EXECUTION COPY
POOLING AND SERVICING AGREEMENT
among
ASSET BACKED SECURITIES CORPORATION
as Depositor
ORIGEN FINANCIAL L.L.C.
as Seller and Servicer
VANDERBILT MORTGAGE AND FINANCE, INC.
as Backup Servicer
and
BANK ONE, NATIONAL ASSOCIATION
as Trustee
Origen Manufactured Housing Contract Senior/Subordinate
Asset-Backed Certificates, Series 2002-A
Dated as of March 1, 2002
Table of Contents
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. General....................................................................................3
SECTION 1.02. Specific Terms.............................................................................3
SECTION 1.03. Calculations..............................................................................33
ARTICLE II
ESTABLISHMENT OF TRUST; TRANSFER OF CONTRACTS
SECTION 2.01. Closing...................................................................................33
SECTION 2.02. Conditions to the Closing.................................................................34
SECTION 2.03. Acceptance by Trustee.....................................................................35
SECTION 2.04. REMIC Provisions..........................................................................37
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties Regarding the Seller.......................................39
SECTION 3.02. Representations and Warranties Regarding Each Contract....................................40
SECTION 3.03. Reserved..................................................................................44
SECTION 3.04. Representations and Warranties Regarding the Contracts in the Aggregate...................44
SECTION 3.05. Representations and Warranties Regarding the Contract Files...............................46
SECTION 3.06. Repurchase of Contracts or Substitution of Contracts for Breach of
Representations and Warranties......................................................46
SECTION 3.07. No Repurchase or Substitution Under Certain Circumstances.................................48
ARTICLE IV
PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS
SECTION 4.01. Custody of Contracts......................................................................49
SECTION 4.02. Filings...................................................................................50
SECTION 4.03. Name Change or Relocation.................................................................50
SECTION 4.04. Chief Executive Office and Place of Incorporation.........................................50
SECTION 4.05. Costs and Expenses........................................................................51
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ARTICLE V
SERVICING OF CONTRACTS
SECTION 5.01. Responsibility for Contract Administration................................................51
SECTION 5.02. Standard of Care..........................................................................51
SECTION 5.03. Records...................................................................................52
SECTION 5.04. Inspection; Computer Tape.................................................................52
SECTION 5.05. Certificate Account.......................................................................52
SECTION 5.06. Enforcement...............................................................................53
SECTION 5.07. Trustee to Cooperate......................................................................55
SECTION 5.08. Costs and Expenses........................................................................55
SECTION 5.09. Maintenance of Insurance..................................................................56
SECTION 5.10. Repossession..............................................................................57
SECTION 5.11. Subservicing Arrangements.................................................................58
SECTION 5.12. Retitling; Security Interests.............................................................58
SECTION 5.13. Covenants, Representations and Warranties of Servicer.....................................59
SECTION 5.14. Payment of Taxes..........................................................................60
ARTICLE VI
REPORTS AND TAX MATTERS
SECTION 6.01. Monthly Reports...........................................................................61
SECTION 6.02. Certificate of Servicing Officer..........................................................61
SECTION 6.03. Other Data................................................................................61
SECTION 6.04. Annual Report of Accountants; Annual Statement of Compliance..............................61
SECTION 6.05. Statements to Certificateholders..........................................................62
SECTION 6.06. Payment of Taxes..........................................................................64
SECTION 6.07. Reports to the Commission.................................................................65
ARTICLE VII
SERVICE TRANSFER
SECTION 7.01. Event of Termination......................................................................66
SECTION 7.02. Transfer..................................................................................67
SECTION 7.03. Backup Servicer to Act, Appointment of Successor..........................................68
SECTION 7.04. Notification to Certificateholders........................................................69
SECTION 7.05. Effect of Transfer........................................................................69
SECTION 7.06. Transfer of Certificate Account...........................................................69
ARTICLE VIII
PAYMENTS
SECTION 8.01. Monthly Payments..........................................................................70
ii
SECTION 8.02. Permitted Withdrawals from the Certificate Account........................................70
SECTION 8.03. Payments..................................................................................71
SECTION 8.04. Monthly Advances..........................................................................75
SECTION 8.05. The Servicer's Purchase Option; Auction Sale; Additional Principal Distribution
Amount..............................................................................76
SECTION 8.06. Trustee Reimbursement Account.............................................................78
SECTION 8.07. The Distribution Account..................................................................78
ARTICLE IX
THE CERTIFICATES
SECTION 9.01. The Certificates..........................................................................79
SECTION 9.02. Registration of Transfer and Exchange of Certificates.....................................80
SECTION 9.03. No Charge; Disposition of Void Certificates...............................................85
SECTION 9.04. Mutilated, Destroyed, Lost or Stolen Certificates.........................................85
SECTION 9.05. Persons Deemed Owners.....................................................................85
SECTION 9.06. Access to List of Certificateholders' Names and Addresses.................................85
SECTION 9.07. Authenticating Agents.....................................................................86
ARTICLE X
INDEMNITIES; CERTAIN MATTERS RELATING TO THE SELLER, THE SERVICER AND THE DEPOSITOR
SECTION 10.01. Seller's Indemnities.....................................................................86
SECTION 10.02. Liabilities to Obligors..................................................................86
SECTION 10.03. Tax Indemnification......................................................................87
SECTION 10.04. Servicer's Indemnities...................................................................87
SECTION 10.05. Operation of Indemnities.................................................................87
SECTION 10.06. Liability of the Seller, the Servicer, the Backup Servicer and the Depositor.............87
SECTION 10.07. Merger or Consolidation of, or Assumption of the Obligations of, the Seller, the
Servicer, the Backup Servicer or the Depositor......................................88
SECTION 10.08. Limitation on Liability of Servicer, the Backup Servicer, Others.........................88
SECTION 10.09. Servicer and Backup Servicer Not to Resign...............................................89
ARTICLE XI
THE TRUSTEE
SECTION 11.01. Duties of Trustee........................................................................90
SECTION 11.02. Certain Matters Affecting the Trustee....................................................91
SECTION 11.03. Trustee Not Liable for Certificates or Contracts.........................................92
SECTION 11.04. Rights of Certificateholders to Direct Trustee and to Waive Event of Termination.........92
iii
SECTION 11.05. Trustee's Fees and Expenses..............................................................93
SECTION 11.06. Eligibility Requirements for Trustee.....................................................94
SECTION 11.07. Resignation or Removal of Trustee........................................................95
SECTION 11.08. Successor Trustee........................................................................95
SECTION 11.09. Merger or Consolidation of Trustee.......................................................96
SECTION 11.10. Tax Returns..............................................................................96
SECTION 11.11. Obligor Claims...........................................................................96
SECTION 11.12. Appointment of Co-Trustee or Separate Trustee............................................97
SECTION 11.13. Agents of Trustee........................................................................98
SECTION 11.14. Representations and Warranties of the Trustee............................................98
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Servicer and Backup Servicer Not to Assign Duties or Resign; Delegation of
Servicing Functions.................................................................99
SECTION 12.02. Maintenance of Office or Agency..........................................................99
SECTION 12.03. Termination..............................................................................99
SECTION 12.04. Acts of Certificateholders..............................................................101
SECTION 12.05. Calculations............................................................................102
SECTION 12.06. Assignment or Delegation by Seller......................................................102
SECTION 12.07. Amendment...............................................................................102
SECTION 12.08. Notices.................................................................................104
SECTION 12.09. Merger and Integration..................................................................105
SECTION 12.10. Headings................................................................................105
SECTION 12.11. Governing Law...........................................................................105
SECTION 12.12. Recordation of Agreement................................................................106
SECTION 12.13. Limitation on Rights of Certificateholders..............................................106
SECTION 12.14. Severability of Provisions..............................................................107
SECTION 12.15. Certificates Nonassessable and Fully Paid...............................................107
SECTION 12.16. Third-Party Beneficiaries...............................................................107
SECTION 12.17. Counterparts............................................................................107
SECTION 12.18. Effect of Headings and Table of Contents................................................107
EXHIBIT A FORM OF CLASS A CERTIFICATE...............................................................A-1
EXHIBIT B FORM OF CLASS M-[1][2] CERTIFICATE........................................................B-1
EXHIBIT C-1 FORM OF CLASS B-1 CERTIFICATE...........................................................C-1-1
EXHIBIT C-2 FORM OF CLASS X CERTIFICATE.............................................................C-2-1
EXHIBIT C-3 FORM OF CLASS R CERTIFICATE.............................................................C-3-1
EXHIBIT D FORM OF ASSIGNMENT........................................................................D-1
EXHIBIT E FORM OF CERTIFICATE OF OFFICER............................................................E-1
EXHIBIT F FORM OF OPINION OF COUNSEL................................................................F-1
EXHIBIT G FORM OF TRUSTEE'S ACKNOWLEDGEMENT.........................................................G-1
EXHIBIT H FORM OF CUSTODIAN'S ACKNOWLEDGMENT........................................................H-1
EXHIBIT I FORM OF CERTIFICATE OF SERVICING OFFICER..................................................I-1
EXHIBIT J FORM OF INVESTMENT LETTER.................................................................J-1
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EXHIBIT K FORM OF TRANSFEROR CERTIFICATE............................................................K-1
EXHIBIT L-1 FORM OF CERTIFICATE REGARDING REPURCHASED
CONTRACTS...............................................................................L-1-1
EXHIBIT L-2 FORM OF CERTIFICATE REGARDING SUBSTITUTED
CONTRACTS...............................................................................L-2-1
EXHIBIT M FORM OF REPRESENTATION LETTER.............................................................M-1
EXHIBIT N FORM OF MONTHLY REPORT....................................................................N-1
EXHIBIT O RESERVED..................................................................................O-1
EXHIBIT P FORM OF ERISA REPRESENTATION LETTER.......................................................P-1
EXHIBIT Q FORM OF RESIDUAL TRANSFER AFFIDAVIT.......................................................Q-1
EXHIBIT R INELIGIBLE FORECLOSURE CONTRACT SCHEDULE..................................................R-1
v
AGREEMENT, dated as of March 1, 2002, among Asset Backed
Securities Corporation, a corporation organized and existing under the laws of
the State of Delaware, as Depositor, (the "Depositor"), Origen Financial
L.L.C., a limited liability company formed and existing under the laws of the
State of Delaware, as the seller and the servicer (in such capacities, the
"Seller" and the "Servicer"), Vanderbilt Mortgage and Finance, Inc., as the
backup servicer (the "Backup Servicer") and Bank One, National Association, a
national banking association, not in its individual capacity but solely as
Trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust that is hereby
conveyed to the Trustee in return for the Certificates. The Trust for federal
income tax purposes will consist of two REMICs (the "Subsidiary REMIC" and the
"Master REMIC"). The Certificates will represent the entire beneficial
ownership interest in the Trust. The assets of the Trust will constitute the
assets of the Subsidiary REMIC and the Subsidiary REMIC will issue eleven
uncertificated regular interests that will be held as the sole assets of the
Master REMIC. The Class R-1 and Class R-2 Interests will be the residual
interests in each of the Subsidiary REMIC and the Master REMIC, respectively.
