount Financed with respect to
such Receivable, including prepaid finance charges, to (i)
with respect to any Receivable that is related to a
Manufactured Home that is not located in California (or that
is related to a Manufactured Home that is located in
California if the Servicer has not received an appraisal of
the value of such Manufactured Home from a licensed
independent professional appraiser) and does not arise in
connection with a Land and Home Contract, the cash selling
price paid by the related Obligor for the purchase of the
related Manufactured Home plus the sum of the related (a)
sales tax, (b) freight, (c) prepaid finance charges, (d)
closing fees to third parties and (e) insurance or (ii) with
respect to any Receivable related to a Manufactured Home
located in California (if the Servicer has received an
appraisal of the value of such Manufactured Home from a
licensed independent professional appraiser) or that arises in
connection with a Land and Home Contract, the sum of the
Appraised Value of the related Manufactured Home and, if
applicable, the land on which the related Manufactured Home is
situated, plus the sum of the related (a) sales tax, (b)
freight, (c) prepaid finance charges, (d) closing fees to
third parties and (e) insurance.
1.14 The RPA is hereby amended by deleting each reference to
"Minimum Shadow Rating" and inserting in its place a reference to
"Minimum Rating."
1.15 The definition of "Required Reserve Account Percentage"
in Section 1.01 of the RPA is hereby amended by deleting the reference
to "2.00%" in the first line thereof and inserting in its place a
reference to "3.00%."
1.16 The definition of "Shadow Rating" in Section 1.01 of the
RPA is hereby deleted and the following is inserted in its place:
"Rating" means collectively, (i) with
respect to Moody's, a rating indication consistent with a
certain rating for the financing facility provided under this
Agreement and (ii) with respect to S&P, a rating of the timely
payment of Yield, subject to the Available Funds Cap, and the
ultimate repayment of the aggregate Capital Investment on or
prior to the Rated Final Maturity Date.
1.17 The RPA is hereby amended by deleting each reference to
"Shadow Rating" and inserting in its place a reference to "Rating."
1.18 The definition of "Spread Percentage" in Section 1.01 of
the RPA is hereby deleted and the following is inserted in its place:
"Spread Percentage" means, with respect to
any Collection Period, the percentage equivalent of a fraction
(a) the numerator of which shall be the product of (x) Excess
Collections for such Collection Period and (y) a fraction, the
numerator of which shall be the number of days in the year in
which such Collection Period shall occur and the denominator
of which shall be the number of days in such Collection
Period, and (b) the denominator of which shall be the average
Aggregate Outstanding Balance of the Pool Receivables during
such Collection Period.
1.19 The definition of "Yield" in Section 1.01 of the RPA is
hereby amended by adding at the end thereof the following:
The payment of Yield on any Distribution Date, but not the
amount of Yield ultimately required to be paid hereunder, may
be limited pursuant to the provisions of Section 5.02 hereof
related to the Available Funds Cap.
1.20 The third sentence of Section 2.04 of the RPA is hereby
amended by inserting at the beginning of clause (i) thereof: "with the
consent of the Investor and the Banks,".
1.21 Section 2.05 of the RPA is hereby amended by inserting
at the beginning thereof: "On any Business Day on which the
Outstanding Balance of
the Pool Receivables is less than or equal to 10% of the greatest
Outstanding Balance of the Pool Receivables at any time during the term
of this Agreement,".