The Class A, Class M, Class B and Class X Certificates will represent the
"regular interests" in the Master REMIC and the Class R Certificates will
represent the single "residual interest" in each of the Subsidiary REMIC and
the Master REMIC. All interests created hereby will be retired on or before
the Latest Possible Maturity Date, which shall be the Distribution Date in
July 2031.
The Subsidiary REMIC will be evidenced by the Class
1-Accrual Interest (the "REMIC 1 Accrual Class"), and the Class 1-A-1, Class
1-A-2, Class 1-A-3, Class 1-A-4, Class 1-M-1, Class 1-M-2, Class 1-B-1
Interests (the "REMIC 1 Accretion Directed Classes"), which will be
uncertificated and non-transferable and are hereby designated as the "regular
interests" in the Subsidiary REMIC. The REMIC 1 Accrual Class and each REMIC 1
Accretion Directed Class are each hereby designated regular interests in the
Subsidiary REMIC for federal income tax purposes and will have the following
designations, initial principal balances, pass-through rates, and
Corresponding Classes of the Master REMIC Certificates ("Corresponding
Classes"):
REMIC 1 Interests Initial Balance Pass-Through Rate Corresponding Class
----------------- --------------- ----------------- -------------------
Class 1-A-1 Interest (1/2 initial Corresponding Class Weighted Average A-1
Certificate Balance) Net Contract Rate
Class 1-A-2 Interest (1/2 initial Corresponding Class Weighted Average A-2
Certificate Balance) Net Contract Rate
Class 1-A-3 Interest (1/2 initial Corresponding Class Weighted Average A-3
Certificate Balance) Net Contract Rate
Class 1-A-4 Interest (1/2 initial Corresponding Class Weighted Average A-4
Certificate Balance) Net Contract Rate
Class 1-M-1 Interest (1/2 initial Corresponding Class Weighted Average M-1
Certificate Balance) Net Contract Rate
Class 1-M-2 Interest (1/2 initial Corresponding Class Weighted Average M-2
Certificate Balance) Net Contract Rate
Class 1-B-1 Interest (1/2 initial Corresponding Class Weighted Average B-1
Certificate Balance) Net Contract Rate
Class 1 Accrual Interest (1/2 the Pool Principal Balance Weighted Average N/A
plus 1/2 Closing Date Net Contract Rate
Overcollateralization Amount)
On each Distribution Date, 50% of the increase in the
Overcollateralization Amount will be payable as a reduction of the principal
balances of the REMIC 1 Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralization
Amount that is attributable to a reduction in the Class Principal Balance of
its Corresponding Class) and will be accrued and added to the principal
balance of the REMIC 1 Accrual Class. All payments of scheduled principal and
prepayments of principal generated by the Contracts shall be allocated 50% to
the REMIC 1 Accrual Class, and 50% to the REMIC 1 Accretion Directed Classes
(principal payments shall be allocated among such REMIC 1 Accretion Directed
Classes in an amount equal to 50% of the principal amounts allocated to their
respective Corresponding Classes), until paid in full. Notwithstanding the
above, principal payments that are attributable to an Overcollateralization
Release Amount shall be allocated to the REMIC 1 Accrual Class (until paid in
full) and payable to the Class X Certificates. Realized losses shall be
applied such that after all distributions have been made on each Distribution
Date (i) the principal balances of each of the REMIC 1 Accretion Directed
Classes is equal to 50% of the Class Principal Balance of its respective
Corresponding Class, and the REMIC 1 Accrual Class is equal to 50% of the
aggregate principal balance of the Contracts plus 50% of the
Overcollateralization Amount.
The following table sets forth characteristics of the
Certificates, each of which, except for the Class R Certificates, is hereby
designated a "regular interest" in the Master REMIC, together with the minimum
denominations and integral multiples in excess thereof in which such Classes
shall be issuable (except that one Certificate of each Class of Certificates
may be issued in a different amount and, in addition, one Class R Certificate
representing the Tax Matters Person Certificate may be issued in a different
amount):
Initial Class Integral Multiples in
Certificate Balance Pass-Through Rate Minimum Denomination Excess of Minimum
------------------- ----------------- -------------------- ----------------------
Class A-1 $35,243,000 1 Month LIBOR + 0.24% $1,000 $1
(1)(2)
Class A-2 $24,362,000 5.22% (1) $1,000 $1
Class A-3 $14,300,000 6.17% (1) $1,000 $1
Class A-4 $23,295,000 7.17% (1) $1,000 $1
Class M-1 $11,475,000 7.87% (1) $1,000 $1
Class M-2 $10,800,000 8.85% (1) $1,000 $1
Class B-1 $10,125,000 9.50% (1) $1,000 $1
Class X (3) (4) N/A N/A
Class R $0 N/A 20% N/A
(1) As to any Distribution Date, this rate shall equal the lesser of (x) the
rate set forth above and (y) the Weighted Average Net Contract Rate.
2
(2) On the first Distribution Date, 1 Month LIBOR will equal 1.90%.
(3) On each Distribution Date, the Class X Certificates will have a notional
balance equal to the Pool Principal Balance.
(4) As to any Distribution Date, the Pass-Through Rate for the Class X
Certificates shall equal the excess of: (i) the Weighted Average Adjusted Net
Contract Rate over (ii) the product of: (A) two and (B) the weighted average
Pass-Through Rate of the REMIC 1 Regular Interests, where the REMIC 1 Accrual
Class is subject to a cap equal to zero and each REMIC 1 Accretion Directed
Class is subject to a cap equal to the Pass-Through Rate on its Corresponding
Class.
In consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. General.
For the purpose of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, the terms defined
in this Article include the plural as well as the singular, the words
"herein," "hereof" and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section or other
subdivision, and Section references refer to Sections of the Agreement.
SECTION 1.02. Specific Terms.
"Accrual Period" means, for any Distribution Date (i) with
respect to the Class A-1 Certificates, the period from the preceding
Distribution Date (or the Closing Date for the first Distribution Date)
through and including the day preceding the current Distribution Date and (ii)
with respect to any Class of Certificates other than the Class A-1
Certificates, the calendar month preceding the month in which the current
Distribution Date occurs.
"Additional Contract" means a Contract identified in the
List of Contracts that is not an Initial Contract.
"Additional Principal Distribution Amount" means, as to any
Distribution Date, the lesser of (1) the Distributable Excess Spread and (2)
the Overcollateralization Deficiency Amount.
"Adjusted Certificate Principal Balance" means, as of any
Distribution Date, the sum of the Class A Principal Balance, the Class M-1
Adjusted Principal Balance, the Class M-2 Adjusted Principal Balance and the
Class B-1 Adjusted Principal Balance as of that Distribution Date.
3
"Advance Payment" means any payment by an Obligor in advance
of the related Due Period in which it would be due under such Contract and
which payment is not a Principal Prepayment.
"Affiliate" of any specified Person means any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling" or
"controlled" have meanings correlative to the foregoing.
"Agreement" means this Pooling and Servicing Agreement, as
the same may be amended or supplemented from time to time.
"Amount Available" means, as to any Distribution Date, an
amount equal to
(a) the sum of
(i) the amount on deposit in the Certificate Account as of
the close of business on the last day of the related
Due Period,
(ii) any amounts required to be deposited in the
Distribution Account on the Business Day immediately
preceding such Distribution Date pursuant to Section
5.09, and
(iii) the amount of any Monthly Advance for such
Distribution Date, minus
(b) amounts permitted to be withdrawn by the Servicer from
the Certificate Account pursuant to clauses (b) - (f), inclusive, of Section
8.02 as of the close of business on the Business Day preceding such
Distribution Date.
"Applicants" has the meaning assigned in Section 9.06.
"Appraised Value" means, with respect to any Manufactured
Home, the value of such Manufactured Home as determined by a professional
appraiser (who may be an employee of the Servicer).
"Assumption Fee" means any assumption or other similar fee
paid by the Obligor on a Contract.
"Auction Date" has the meaning assigned in Section 8.05(e).
"Authenticating Agent" means any authenticating agent
appointed pursuant to Section 9.07.
"Average Sixty-Day Delinquency Ratio" means the arithmetic
average of the Sixty-Day Delinquency Ratios for such Distribution Date and for
the two immediately preceding Distribution Dates.
4
"Backup Servicer" means Vanderbilt Mortgage and Finance,
Inc. its successors in interest or any successor servicer appointed as herein
provided.
"Backup Servicing Fee" means with respect to any
Distribution Date, an amount equal to $5,000 per month for months 1 through 84
after the Closing Date, $4,000 per month for months 85 through 168 and $3,000
per month thereafter. The Backup Servicing Fee shall be payable by the
Servicer pursuant to Section 8.03(a). Upon the occurrence of a Service
Transfer as contemplated by Section 7.01, payment of the Backup Servicing Fee
shall cease and the Backup Servicer, in its role as Servicer hereunder, shall
be paid the Monthly Servicing Fee. In addition, the Backup Servicer shall be
entitled to an initial commitment fee of $25,000.
"Backup Servicing Fee Rate" means for any Distribution Date
a per annum rate expressed as the product of 12 and a fraction the numerator
of which is the Backup Servicing Fee for that Distribution Date and the
denominator of which is the Pool Principal Balance as of the first day of the
related Due Period.
"Book-Entry Certificate" means any Certificate registered in
the name of the Depository or its nominee ownership of which is reflected on
the books of the Depository or on the books of a person maintaining an account
with such Depository (directly or as an indirect participant in accordance
with the rules of such Depository).
"Business Day" means any day other than (a) a Saturday or a
Sunday, or (b) a day on which banking institutions in the States of New York,
Virginia, Michigan or the state in which the Corporate Trust Office is located
are authorized or obligated by law, executive order or governmental decree to
be closed.
"Certificate Account" means the account established and
maintained pursuant to Section 5.05.
"Certificate Owner" means the person who is the beneficial
owner of a Book-Entry Certificate.
"Certificate Register" means the register maintained
pursuant to Section 9.02.
"Certificate Registrar" or "Registrar" means the registrar
appointed pursuant to Section 9.02.
"Certificateholder" or "Holder" means the person in whose
name a Certificate is registered on the Certificate Register, except that,
solely for the purposes of giving any consent, waiver, request or demand
pursuant to this Agreement, any Regular Certificate registered in the name of
the Depositor, the Seller, the Servicer or any of their Affiliates shall be
deemed not to be outstanding and the Percentage Interest evidenced thereby
shall not be taken into account in determining whether the requisite
Percentage Interest necessary to effect any such consent, request, waiver or
demand has been obtained; provided, however, that, solely for the purpose of
determining whether the Trustee is entitled to rely upon any such consent,
waiver, request or demand, only Regular Certificates which the Trustee knows
to be so owned shall be so disregarded.
5
"Certificates" means the Class A, Class M, Class B, Class X
and Class R Certificates, collectively.
"Class A," "Class M," "Class B," or "Class X" means
pertaining to each Class of Class A Certificates, Class M Certificates, Class
B and/or Class X Certificates, as the case may be.
"Class A Certificate" means any one of the Class A-1, Class
A-2, Class A-3 and Class A-4 Certificates executed and delivered by the
Trustee substantially in the form set forth in Exhibit A and evidencing an
interest designated as a "regular interest" in the Master REMIC for purposes
of the REMIC Provisions.
"Class A Distribution Amount" means, as to any Distribution
Date, the lesser of (a) the Amount Available for such Distribution Date (less
any amounts paid to the Trustee, the Servicer or the Backup Servicer pursuant
to Section 8.03(a)(1) through (2)) and (b) the Class A Formula Distribution
Amount for such Distribution Date; provided that after the Class A-4
Cross-Over Date the Class A Distribution Amount shall be zero.
"Class A Formula Distribution Amount" means, as to any
Distribution Date, an amount equal to the sum of (a) interest (calculated in
the manner specified in Section 1.03) at (i) the Class A-1 Pass-Through Rate
on the Class A-1 Principal Balance, (ii) the Class A-2 Pass-Through Rate on
the Class A-2 Principal Balance, (iii) the Class A-3 Pass-Through Rate on the
Class A-3 Principal Balance, and (iv) the Class A-4 Pass-Through Rate on the
Class A-4 Principal Balance, in each case calculated immediately prior to such
Distribution Date, (b) the aggregate Unpaid Class A Interest Shortfall, if
any, (c) the Class A Percentage of the Formula Principal Distribution Amount,
(d) any Unpaid Class A Principal Shortfall and (e) any Additional Principal
Distribution Amount to be distributed to the Class A Certificates pursuant to
Section 8.03(a)(12); provided, however, that the aggregate of all amounts
distributed for all Distribution Dates pursuant to clauses (c), (d) and (e)
shall not exceed the sum of the Original Class A-l Principal Balance, the
Original Class A-2 Principal Balance, the Original Class A-3 Principal Balance
and the Original Class A-4 Principal Balance.
"Class A Interest Distribution Amount" means, as to each
Class of Class A Certificates and any Distribution Date, the sum of the
amounts specified in clause (a)(i), (a)(ii), (a)(iii) and (a)(iv), as
applicable, of the definition of the term "Class A Formula Distribution
Amount" plus the Unpaid Class A Interest Shortfall, if any, with respect to
such Class.
"Class A Interest Shortfall" means, as to any Distribution
Date and with respect to each Class of Class A Certificates, the amount, if
any, by which the amount distributed to Holders of such Class of Class A
Certificates on such Distribution Date pursuant to Section 8.03(a)(3) is less
than the Class A Interest Distribution Amount for such Class.
"Class A Percentage" means, as to any Distribution Date, a
fraction, expressed as a percentage, the numerator of which is the Class A
Principal Balance and the denominator of which is the sum of (a) the Class A
Principal Balance, (b) if the Class M-1 Distribution Test is satisfied, the
Class M-1 Principal Balance, otherwise zero, (c) if the Class M-2 Distribution
Test
6
is satisfied, the Class M-2 Principal Balance, otherwise zero, and (d) if
the Class B Distribution Test is satisfied, the Class B-1 Principal Balance,
otherwise zero.
"Class A Principal Balance" means, as to any Distribution
Date, the sum of the Class Principal Balances of the Class A Certificates.
"Class A Principal Deficiency Amount" means, as to any
Distribution Date, the amount, if any, by which the Pool Principal Balance is
less than the Class A Principal Balance.
"Class A Principal Shortfall" means, as to any Distribution
Date, the amount, if any, by which the amount distributed to Holders of Class
A Certificates on such Distribution Date pursuant to Sections 8.03(a)(8)(i)
and (iii) is less than the Class A Percentage of the Formula Principal
Distribution Amount for such Distribution Date.
"Class A-1 Pass-Through Rate" means the lesser of (i) One
Month LIBOR plus 0.24% and (ii) the Weighted Average Net Contract Rate.
"Class A-2 Pass-Through Rate" means, with respect to any
Distribution Date, the lesser of (i) 5.22% per annum and (ii) the Weighted
Average Net Contract Rate.
"Class A-3 Pass-Through Rate" means, with respect to any
Distribution Date, the lesser of (i) 6.17% per annum and (ii) the Weighted
Average Net Contract Rate.
"Class A-4 Pass-Through Rate" means, with respect to any
Distribution Date, the lesser of (i) 7.17% per annum and (ii) the Weighted
Average Net Contract Rate.
"Class A-4 Cross-Over Date" means the Distribution Date on
which the Class A-4 Principal Balance (after giving effect to the
distributions of principal on the Class A-4 Certificates on such Distribution
Date) is reduced to zero.
"Class B Certificate" means any one of the Class B-1
Certificates.
"Class B Distribution Test" means, to be considered
"satisfied" for any Distribution Date, that (i) such Distribution Date occurs
in or after October 2006; (ii) the Pool Performance Test is satisfied and
(iii) the fraction, expressed as a percentage, the numerator of which is the
sum of the Class B-1 Principal Balance and the Overcollateralization Amount as
of such Distribution Date and the denominator of which is the Pool Principal
Balance as of the immediately preceding Distribution Date, is equal to or
greater than 25.375%.
"Class B Percentage" means:
(i) as to any Distribution Date on which the Class B
Distribution Test is not satisfied and the Class A
Principal Balance, the Class M-1 Principal Balance and
the Class M-2 Principal Balance have not been reduced
to zero, 0%, and
(ii) as to any other Distribution Date, a fraction,
expressed as a percentage, the numerator of which is
the Class B-1 Principal Balance and the
7
denominator of which is the sum of (a) the Class A
Principal Balance, (b) the Class M-1 Principal
Balance, (c) the Class M-2 Principal Balance and (d)
the Class B-1 Principal Balance.
"Class B-1 Adjusted Principal Balance" means, as of any
Distribution Date, the Class B-1 Principal Balance as of that Distribution
Date minus the Class B-1 Liquidation Loss Amount (if any) as of the prior
Distribution Date.
"Class B-1 Certificate" means any one of the Class B-1
Certificates executed and delivered by the Trustee substantially in the form
set forth in Exhibit C-1 hereto and evidencing an interest designated as a
"regular interest" in the Master REMIC for purposes of the REMIC Provisions.
"Class B-1 Cross-Over Date" means the Distribution Date on
which the Class B-1 Principal Balance (after giving effect to the
distributions of principal on the Class B-1 Certificates on such Distribution
Date) is reduced to zero.