1.22 Section 5.02(b) of the RPA is hereby deleted and the
following is inserted in its place:
(b) On each Distribution Date prior to the Facility
Termination Date (other than on a Distribution Date next
following the occurrence of a Take-Out), the Agent shall
distribute amounts on deposit in the Collection Account as
follows:
FIRST, to the Servicer and Sub-Servicer in
respect of Servicing Fees and Sub-Servicing Fees due for the
immediately-preceding Collection Period, to be paid, pro rata,
based upon the respective amounts of such Servicing Fees and
Sub-Servicing Fees due to the Servicer and Sub-Servicer,
respectively;
SECOND, pro rata, to (i) the Custodian, in
payment of any Custodial Fees due for the
immediately-preceding Collection Period and (ii) the
Collection Account Bank in payment of any fees or expenses due
under the Control Agreement for the immediately-preceding
Collection Period;
THIRD, to the Agent's Account, an amount
equal to the lesser of (x) without duplication, any Available
Funds Cap Carryforward Amount with respect to any previous
Distribution Date not previously paid to the Agent's Account
(plus interest thereon at a rate equal to the rate of interest
used to determine the Yield payable on such Distribution Date)
and any accrued and unpaid Yield and Fees in respect of all
preceding Fixed Periods (including any Fixed Period ending on
such Distribution Date) owing to the Agent, the Banks and the
Investors and (y) the Available Funds Cap with respect to such
Distribution Date;
FOURTH, to the Agent's Account, an amount
equal to any accrued and unpaid Other Amounts, owing to the
Agent, the Banks and the Investors;
FIFTH, to GSS, in respect of any Management
Fees due for the immediately-preceding Collection Period;
SIXTH, to the Agent's Account, in an amount
equal to any Capital Deficiency;
SEVENTH, to the Reserve Account, until the
amount on deposit therein is equal to the Aggregate Required
Reserve Account Amount at such time;
EIGHTH, to the Agent's Account, an amount
(for purposes of this Section 5.02(b), the "Available Funds
Cap Carryforward Amount") equal to the excess, if any, of the
aggregate amounts described in clause (x) of item THIRD above
over the amount described in clause (y) of item THIRD above;
NINTH, if the senior unsecured long-term
debt rating of the Parent is downgraded below B- by S&P (or if
the Parent is put on negative credit watch by S&P at any time
that such rating is at B-) or below B3 by Moody's (or if the
Parent is put on negative credit watch by Moody's at any time
that such rating is at B3)(or if such rating is withdrawn or
cancelled by S&P or Moody's), to the Agent's Account in
payment of the Capital Investment until such time as the
Deemed Credit Enhancement Amount shall have been paid in full;
TENTH, to any Successor Servicer, in payment
of any unpaid transition costs approved by the Agent pursuant
to Section 13.03; and
ELEVENTH, any remaining amounts, to the
Excess Collections Account; provided, however, that, prior to
the Facility Termination Date, if HomePride has repurchased,
on or before the immediately-preceding Determination Date, all
Delinquent Receivables as of the end of the
immediately-preceding Collection Period in accordance with
Section 2.04(c) of the Purchase and Contribution Agreement,
then if no Termination Event or Incipient Termination Event
shall have occurred, all such remaining amounts, plus all
other amounts on deposit in the Excess Collections Account,
shall be remitted to the Seller for its own account.