"Class B-1 Distribution Amount" means, as to any
Distribution Date, the lesser of (a) the Amount Available less the sum of (i)
any amounts paid to the Trustee, the Backup Servicer or the Servicer pursuant
to Section 8.03(a)(1) through (2), (ii) the Class A Distribution Amount, (iii)
the Class M-1 Distribution Amount, and (iv) the Class M-2 Distribution Amount
and (b) the Class B-1 Formula Distribution Amount for such Distribution Date;
provided that after the Class B-1 Cross-Over Date the Class B-1 Distribution
Amount shall be zero.
"Class B-1 Formula Distribution Amount" means, as to any
Distribution Date, an amount equal to the sum of (a) interest (calculated in
the manner specified in Section 1.03) at the Class B-1 Pass-Through Rate on
the Class B-1 Adjusted Principal Balance as of such Distribution Date, (b) any
Unpaid Class B-1 Interest Shortfall, (c) the Class B Percentage of the Formula
Principal Distribution Amount, (d) any Unpaid Class B-1 Principal Shortfall,
(e) any Additional Principal Distribution Amount to be distributed to the
Class B-1 Certificates pursuant to Section 8.03(a)(13), (f) any Class B-1
Liquidation Loss Interest Amount, and (g) any Unpaid Class B-1 Liquidation
Loss Interest Shortfall; provided, however, that on the Class M-2 Cross-Over
Date, the balance of any amounts that would have been distributable on such
date pursuant to clauses (c), (d) and (e) of the term "Class M-2 Formula
Distribution Amount" (assuming a sufficient Amount Available) but for the
operation of the second proviso to such term shall instead be included in
clause (c), (d) or (e) of this definition, as applicable; provided, further,
that the aggregate of all amounts distributed pursuant to clauses (c), (d) and
(e) of this definition shall not exceed the Original Class B-1 Principal
Balance.
"Class B-1 Interest Deficiency Amount" means, as to the
Class B-1 Certificates and any Distribution Date, the difference, if any,
between (i) the sum of the amounts described in clauses (a), (b), (f) and (g)
of the definition of the term "Class B-1 Formula Distribution Amount" and (ii)
the amount available for distribution to the Class B-1 Certificateholders
pursuant to Section 8.03(a)(6)(i) and (ii) and Section 8.03(a)(10)(iii) and
(iv) on such Distribution Date.
8
"Class B-1 Interest Distribution Amount" means, as to any
Distribution Date, the amount specified in clause (a) of the definition of
"Class B-1 Formula Distribution Amount" plus the Unpaid Class B-1 Interest
Shortfall, if any.
"Class B-1 Interest Shortfall" means, as to any Distribution
Date, the difference, if any, between (A) the sum of (i) the amount
distributed to Holders of the Class B-1 Certificates on such Distribution Date
pursuant to Sections 8.03(a)(6)(i) and (ii), and (ii) any amount distributed
to the Holders of the Class B-1 Certificates pursuant to Section 8.03(c) on
such Distribution Date, and (B) the Class B-1 Interest Distribution Amount for
such Distribution Date.
"Class B-1 Liquidation Loss Amount" means, as of any
Distribution Date, the lesser of (x) the amount, if any, by which the sum of
the Class A Principal Balance, the Class M-1 Principal Balance, the Class M-2
Principal Balance and the Class B-1 Principal Balance for such Distribution
Date exceeds the Pool Principal Balance for such Distribution Date (after
giving effect to all distributions of principal on the Class A, Class M-1,
Class M-2 and Class B-1 Certificates on such Distribution Date) and (y) the
Class B-1 Principal Balance (after giving effect to all distributions of
principal on the Class B-1 Certificates on such Distribution Date).
"Class B-1 Liquidation Loss Interest Amount" means, as to
any Distribution Date, an amount equal to interest (calculated in the manner
specified in Section 1.03) at the Class B-1 Pass-Through Rate on the Class B-1
Liquidation Loss Amount (if any) for the immediately preceding Distribution
Date.
"Class B-1 Liquidation Loss Interest Shortfall" means, as to
any Distribution Date, the amount, if any, by which the amount distributed to
Holders of the Class B-1 Certificates on such Distribution Date pursuant to
Section 8.03(a)(10)(iii) is less than the Class B-1 Liquidation Loss Interest
Amount for such Distribution Date.
"Class B-1 Pass-Through Rate" means, with respect to any
Distribution Date, the lesser of (a) 9.50% per annum and (b) the Weighted
Average Net Contract Rate.
"Class B-1 Principal Balance" means, as to any Distribution
Date, the Original Class B-1 Principal Balance less all amounts previously
distributed to Holders of Class B-1 Certificates on account of principal.
"Class B-1 Principal Shortfall" means, as to any
Distribution Date, the amount, if any, by which the amount distributed to
Holders of Class B-1 Certificates on such Distribution Date pursuant to
Section 8.03(a)(10)(ii) is less than the amount described in clause (c) of the
definition of the term "Class B-1 Formula Distribution Amount."
"Class M Certificate" means any one of the Class M-1 or M-2
Certificates executed and delivered by the Trustee.
"Class M-1 Adjusted Principal Balance" means, as to any
Distribution Date, the Class M-1 Principal Balance as of that Distribution
Date minus the Class M-1 Liquidation Loss Amount (if any) as of the prior
Distribution Date.
9
"Class M-1 Certificate" means any one of the Class M-1
Certificates executed and delivered by the Trustee substantially in the form
set forth in Exhibit B and evidencing an interest designated as a "regular
interest" in the Trust for the purposes of the REMIC Provisions.
"Class M-1 Cross-Over Date" means the Distribution Date on
which the Class M-1 Principal Balance (after giving effect to the
distributions of principal on the Class M-1 Certificates on such Distribution
Date) is reduced to zero.
"Class M-1 Distribution Amount" means, as to any
Distribution Date, the lesser of (a) the Amount Available less the sum of (i)
any amounts paid to the Trustee, the Backup Servicer and the Servicer pursuant
to Section 8.03(a)(1) through (2) and (ii) the Class A Distribution Amount and
(b) the Class M-1 Formula Distribution Amount for such Distribution Date;
provided that after the Class M-1 Cross-Over Date the Class M-1 Distribution
Amount shall be zero.
"Class M-1 Distribution Test" means, to be considered
"satisfied" for any Distribution Date, that (i) such Distribution Date occurs
in or after October 2006; (ii) the Pool Performance Test is satisfied; and
(iii) the fraction, expressed as a percentage, the numerator of which is the
sum of the Class M-1 Principal Balance, the Class M-2 Principal Balance, the
Class B-1 Principal Balance and the Overcollateralization Amount as of such
Distribution Date and the denominator of which is the Pool Principal Balance
as of the immediately preceding Distribution Date, is equal to or greater than
54.250%.
"Class M-1 Formula Distribution Amount" means, as to any
Distribution Date, an amount equal to the sum of (a) interest (calculated in
the manner specified in Section 1.03) at the Class M-1 Pass-Through Rate on
the Class M-1 Adjusted Principal Balance as of such Distribution Date, (b) the
aggregate Unpaid Class M-1 Interest Shortfall, if any, (c) the Class M-1
Percentage of the Formula Principal Distribution Amount, (d) any Unpaid Class
M-1 Principal Shortfall, (e) any Additional Principal Distribution Amount to
be distributed to the Class M-1 Certificates pursuant to Section 8.03(a)(13),
(f) any Class M-1 Liquidation Loss Interest Amount, and (g) any Unpaid Class
M-1 Liquidation Loss Interest Shortfall; provided, however, that on the Class
A-4 Cross-Over Date, the balance of any amounts that would have been
distributable on such date pursuant to clauses (c), (d) and (e) of the term
"Class A Formula Distribution Amount" (assuming a sufficient Amount Available)
but for the operation of the proviso to such term shall instead be included in
clause (c), (d) or (e) of this definition, as applicable; provided, further,
that the aggregate of all amounts distributed for all Distribution Dates
pursuant to clauses (c), (d) and (e) shall not exceed the Original Class M-1
Principal Balance.
"Class M-1 Interest Deficiency Amount" means, as to the
Class M-1 Certificates and any Distribution Date, the difference, if any,
between (i) the sum of the amounts described in clauses (a), (b), (f) and (g)
of the definition of the term "Class M-1 Formula Distribution Amount" and (ii)
the amount available for distribution to the Class M-1 Certificateholders
pursuant to Section 8.03(a)(4)(i) and (ii) and Section 8.03(a)(8)(iii) and
(iv) on such Distribution Date.
10
"Class M-1 Interest Distribution Amount" means, as to any
Distribution Date, the amount specified in clause (a) of the definition of the
term "Class M-1 Formula Distribution Amount" plus the Unpaid Class M-1
Interest Shortfall, if any.
"Class M-1 Interest Shortfall" means, as to any Distribution
Date, the difference, if any, between (A) the sum of (i) the amount
distributed to Holders of the Class M-1 Certificates on such Distribution Date
pursuant to Section 8.03(a)(4)(i) and (ii), and (ii) any amount distributed to
the Holders of the Class M-1 Certificates pursuant to Section 8.03(c) on such
Distribution Date, and (B) the Class M-1 Interest Distribution Amount for such
Distribution Date.
"Class M-1 Liquidation Loss Amount" means, as to any
Distribution Date, the lesser of (x) the amount, if any, by which the sum of
the Class A Principal Balance and the Class M-1 Principal Balance for such
Distribution Date exceeds the Pool Principal Balance for such Distribution
Date (after giving effect to all distributions of principal on the Class A and
Class M-1 Certificates on such Distribution Date) and (y) the Class M-1
Principal Balance (after giving effect to all distributions of principal on
the Class M-1 Certificates on such Distribution Date).
"Class M-1 Liquidation Loss Interest Amount" means, as to
any Distribution Date, an amount equal to interest (calculated in the manner
specified in Section 1.03) at the Class M-1 Pass-Through Rate on the Class M-1
Liquidation Loss Amount (if any) for the immediately preceding Distribution
Date.
"Class M-1 Liquidation Loss Interest Shortfall" means, as to
any Distribution Date, the amount, if any, by which the amount distributed to
Holders of the Class M-1 Certificates on such Distribution Date pursuant to
Section 8.03(a)(8)(iii) is less than the Class M-1 Liquidation Loss Interest
Amount for such Distribution Date.
"Class M-1 Pass-Through Rate" means, with respect to any
Distribution Date, the lesser of (a) 7.87% per annum and (b) the Weighted
Average Net Contract Rate.
"Class M-1 Percentage" means:
(i) as to any Distribution Date prior to the Class A-4
Cross-Over Date and on which the Class M-1 Distribution
Test is not satisfied, 0%, and
(ii) as to any Distribution Date after the Class A-4
Cross-Over Date or on which the Class M-1 Distribution
Test is satisfied, a fraction, expressed as a
percentage, the numerator of which is the Class M-1
Principal Balance and the denominator of which is the
sum of (a) the Class A Principal Balance, (b) the Class
M-1 Principal Balance, (c) if the Class M-2
Distribution Test is satisfied, the Class M-2 Principal
Balance, otherwise zero, and (d) if the Class B
Distribution Test is satisfied, the Class B-1 Principal
Balance, otherwise zero.
11
"Class M-1 Principal Balance" means, as to any Distribution
Date, the Original Class M-1 Principal Balance less all amounts previously
distributed to Holders of Class M-1 Certificates on account of principal.
"Class M-1 Principal Shortfall" means, as to any
Distribution Date, the amount, if any, by which the amount distributed to
Holders of Class M-1 Certificates on such Distribution Date pursuant to
Sections 8.03(a)(8)(ii) is less than the Class M-1 Percentage of the Formula
Principal Distribution Amount for such Distribution Date.
"Class M-2 Adjusted Principal Balance" means, as to any
Distribution Date, the Class M-2 Principal Balance as of that Distribution
Date minus the Class M-2 Liquidation Loss Amount (if any) as of the prior
Distribution Date.
"Class M-2 Certificate" means any one of the Class M-2
Certificates executed and delivered by the Trustee substantially in the form
set forth in Exhibit B and evidencing an interest designated as a "regular
interest" in the Trust for the purposes of the REMIC Provisions.
"Class M-2 Cross-Over Date" means the Distribution Date on
which the Class M-2 Principal Balance (after giving effect to the
distributions of principal on the Class M-2 Certificates on such Distribution
Date) is reduced to zero.
"Class M-2 Distribution Amount" means, as to any
Distribution Date, the lesser of (a) the Amount Available less the sum of (i)
any amounts paid to the Trustee, the Backup Servicer and the Servicer pursuant
to Section 8.03(a)(1) through (2), (ii) the Class A Distribution Amount, and
(iii) the Class M-1 Distribution Amount and (b) the Class M-2 Formula
Distribution Amount for such Distribution Date; provided that after the Class
M-2 Cross-Over Date the Class M-2 Distribution Amount shall be zero.
"Class M-2 Distribution Test" means, to be considered
"satisfied" for any Distribution Date, that (i) such Distribution Date occurs
in or after October 2006; (ii) the Pool Performance Test is satisfied and
(iii) the fraction, expressed as a percentage, the numerator of which is the
sum of the Class M-2 Principal Balance, the Class B-1 Principal Balance and
the Overcollateralization Amount as of such Distribution Date and the
denominator of which is the Pool Principal Balance as of the immediately
preceding Distribution Date, is equal to or greater than 39.375%.
"Class M-2 Formula Distribution Amount" means, as to any
Distribution Date, an amount equal to the sum of (a) interest (calculated in
the manner specified in Section 1.03) at the Class M-2 Pass-Through Rate on
the Class M-2 Adjusted Principal Balance as of such Distribution Date, (b) the
aggregate Unpaid Class M-2 Interest Shortfall, if any, (c) the Class M-2
Percentage of the Formula Principal Distribution Amount, (d) any Unpaid Class
M-2 Principal Shortfall, (e) any Additional Principal Distribution Amount to
be distributed to the Class M-2 Certificates pursuant to Section 8.03(a)(13),
(f) any Class M-2 Liquidation Loss Interest Amount, and (g) any Unpaid Class
M-2 Liquidation Loss Interest Shortfall; provided, however, that on the Class
M-1 Cross-Over Date, the balance of any amounts that would have been
distributable on such date pursuant to clauses (c), (d) and (e) of the term
"Class M-1 Formula Distribution Amount" (assuming a sufficient Amount
Available) but for the operation
12
of the proviso to such term shall instead be included in clause (c), (d) or
(e) of this definition, as applicable; provided, further, that the aggregate
of all amounts distributed for all Distribution Dates pursuant to clauses (c),
(d) and (e) shall not exceed the Original Class M-2 Principal Balance.
"Class M-2 Interest Deficiency Amount" means, as to the
Class M-2 Certificates and any Distribution Date, the difference, if any,
between (i) the sum of the amounts described in clauses (a), (b), (f) and (g)
of the definition of the term "Class M-2 Formula Distribution Amount" and (ii)
the amount available for distribution to the Class M-2 Certificateholders
pursuant to Section 8.03(a)(5)(i) and (ii) and Section 8.03(a)(9)(iii) and
(iv) on such Distribution Date.
"Class M-2 Interest Distribution Amount" means, as to any
Distribution Date, the amount specified in clause (a) of the definition of the
term "Class M-2 Formula Distribution Amount" plus the Unpaid Class M-2
Interest Shortfall, if any.
"Class M-2 Interest Shortfall" means, as to any Distribution
Date, the difference, if any, between (A) the sum of (i) the amount
distributed to Holders of the Class M-2 Certificates on such Distribution Date
pursuant to Section 8.03(a)(5)(i) and (ii), and (ii) any amount distributed to
the Holders of the Class M-2 Certificates pursuant to Section 8.03(c) on such
Distribution Date, and (B) the Class M-2 Interest Distribution Amount for such
Distribution Date.
"Class M-2 Liquidation Loss Amount" means, as to any
Distribution Date, the lesser of (x) the amount, if any, by which the sum of
the Class A Principal Balance, the Class M-1 Principal Balance and the Class
M-2 Principal Balance for such Distribution Date exceeds the Pool Principal
Balance for such Distribution Date (after giving effect to all distributions
of principal on the Class A, Class M-1 and Class M-2 Certificates on such
Distribution Date) and (y) the Class M-2 Principal Balance (after giving
effect to all distributions of principal on the Class M-2 Certificates on such
Distribution Date).
"Class M-2 Liquidation Loss Interest Amount" means, as to
any Distribution Date, an amount equal to interest (calculated in the manner
specified in Section 1.03) at the Class M-2 Pass-Through Rate on the Class M-2
Liquidation Loss Amount (if any) for the immediately preceding Distribution
Date.
"Class M-2 Liquidation Loss Interest Shortfall" means, as to
any Distribution Date, the amount, if any, by which the amount distributed to
Holders of the Class M-2 Certificates on such Distribution Date pursuant to
Section 8.03(a)(9)(iii) is less than the Class M-2 Liquidation Loss Interest
Amount for such Distribution Date.
"Class M-2 Pass-Through Rate" means, with respect to any
Distribution Date, the lesser of (a) 8.85% per annum and (b) the Weighted
Average Net Contract Rate.
"Class M-2 Percentage" means:
(i) as to any Distribution Date prior to the Class M-1
Cross-Over Date and on which the Class M-2 Distribution
Test is not satisfied, 0%, and
13
(ii) as to any Distribution Date after the Class M-1
Cross-Over Date or on which the Class M-2 Distribution
Test is satisfied, a fraction, expressed as a
percentage, the numerator of which is the Class M-2
Principal Balance and the denominator of which is the
sum of (a) the Class A Principal Balance, (b) the Class
M-1 Principal Balance, (c) the Class M-2 Principal
Balance, and (d) if the Class B Distribution Test is
satisfied, the Class B-1 Principal Balance, otherwise
zero.
"Class M-2 Principal Balance" means, as to any Distribution
Date, the Original Class M-2 Principal Balance less all amounts previously
distributed to Holders of Class M-2 Certificates on account of principal.
"Class M-2 Principal Shortfall" means, as to any
Distribution Date, the amount, if any, by which the amount distributed to
Holders of Class M-2 Certificates on such Distribution Date pursuant to
Section 8.03(a)(9)(ii) is less than the Class M-2 Percentage of the Formula
Principal Distribution Amount for such Distribution Date.
"Class Principal Balance" means, as to any Distribution Date
and each Class of Certificates, the Original Principal Balance of such Class
less all amounts previously distributed to Holders of such Class of
Certificates on account of principal.
"Class R Certificate" means any one of the Class R
Certificates executed and delivered by the Trustee substantially in the form
of Exhibit C-3 and evidencing the "residual interest" in each of the
Subsidiary REMIC and the Master REMIC.
"Class X Certificate" means any one of the Class X
Certificates executed and delivered by the Trustee substantially in the form
set forth in Exhibit C-2 and evidencing an interest designated as a "regular
interest" in the Trust for the purposes of the REMIC provisions.
"Class X Distribution Amount" means with respect to any
Distribution Date the sum of (a) (i) the product of the notional balance of
the Class X Certificates and its Pass-Through Rate as provided in the
Preliminary Statement plus (ii) any accrued but unpaid interest from prior
Distribution Dates and, (b) the amount, if any, of any Overcollateralization
Release Amount for such Distribution Date.