1.23 Section 5.02(c) of the RPA is hereby amended by deleting
clause THIRD thereof and inserting in its place the following:
THIRD, to the Agent's Account, an amount
equal to, without duplication, any Available Funds Cap
Carryforward Amount with respect to any previous Distribution
Date not previously paid to the Agent's Account (plus interest
thereon at a rate equal to the rate of interest used to
determine the Yield payable on such Distribution Date) and any
accrued and unpaid Yield and Fees in respect of all preceding
Fixed Periods (including any Fixed Period ending on such
Distribution Date) and all Other Amounts owing to the Agent,
the Banks and the Investors
1.24 Section 5.02(d) of the RPA is hereby deleted and the
following is inserted in its place:
(d) On each Distribution Date which immediately
follows the occurrence of a Take-Out and is prior to the Facility
Termination Date, the Agent shall distribute all amounts on deposit in
the Collection Account, including, without limitation, Take-Out
Proceeds, whether such amounts are paid by the Seller, either Servicer
Party, the Agent or a third-party purchaser, as follows:
FIRST, to the Servicer and Sub-Servicer in
respect of Servicing Fees and Sub-Servicing Fees due for the
immediately-preceding Collection Period, to be paid, pro rata,
based upon the respective amounts of such Servicing Fees and
Sub-Servicing Fees due to the Servicer and Sub-Servicer,
respectively;
SECOND, pro rata, to (i) the Custodian, in
payment of any Custodial Fees due for the
immediately-preceding Collection Period and (ii) the
Collection Account Bank in payment of any fees or expenses due
under the Control Agreement for the immediately-preceding
Collection Period;
THIRD, to the Agent's Account, an amount
equal to the lesser of (x) without duplication, any Available
Funds Cap Carryforward Amount with respect to any previous
Distribution Date not previously paid to the Agent's Account
(plus interest thereon at a rate equal to the rate of interest
used to determine the Yield payable on such Distribution Date)
and any accrued and unpaid Yield and Fees in respect of all
preceding Fixed Periods (including any Fixed Period ending on
such Distribution Date) owing to the Agent, the Banks and the
Investors and (y) the Available Funds Cap with respect to such
Distribution Date;
FOURTH, to the Agent's Account, an amount
equal to any accrued and unpaid Other Amounts, owing to the
Agent, the Banks and the Investors;
FIFTH, to GSS, in respect of any Management
Fees due for the immediately-preceding Collection Period;
SIXTH, to the Agent's Account, in an amount
equal to any Capital Deficiency;
SEVENTH, to the Reserve Account, until the
amount on deposit therein is equal to the Aggregate Required
Reserve Account Amount at such time;
EIGHTH, to the Agent's Account, an amount
(for purposes of this Section 5.02(d), the "Available Funds
Cap Carryforward Amount") equal to the excess, if any, of the
aggregate amounts described
in clause (x) of item THIRD above over the amount described in
clause (y) of item THIRD above;
NINTH, if the senior unsecured long-term
debt rating of the Parent is downgraded below B- by S&P (or if
the Parent is put on negative credit watch by S&P at any time
that such rating is at B-) or below B3 by Moody's (or if the
Parent is put on negative credit watch by Moody's at any time
that such rating is at B3)(or if such rating is withdrawn or
cancelled by S&P or Moody's), to the Agent's Account in
payment of the Capital Investment until such time as the
Deemed Credit Enhancement Amount shall have been paid in full;
TENTH, to any Successor Servicer, in payment
of any unpaid transition costs approved by the Agent pursuant
to Section 13.03; and
ELEVENTH, any remaining amounts, to the
Excess Collections Account; provided, however, that, prior to
the Facility Termination Date, if HomePride has repurchased,
on or before the immediately-preceding Determination Date, all
Delinquent Receivables as of the end of the
immediately-preceding Collection Period in accordance with
Section 2.04(c) of the Purchase and Contribution Agreement,
then if no Termination Event or Incipient Termination Event
shall have occurred, all such remaining amounts, plus all
other amounts on deposit in the Excess Collections Account,
shall be remitted to the Seller for its own account.
1.25 Section 5.02(e) of the RPA is hereby amended by adding to
the end thereof the following:
If the purchase price of any Interest Rate Hedge purchased by
the Agent shall exceed the amounts in the Reserve Account and
the Excess Collections Account which are available to be
applied to such purchase price, such excess shall be treated
as an Other Amount and be repaid to the Agent in accordance
with the provisions of Section 5.02.
Without limiting any other provision hereof, the
Seller shall purchase an Interest Rate Hedge immediately upon
the Agent's request that such Interest Rate Hedge be purchased
(whether or not there exists sufficient funds in the Reserve
Account to purchase such Interest Rate Hedge). In connection
with any such purchase of an Interest Rate Hedge, the Agent
may, in its sole discretion, direct the Collection Account
Bank in writing, and the Collection Account Bank shall, upon
such direction, withdraw such amounts on deposit in the
Reserve Account (and if the Reserve Account is depleted, then
the Excess Collections Account) as the Agent shall designate
(in its sole discretion) for payment, in whole or in
part, of (or to reimburse the Seller for) the purchase price
of such Interest Rate Hedge.