"Closing Date" means March 27, 2002.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Security" means, with respect to any Contract,
(i) the security interests granted by or on behalf of the related Obligor with
respect thereto, including a first priority perfected security interest in the
related Manufactured Home, (ii) all other security interests or liens and
property subject thereto from time to time purporting to secure payment of
such Contract, whether pursuant to the agreement giving rise to such Contract
or otherwise, together with all financing statements signed by the Obligor
describing any collateral securing such Contract, (iii) all guarantees,
insurance and other agreements or arrangements of whatever character from time
to time supporting or securing payment of such Contract whether pursuant to
14
the agreement giving rise to such Contract or otherwise, and (iv) all records
in respect of such Contract.
"Computer Tape" means the computer tape generated by the
Seller which provides information relating to the Contracts and which was used
by the Seller in selecting the Contracts, and includes the master file and the
history file.
"Contract File" means, as to each Contract, other than a
Land-and-Home Contract, (a) the fully executed original copy of the Contract
and security agreement (if separate), and all modifications thereto, executed
by the Obligor evidencing indebtedness in connection with the purchase of a
Manufactured Home, assigned in blank by the Seller (which may be by blanket
assignment), (b) the assignment of the Contract to the Seller, (c) the
originals of all assumptions, modifications, consolidation or extension
agreements, if any, signed by the Obligor, with evidence of recording thereon,
if applicable, or copies thereof with a certification that such copy
represents a true and correct copy of the original and that such original has
been submitted for recordation, if applicable, in the appropriate governmental
recording office of the jurisdiction in which the Manufactured Home is
located, (d) either (i) the original title document for the related
Manufactured Home or (ii) a duplicate certified by the appropriate
governmental authority which issued the original thereof or the application
for such title document, (e) evidence of one or more of the following types of
perfection of the security interest in the related Manufactured Home granted
by such Contract, as appropriate: (i) notation of such security interest on
the title document, (ii) an original or copy of the UCC-1 financing
statements, certified as true and correct by the Seller and all necessary
UCC-3 continuation statements with evidence of filing thereon or copies
thereof certified by the Seller to have been sent for filing, and UCC-3
assignments executed by the Seller in blank, which UCC-3 assignments shall be
in form and substance acceptable for filing, or (iii) such other evidence of
perfection of a security interest in a manufactured housing unit as is
customarily relied upon in the jurisdiction in which the related Manufactured
Home is located, (f) an original notarized Obligor's power of attorney for
each Contract, signed by the Obligor, (g) insurance certificates or other
evidence of the issuance of insurance, (h) the original of any guarantee
executed in connection with the promissory note or Contract, if any, (i) the
loan transfer agreement, if any, and (j) evidence of any other collateral
security, including with respect to a Land-in-Lieu Contract, the mortgage or
deed of trust, if any.
"Contract Rate" means, with respect to any particular
Contract, the rate of interest specified in that Contract and computed either
on a "simple interest" basis or a precomputed basis, as specified in the
related Contract.
"Contracts" means the manufactured housing installment sales
contracts and installment loan agreements, including any Land-and-Home
Contracts, described in the List of Contracts and constituting part of the
corpus of the Trust, which Contracts are to be assigned and conveyed by the
Seller to the Depositor and by the Depositor to the Trust, and includes,
without limitation, all related security interests and any and all rights to
receive payments which are due pursuant thereto after the applicable Cut-off
Date, but excluding any rights to receive payments which are due pursuant
thereto on or before the applicable Cut-off Date.
15
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of the execution of this Agreement is
located at the address set forth in Section 12.08.
"Current Realized Loss Ratio" means, as to any Distribution
Date, a fraction, expressed as a percentage, the numerator of which is the
aggregate Realized Losses for such Distribution Date and each of the two
immediately preceding Distribution Dates, multiplied by four, and the
denominator of which is the arithmetic average of the Pool Principal Balance
as of the third preceding Distribution Date and the Pool Principal Balance as
of such Distribution Date.
"Cumulative Realized Losses" means, as to any Distribution
Date, the sum of the Realized Losses for that Distribution Date and each
preceding Distribution Date since the Cut-off Date.
"Cumulative Realized Losses Test" means, to be considered
"satisfied" for any Distribution Date:
(i) if such Distribution Date occurs between October 2006
and September 2007 (inclusive), and the Cumulative
Realized Losses as of such Distribution Date are less
than or equal to 7.50% of the Cut-off Date Pool
Principal Balance;
(ii) if such Distribution Date occurs between October 2007
and September 2008 (inclusive), and the Cumulative
Realized Losses as of such Distribution Date are less
than or equal to 9.50% of the Cut-off Date Pool
Principal Balance;
(iii) if such Distribution Date occurs between October 2008
and September 2009 (inclusive), and the Cumulative
Realized Losses as of such Distribution Date are less
than or equal to 11.50% of the Cut-off Date Pool
Principal Balance; and
(iv) if such Distribution Date occurs on or after October
2009, and the Cumulative Realized Losses as of such
Distribution Date are less than or equal to 13.50% of
the Cut-off Date Pool Principal Balance.
"Cumulative Realized Loss Ratio" means, for any Distribution
Date, the fraction, expressed as a percentage, the numerator of which is the
Cumulative Realized Losses as of such Distribution Date and the denominator of
which is the Cut-off Date Pool Principal Balance.
"Custodian" means at any time the Trustee or a financial
institution organized under the laws of the United States or any State, which
is subject to supervision and examination by Federal or State authorities and
which is not the Seller or an Affiliate of the Seller, that is acting at such
time as Custodian of the Contract Files and the Land-and-Home Contract Files
pursuant to Section 4.01.
16
"Cut-off Date" means with respect to the Initial Contracts,
February 28, 2002, and for the Additional Contracts, March 15, 2002.
"Cut-off Date Pool Principal Balance" means the aggregate of
the Cut-off Date Principal Balances of the Contracts.
"Cut-off Date Principal Balance" means, as to any Contract,
the unpaid principal balance thereof at the Cut-off Date, after giving effect
to all installments of principal actually received by the Servicer during or
prior to the related Due Period.
"Defaulted Contract" means a Contract with respect to which
the Servicer commenced repossession or foreclosure procedures, made a sale of
such Contract to a third party for repossession, foreclosure or other
enforcement, or as to which there was a payment delinquent 180 or more days
(excluding any Contract deemed delinquent solely because the Obligor's
required monthly payment was reduced as a result of bankruptcy or similar
proceedings).
"Depositor" means Asset Backed Securities Corporation, a
Delaware corporation.
"Depository" means the initial Depository, The Depository
Trust Company, the nominee of which is CEDE & CO., and any permitted successor
depository. The Depository shall at all times be a "clearing corporation" as
defined in the Uniform Commercial Code of the State of New York.
"Depository Participant" means a broker, dealer, bank or
other financial institution or other Person for whom from time to time a
Depository effects book-entry transfers and pledges of securities deposited
with the Depository.
"Determination Date" means the fourth Business Day preceding
each Distribution Date during the term of this Agreement.
"Distributable Excess Spread" means, with respect to any
Distribution Date, the Amount Available remaining after payment of the amounts
described in clauses (1) through (11) of Section 8.03(a).
"Distribution Account" means the account established and
maintained pursuant to Section 8.07.
"Distribution Date" means the fifteenth day of each month
during the term of this Agreement, or if such day is not a Business Day, the
next succeeding Business Day, commencing April 2002.
"Due Date" means, as to any Contract, the date of the month
on which the scheduled monthly payment for such Contract is due.
"Due Period" means with respect to any Distribution Date
other than the Distribution Date in April 2002, the calendar month preceding
such Distribution Date, and with
17
respect to the Distribution Date in April 2002, the period from and including
the related Cut-off Date for the related Contract to and including March 31,
2002.
"Electronic Ledger" means the electronic master record of
installment sale contracts of the Seller.
"Eligible Account" means, at any time, an account which is
any of the following: (i) an account maintained with an Eligible Institution;
(ii) a trust account (which shall be a "segregated trust account") maintained
with the corporate trust department of a federal or state chartered depository
institution or trust company with trust powers and acting in its fiduciary
capacity for the benefit of the Trustee hereunder, which depository
institution or trust company shall have capital and surplus (or, if such
depository institution or trust company is a subsidiary of a bank holding
company system, the bank holding company shall have capital and surplus) of
not less than $50,000,000 and the securities of such depository institution or
trust company (or, if such depository institution or trust company is a
subsidiary of a bank holding company system and such depository institution's
or trust company's securities are not rated, the securities of the bank
holding company) shall have a credit rating from each of Moody's (if rated by
Xxxxx'x) and S&P (if rated by S&P) in one of its generic credit rating
categories which signifies investment grade; or (iii) an account that will not
cause Moody's or S&P to downgrade or withdraw their then-current ratings
assigned to the Certificates, as confirmed in writing by Moody's and S&P.
"Eligible Institution" means any depository institution
(which may be the Trustee or an Affiliate of the Trustee) organized under the
laws of the United States or any State, the deposits of which are insured to
the full extent permitted by law by the Bank Insurance Fund (currently
administered by the Federal Deposit Insurance Corporation), which is subject
to supervision and examination by federal or state authorities and whose
short-term deposits have been rated P-1 by Moody's (if rated by Moody's) and
A-1 by S&P (if rated by S&P), or whose unsecured long-term debt has been rated
in one of the two highest rating categories by Moody's (if rated by Moody's)
and S&P (if rated by S&P) in the case of unsecured long-term debt.
"Eligible Investments" are any of the following:
(i) direct obligations of, and obligations fully guaranteed
by, the United States of America, the Federal Home Loan
Mortgage Corporation, the Federal National Mortgage
Association, or any agency or instrumentality of the
United States of America the obligations of which are
backed by the full faith and credit of the United
States of America and which are noncallable;
(ii) (A) demand and time deposits in, certificates of
deposit of, bankers' acceptances issued by, or federal
funds sold by any depository institution or trust
company (including the Trustee or any Affiliate of the
Trustee, acting in its commercial capacity)
incorporated under the laws of the United States of
America or any State thereof and subject to supervision
and examination by federal and/or state authorities, so
long as, at the time of such investment or contractual
commitment providing for such investment, the
commercial paper or other short-term deposits of such
depository institution or trust company (or, in
18
the case of a depository institution which is the
principal subsidiary of a holding company, the commercial
paper or other short-term debt obligations of such
holding company) are rated at least P-1 by Moody's and
at least A-1 by S&P (if rated by S&P) and (B) any other
demand or time deposit or certificate of deposit which is
fully insured by the Federal Deposit Insurance
Corporation;
(iii) shares of an investment company registered under the
Investment Company Act of 1940, whose shares are
registered under the Securities Act of 1933 and have
the highest credit rating then available from Moody's
and S&P (if rated by S&P) and whose only investments
are in securities described in clauses (i), (ii) above
and (iv) below;
(iv) repurchase obligations with respect to (A) any security
described in clause (i) above or (B) any other security
issued or guaranteed by an agency or instrumentality of
the United States of America, in either case entered
into with a depository institution or trust company
(acting as principal) described in clause (ii)(A)
above;
(v) securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws
of the United States of America or any State thereof
which have a credit rating of at least Aa2 from Moody's
and in one of the two highest rating categories from
S&P (if rated by S&P) at the time of such investment;
provided, however, that securities issued by any
particular corporation will not be Eligible Investments
to the extent that investment therein will cause the
then outstanding principal amount of securities issued
by such corporation and held as part of the corpus of
the Trust to exceed 10% of amounts held in the
Certificate Account;
(vi) commercial paper having a rating of at least P-1 from
Moody's (if rated by Moody's) at the time of such
investment or pledge as a security;
(vii) any other demand, money market or time deposit, demand
obligation or any other obligation, security or
investment, provided that such obligation is rated by
each Rating Agency in its highest short-term unsecured
debt ratings category and such Rating Agency has
confirmed in writing to the Servicer or Trustee, as
applicable, that such investment would not, in and of
itself, result in a downgrade, qualification or
withdrawal of the then current ratings assigned to the
Certificates;
(viii) units of money market funds rated in the highest
applicable rating category by each of the Rating
Agencies, including any such funds for which the
Trustee, in its individual capacity, or any of its
affiliates receives compensation as administrator,
sponsor, agent or the like; and
(ix) such other investments the investment in which will
not, as evidenced by a letter from each of the Rating
Agencies, result in the downgrading or withdrawal of
the Ratings of the Certificates;
19
provided that any such investment must constitute a "cash flow investment"
within the meaning of the REMIC Provisions.
Notwithstanding the foregoing, securities that represent the
right to receive payments only of interest due on underlying obligations shall
not be included as Eligible Investments, whether or not such securities
otherwise fall within (i) through (ix) above.
"Eligible Servicer" means Origen Financial L.L.C., Origen
Financial, Inc., Vanderbilt Mortgage and Finance, Inc. or any Person qualified
to act as Servicer of the Contracts under applicable federal and state laws
and regulations, which Person services not less than an aggregate of
$50,000,000 in outstanding principal amount of manufactured housing
conditional sales contracts and installment loan agreements.
"Eligible Substitute Contract" means, as to any Replaced
Contract for which such Eligible Substitute Contract is being substituted
pursuant to Section 3.06(b), a Contract that (a) as of the date of its
substitution, satisfies all of the representations and warranties (which,
except when expressly stated to be as of origination, shall be deemed to be
determined as of the date of its substitution rather than as of the Cut-off
Date or the Closing Date) in Sections 3.02 and 3.03 and does not cause any of
the representations and warranties in Section 3.04, after giving effect to
such substitution, to be incorrect, (b) after giving effect to the scheduled
payment due in the month of such substitution, has a Principal Balance that is
not greater than the Principal Balance of such Replaced Contract, (c) has a
Contract Rate that is at least equal to the Contract Rate of such Replaced
Contract, (d) has a remaining term to scheduled maturity that is not greater
than the remaining term to scheduled maturity of the Replaced Contract, (e) is
not an Ineligible Foreclosure Property Contract, and (f) is a Land-and-Home
Contract if the Replaced Contract is a Land-and-Home Contract and is otherwise
secured by a Manufactured Home that is similar in type and value to the
collateral serving the Replaced Contract. If more than one Contract is being
substituted pursuant to Section 3.06(b) for more than one Replaced Contract on
a particular date, then the conditions specified above shall be applied to the
Contracts being substituted, in the aggregate, and the Replaced Contracts, in
the aggregate.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA-Qualifying Underwriting" means a best efforts or firm
commitment underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
"ERISA-Restricted Certificate" means the Class X
Certificates, the Class R Certificates and any certificate that does not
satisfy the applicable rating requirement of the Underwriter's Exemption.
"Errors and Omissions Protection Policy" means the employee
errors and omissions policy maintained by the Servicer or any similar
replacement policy covering errors and omissions by the Servicer's employees,
and meeting the requirements of Section 5.09, all as such policy relates to
Contracts comprising a portion of the corpus of the Trust.
"Event of Termination" has the meaning assigned in Section
7.01.
20
"Excess Contract Payment" means with respect to any
Contract, any portion of a payment of principal and interest on such Contract,
that (a) is in excess of the Scheduled Payment (or is an integral multiple
thereof and has not been identified by the Obligor as a Principal Prepayment),
(b) is not a Principal Prepayment and (c) is not part of the Liquidation
Proceeds of such Contract or the Repurchase Price of such Contract paid
pursuant to Section 3.06.
"Fidelity Bond" means the fidelity bond maintained by the
Servicer or any similar replacement bond, meeting the requirements of Section
5.09, as such bond relates to Contracts comprising a portion of the corpus of
the Trust.
"Final Distribution Date" means the Distribution Date on
which the final distribution in respect of the Certificates will be made
pursuant to Section 12.03.
"Formula Principal Distribution Amount" means, as of any
Distribution Date, the excess of (x) the sum of:
(i) all scheduled payments of principal due and received on
each outstanding Contract during the related Due
Period; plus
(ii) all Partial Principal Prepayments applied and all
Principal Prepayments in Full received during the
related Due Period; plus
(iii) the aggregate Principal Balance of all Contracts that
became Liquidated Contracts during the related Due
Period plus the amount of any reduction in principal
balance of any Contract during the related Due Period
pursuant to bankruptcy proceedings involving the
related Obligor; plus
(iv) the aggregate Principal Balance of all Contracts
repurchased during the month preceding the related Due
Period pursuant to Section 3.06
over (y) the Overcollateralization Release Amount, if any,
for that Distribution Date.
"Hazard Insurance Policy" means, with respect to each
Contract, the policy of fire and extended coverage insurance required to be
maintained for the related Manufactured Home, as provided in Section 5.09, and
which, as provided in said Section 5.09, may be a blanket mortgage impairment
policy maintained by the Servicer in accordance with the terms and conditions
of said Section 5.09.
"Independent" means, when used with respect to any specified
Person, any Person who (i) is in fact independent of the Servicer and the
Seller, (ii) does not have any direct financial interest or any material
indirect financial interest in the Servicer, the Seller or in an Affiliate of
either and (iii) is not connected with the Servicer or the Seller as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions. Whenever it is provided herein that any
Independent Person's opinion or certificate shall be furnished to the Trustee,
such opinion or certificate shall state that the signatory has read this
definition and is Independent within the meaning set forth herein.
21
"Ineligible Foreclosure Property Contract" means any
Contract listed on the Ineligible Foreclosure Property Contract Schedule as of
the Closing Date and for which there is no written agreement modifying such
Obligor's obligation to make payments under the Contract.
"Ineligible Foreclosure Property Contract Schedule" means a
schedule, attached hereto as Exhibit R of Ineligible Foreclosure Property
Contracts to be prepared by Origen Financial L.L.C. within 15 days of the
Closing Date.
"Initial Contracts" means certain Contracts identified in
the List of Contracts delivered pursuant to Section 2.02(a), all of which were
originated on or before February 28, 2002, and which have an aggregate
principal balance as of the related Cut-off Date of approximately
$128,255,925.78.
"Insurance Proceeds" means proceeds paid by any insurer
pursuant to any insurance policy or contract.
"Land-and-Home Contract" means a Contract that is secured by
a Mortgage on real estate on which the related Manufactured Home is situated,
and which Manufactured Home is considered or classified as part of the real
estate under the laws of the jurisdiction in which it is located.