1.26 The third line of Section 9.11 of the RPA is hereby
amended by inserting immediately following the parenthetical therein
the phrase "and each Rating Agency."
1.27 Section 9.12(a) of the RPA is hereby deleted and the
following is inserted in its place:
(a) The Seller shall at all times maintain at least
two independent directors (each, an "Independent Director")
each of whom (i) is in fact independent, (ii) does not have
any direct financial interest or any material indirect
financial interest in the Seller or HomePride, or in any
Affiliate of the Seller or HomePride, (iii) is not, and has
not been, connected with the Seller or HomePride or any
Affiliate of the Seller or HomePride as an officer, employee,
promoter, underwriter, trustee, partner or person performing
similar functions and is not a member of the immediate family
of any such officer or employee and (iv) is not, and has not
been, a director (other than as an independent director for an
Affiliate which is a limited special purpose corporation) or
stockholder of any Affiliate of the Seller or HomePride and is
not a member of the immediate family of any such director or
stockholder.
1.28 Section 9.12(j) of the RPA is hereby deleted and the
following is inserted in its place:
(j) The Seller shall ensure that all material
transactions between the Seller and any of its Affiliates
shall be only on an arm's-length basis and shall receive the
approval of its board of directors, including at least both
Independent Directors.
1.29 Section 9.21 of the RPA is hereby deleted and the
following is inserted in its place:
SECTION 9.21 Minimum Rating. Each of the Seller and
the Servicer shall take such actions as are reasonably
requested by the Agent and as otherwise are necessary to
obtain and thereafter maintain from (i) Moody's a rating
indication consistent with an "A2" for the financing facility
provided hereunder and (ii) S&P, a rating of the timely
payment of Yield, subject to the Available Funds Cap, and the
ultimate repayment of the aggregate Capital Investment on or
prior to the Rated Final Maturity Date of at least "A"
(collectively, the "Minimum Rating") on or prior to August 9,
2002 (including, without limitation, modifying the calculation
of Advance Rate and Excess Concentration Amount and agreeing
to other amendments to this Agreement and the other
Transaction Documents (including, without limitation,
amendments of provisions with respect to
Eligible Receivables criteria) to the extent necessary to
obtain and thereafter maintain such a Minimum Rating).
Moody's and S&P intend to monitor the aforementioned ratings
on an ongoing basis subject to the conditions agreed to by
Moody's and S&P, respectively.
1.30 The first sentence of Section 11.04(c) of the RPA is
hereby deleted and the following is inserted in its place:
Upon acquisition of an Acquired Property by the Seller, the
Servicer shall prepare an Acquired Property Mortgage and file
it for recordation in the appropriate office of the
jurisdiction in which such Acquired Property is located. Such
Acquired Property Mortgage shall be in a form appropriate in
such jurisdiction. The Servicer shall furnish such Acquired
Property Mortgage (together with evidence of such filing) to
the Custodian within twenty Business Days of acquiring a deed
in respect of such Acquired Property. The Servicer shall
furnish each recorded Acquired Property Mortgage (together
with evidence of recordation) to the Custodian promptly upon
receipt thereof.
1.31 The first line of Section 11.09(a) of the RPA is hereby
amended by deleting the phrase "Each Servicer Party shall deliver to
the Seller and the Agent" therein and inserting in its place the phrase
"Each Servicer Party shall deliver to the Seller, the Agent and each
Rating Agency."
1.32 The first line of Section 11.09(b) of the RPA is hereby
amended by deleting the phrase "Each Servicer Party shall deliver to
the Seller and the Agent" therein and inserting in its place the phrase
"Each Servicer Party shall deliver to the Seller, the Agent and each
Rating Agency."
1.33 The fourth line of Section 11.10(a) of the RPA is hereby
amended by deleting the phrase "deliver to the Seller and the Agent"
therein and inserting in its place the phrase "deliver to the Seller,
the Agent and each Rating Agency."
1.34 Section 11.14(e) of the RPA is hereby amended by adding
at the end thereof the following:
The Servicer shall promptly deposit into the Collection
Account, the Reserve Account, any Lock-Box Account or the
Excess Collections Account, as applicable, an amount of funds
equal to any losses incurred as a result of the liquidation of
any investment of funds in such account prior to its stated
maturity.
1.35 Section 12.05 of the RPA is hereby amended by adding at
the end thereof the following:
The Seller shall promptly deliver to each Rating Agency notice
of the replacement of any Servicer Party hereunder.
1.36 Section 14.01 of the RPA is hereby amended by deleting
the period at the end of clause (p) thereof and by adding immediately
after clause (p) thereof the following:
or
(q) (i) Moody's reduces its Rating to "A3" or "Baa1"
and does not increase its Rating back to at least "A2" within
30 days of such event, (ii) Moody's reduces its Rating below
"Baa1" or (iii) Moody's suspends or withdraws it Rating; or
(r) (i) S&P reduces its Rating to "A-" or "BBB+" and
does not increase its Rating back to at least "A" within 30
days of such event, (ii) S&P reduces its Rating below "BBB+"
or (iii) S&P suspends or withdraws it Rating.
1.37 Section 14.03 of the RPA is hereby amended by deleting
the word "and" at the end of clause (t) thereof and adding immediately
after clause (u) thereof the following:
or
(v) any Available Funds Cap Carryforward Amount is
not paid in full on any Distribution Date and such failure to
pay shall remain unremedied for one (1) Business Day.
1.38 Section 17.02 of the RPA is hereby amended by adding at
the end thereof the following:
No Material Amendment to this Agreement shall become effective
unless (i) the Agent shall have received prior written
confirmation from S&P that its Rating will not be withdrawn or
downgraded as a result of such Material Amendment and (ii) the
Agent shall have provided ten Business Day's prior notice of
such Material Amendment to Moody's and the Agent shall not
have been advised by Moody's that its Rating will be
withdrawn or downgraded as a result of such Material
Amendment.
Notwithstanding any other term hereof, none of the
Agent, the Investor or the Banks shall waive any provision of
the defined term Eligible Receivable or any representation or
warranty hereunder, in each case, to the extent that it
relates to the Pool Receivables being free and clear of any
lien or other right that may impair the interests of the
Investors or the Banks under this Agreement or the Agent's
security interest or other interests in Pool Receivables or
related collateral.
1.39 Section 17.06 of the RPA is hereby deleted and the
following is inserted in its place:
SECTION 17.06 No Proceedings. (a) Each of the Seller,
each Servicer Party, the Agent, each Investor, each Bank, each
assignee of a Receivable Interest or any interest therein and
each entity which enters into a commitment to purchase
Receivable Interests or interests therein hereby agrees that
it will not institute against the Conduit any proceeding of
the type referred to in clause (a) of the definition of Event
of Bankruptcy so long as any commercial paper or other senior
indebtedness issued by Conduit shall be outstanding or there
shall not have elapsed one year plus one day since the last
day on which any such commercial paper or other senior
indebtedness shall have been outstanding.
(b) Each of the Seller, each Servicer Party, the
Agent, each Investor, each Bank, each assignee of a Receivable
Interest or any interest therein and each entity which enters
into a commitment to purchase Receivable Interests or
interests therein hereby agrees that it will not institute
against the Seller or HomePride SPV any proceeding of the type
referred to in clause (a) of the definition of Event of
Bankruptcy so long as the Seller or the Servicer owe any
amounts hereunder or there shall not have elapsed one year
plus one day since the last day on which any such amounts were
owed.