"Land-and-Home Contract File" means, as to each
Land-and-Home Contract, (a) the fully executed original copy of the
Land-and-Home Contract and security agreement (if separate), and all
modifications thereto, executed by the Obligor evidencing indebtedness in
connection with the purchase of a Manufactured Home, assigned in blank by the
Seller; (b) the original related Mortgage with evidence of recording thereon
(or, if the original Mortgage has not yet been returned by the applicable
recording office, a copy thereof, certified by such recording office, which
will be replaced by the original Mortgage when it is so returned) and any
title policy, commitment or other title document for the related Manufactured
Home; (c) the assignment of the Land-and-Home Contract and the related
Mortgage from the originator to the Seller; (d) an endorsement of such
Land-and-Home Contract by the Seller to the Trustee or in blank; (e) an
assignment of the related Mortgage to the Trustee or in blank; and (f) the
originals of all assumptions, modifications, consolidation or extension
agreements, if any, signed by the Obligor, with evidence of recording thereon,
if applicable, or copies thereof with a certification that such copy
represents a true and correct copy of the original and that such original has
been submitted for recordation in the appropriate governmental recording
office of the jurisdiction in which the Manufactured Home is located.
"Land-in-Lieu Contract" means a Contract that is secured by
(i) a security interest in a Manufactured Home and (ii) a mortgage or deed of
trust on real estate on which such Manufactured Home is situated, but such
Manufactured Home is not considered or classified as part of the real estate
under the laws of the jurisdiction in which it is located.
"LIBOR Determination Date" means, with respect to the Class
A-1 Certificates and any Accrual Period therefor, the second London Business
Day preceding the commencement of such Accrual Period.
22
"Liquidated Contract" means any defaulted Contract as to
which the Servicer has determined that all amounts which it expects to recover
from or on account of such Contract have been recovered; provided that any
defaulted Contract in respect of which the related Manufactured Home and, in
the case of Land-and-Home Contracts, Mortgaged Property, have been realized
upon and disposed of and the proceeds of such disposition have been received
shall be deemed to be a Liquidated Contract.
"Liquidation Expenses" means out-of-pocket expenses
(exclusive of any overhead expenses) which are incurred by the Servicer in
connection with the liquidation of any defaulted Contract and any unreimbursed
Monthly Advances with respect thereto, on or prior to the date on which the
related Manufactured Home and, in the case of Land-and-Home Contracts,
Mortgaged Property, are disposed of, including, without limitation, legal fees
and bankruptcy expenses, and any related and unreimbursed expenditures for
property taxes, property preservation or restoration of the property to
marketable condition.
"Liquidation Proceeds" means cash (including Insurance
Proceeds) received in connection with the liquidation of defaulted Contracts,
whether through repossession, foreclosure sale or otherwise, including any
rental income realized from the repossessed Manufactured Home.
"List of Contracts" means the lists identifying each
Contract constituting part of the corpus of the Trust, and which lists are
delivered pursuant to Section 2.02(a) of this Agreement , as such lists may be
amended from time to time pursuant to Section 3.06(b) to add Eligible
Substitute Contracts and delete Replaced Contracts. Each List of Contracts
shall set forth as to each Contract identified on it (i) the Cut-off Date
Principal Balance, (ii) the amount of monthly payments due from the Obligor,
(iii) the Contract Rate and (iv) the maturity date.
"Loan-to-Value Ratio" means, (a) with respect to retail
contracts sourced through dealers or brokers, land home contracts sourced
through dealers and correspondents, direct private sales and bulk purchases, a
fraction, the numerator of which is the principal balance of the contract
(total amount financed), and the denominator of which is the sum of the down
payment (the sum of cash, trade-in and land value) plus the principal balance
of the contract (amount financed), and (b) with respect to refinancings and
private sales sourced through brokers and correspondents, a fraction, the
numerator of which is the principal balance of the contract (amount financed)
and the denominator of which is the value of the manufactured home (determined
either through an appraisal or by reference to NADA Mobile/Manufactured
Housing Appraisal Guide).
"London Business Day" means any day on which banks in the
City of London and the City of New York are open and conducting transactions
in United States dollars.
"Manufactured Home" means a unit of manufactured housing,
including all accessions thereto, securing the indebtedness of the Obligor
under the related Contract.
"Master REMIC" has the definition set forth in the
Preliminary Statement.
23
"Maturity Date" means, as to any Certificate, other than a
Class R Certificate, the latest possible maturity date for purposes of
complying with the REMIC Provisions governing "regular interests."
"Monthly Advance" means, as to any Distribution Date, with
respect to any Scheduled Payment due during the related Due Period and not
received by the related Determination Date, an amount equal to (i) for simple
interest Contracts, 30 days interest on the outstanding principal balance on
the related Due Date and (ii) for actuarial Contracts, the interest portion of
such Scheduled Payment, exclusive of any portion thereof that the Servicer has
determined would be a Nonrecoverable Advance if an advance in respect to such
amount were made.
"Monthly Report" has the meaning assigned in Section 6.01.
"Monthly Servicing Fee" means, as of any Distribution Date,
one-twelfth of the product of 1.00% and the Pool Principal Balance for the
immediately preceding Distribution Date (or, with respect to the first
Distribution Date, the Cut-off Date Pool Principal Balance.
"Moody's" means Xxxxx'x Investors Service, Inc., or any
successor thereto; provided that, if Moody's provided a rating on any of the
Certificates, as required by Section 2.02, and does not as of any subsequent
date have a rating outstanding on any of the Class A, Class M-1, Class M-2 or
Class B Certificates, then references herein to "Moody's" shall be deemed to
refer to the NRSRO then rating any Class of the Certificates (or, if more than
one such NRSRO is then rating any Class of the Certificates, to such NRSRO as
may be designated by the Servicer), and references herein to ratings by or
requirements of Xxxxx'x shall be deemed to have the equivalent meanings with
respect to ratings by or requirements of such NRSRO.
"Mortgage" means the mortgage, deed of trust, security deed
or similar evidence of lien, creating a first lien on an estate in fee simple
in the real property securing a Land-and-Home Contract.
"Mortgaged Property" means the property subject to the lien
of a Mortgage.
"Net Liquidation Loss" means, as to a Liquidated Contract,
the amount, if any, by which (a) the outstanding principal balance of such
Liquidated Contract plus accrued and unpaid interest thereon to the date on
which such Liquidated Contract became a Liquidated Contract exceeds (b) the
Net Liquidation Proceeds for such Liquidated Contract.
"Net Liquidation Proceeds" means, as to a Liquidated
Contract, all Liquidation Proceeds received on or prior to the last day of the
month in which such Contract became a Liquidated Contract, net of Liquidation
Expenses.
"Nonrecoverable Advance" means (A) any advance made or
proposed to be made pursuant to Section 8.04 which the Servicer believes, in
its good faith judgment, is not, or if made would not be, ultimately
recoverable from late payments, Liquidation Proceeds or otherwise or (B) any
advance made by the Servicer pursuant to Sections 5.06, 5.09, 5.10 or 5.14 of
this Agreement which are not recovered by the Servicer from Liquidation
Proceeds on the related Contract. In determining whether an advance is or will
be nonrecoverable, the Servicer
24
need not take into account that it might receive any amounts in a deficiency
judgment. The determination by the Servicer that any advance is, or if made
would constitute, a Nonrecoverable Advance, shall be evidenced by a
certificate of a Servicing Officer of the Servicer delivered to the Trustee
stating the reasons for such determination.
"NRSRO" means any nationally recognized statistical rating
organization.
"Obligor" means each Person who is indebted under a
Contract.
"Officer's Certificate" means a certificate signed by the
Chairman of the Board, President, Treasurer, Assistant Treasurer, Secretary,
any Assistant Secretary, or any Vice President of the Seller and delivered to
the Trustee.
"One-Month LIBOR" means, with respect to the Class A-1
Certificates and any Accrual Period therefor, the rate determined by the
Trustee on the related LIBOR Determination Date (or with respect to the
initial Accrual Period, on the Closing Date based on information available on
the related LIBOR Determination Date) on the basis of the offered rate for
one-month U.S. dollar deposits, as such rate appears on Telerate Page 3750 as
of 11:00 a.m. (London time) on such LIBOR Determination Date; provided that if
such rate does not appear on Telerate Page 3750, the rate for such date will
be determined on the basis of the offered rates of the Reference Banks for
one-month U.S. dollar deposits, as of 11:00 a.m. (London time) on such LIBOR
Determination Date. In such event, the Trustee will request the principal
London office of each of the Reference Banks to provide a quotation of its
rate. If on such LIBOR Determination Date, two or more Reference Banks provide
such offered quotations, One-Month LIBOR for the related Accrual Period shall
be the arithmetic mean of such offered quotations (rounded upwards if
necessary to the nearest whole multiple of 0.0625%). If on such LIBOR
Determination Date, fewer than two Reference Banks provide such offered
quotations, One-Month LIBOR for the related Accrual Period shall be the higher
of (i) One-Month LIBOR as determined on the previous LIBOR Determination Date
and (ii) the Reserve Interest Rate. Notwithstanding the foregoing, if, under
the priorities described above, LIBOR for a LIBOR Determination Date would be
based on LIBOR for the previous LIBOR Determination Date for the third
consecutive LIBOR Determination Date, the Trustee, after consultation with the
Seller, shall select an alternative comparable index (over which the Trustee
has no control), used for determining one-month Eurodollar lending rates that
is calculated and published (or otherwise made available) by an independent
party.
"Opinion of Counsel" means a written opinion of counsel, who
may, except as expressly provided herein, be salaried counsel for the Seller,
acceptable to the Trustee and the Seller, provided that any opinion of counsel
relating to the qualification of the Subsidiary REMIC or the Master REMIC as a
REMIC or compliance with the REMIC Provisions must be an opinion of
Independent counsel.
"Optional Termination Date" means the first Distribution
Date on which the Pool Principal Balance is equal to or less than 10% of the
Cut-off Date Pool Principal Balance.
"Original Class A Principal Balance" means the Original
Principal Balance of the Class A Certificates.
25
"Original Principal Balance" means as to each