SECTION 2. Conditions to Effectiveness. The amendments contained in
this Amendment shall not become effective until the Agent shall have received an
executed counterpart of this Amendment duly executed by each party thereto.
SECTION 3. Representations and Warranties. Each of the Seller and the
Servicer reaffirms and restates the representations and warranties set forth in
the RPA and any agreement, document or instrument related thereto, and certifies
that such representations and warranties are true and correct on the date hereof
with the same force and effect as if made on such date, except as they may
specifically refer to an earlier date, in which case they were true and correct
as of such date. In addition, the Seller and the Servicer each represents and
warrants (which representations and warranties shall survive the execution and
delivery hereof) that (a) no Termination Event (nor any event that but for
notice or lapse of time or both would constitute an Termination Event) shall
have occurred and be continuing as of the date hereof nor shall any Termination
Event (nor any event that but for notice or lapse of time or both would
constitute a Termination Event) occur due to this Amendment becoming effective,
(b) the Seller and the Servicer each has the corporate power and authority to
execute and deliver this Amendment and has taken or caused to be taken all
necessary corporate actions to authorize the execution and delivery of this
Amendment, and (c) no consent of any other person (including, without
limitation, shareholders or creditors of the Seller or the Servicer), and no
action of, or filing with any
governmental or public body or authority is required to authorize, or is
otherwise required in connection with the execution and performance of this
Amendment other than such that have been obtained.
SECTION 4. Reference to and Effect on the Documents.
4.1 On and after the date on which this Amendment becomes
effective pursuant to Section 2 of this Amendment, each reference in
the RPA to "this Agreement" shall refer to the RPA as amended hereby
and each reference in the RPA to "hereunder", "hereof", "herein", or
words of like import shall mean and be a reference to the RPA as
amended hereby. On and after the date on which this Amendment becomes
effective pursuant to Section 2 of this Amendment, each reference to
the RPA in any agreement, document or instrument related to the RPA
shall mean and be a reference to the RPA as amended hereby.
4.2 Except as expressly amended above, the RPA shall remain in
full force and effect and is hereby ratified and confirmed in all
respects.
4.3 The execution and delivery of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Investor, any Bank or the Agent under the RPA
nor constitute a waiver of any provision of the RPA.
SECTION 5. Governing Law. THIS AMENDMENT SHALL, IN ACCORDANCE WITH
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICTS
OF LAW PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY
OTHER JURISDICTION.
SECTION 6. Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed an original and all
of which when taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
[Signature pages to follow.]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
SELLER: GSS HOMEPRIDE CORP.
By: /s/ Michelle Moezzi
---------------------
Name: Michelle Moezzi
Title: Vice President
INVESTOR: GREENWICH FUNDING CORP.
By: Credit Suisse First Boston, New York
Branch, as its Attorney-In-Fact
By: /s/ Mark Golombeck
--------------------------
Name: Mark Golombeck
Title: Vice President
By: /s/ Mark Lengel
--------------------------
Name: Mark Lengel
Title: Vice President
BANK: CREDIT SUISSE FIRST BOSTON, NEW
YORK BRANCH
By: /s/ Anthony Giordano
--------------------------
Name: Anthony Giordano
Title: Director
By: /s/ Alberto Zonca
--------------------------
Name: Alberto Zonca
Title: Vice President
AGENT: CREDIT SUISSE FIRST BOSTON,NEW
YORK BRANCH, AS AGENT
By: /s/ Anthony Giordano
-----------------------------
Name: Anthony Giordano
Title: Director
By: /s/ Alberto Zonca
-----------------------------
Name: Alberto Zonca
Title: Vice President
SERVICER: HOMEPRIDE FINANCE CORP., AS SERVICER
By: /s/ John J. Collins, Jr.
-----------------------------
Name: John J. Collins, Jr.
Title: V.P.
SUB-SERVICER: THE CIT GROUP/SALES FINANCING, INC.
By:
-----------------------------
Name:
Title: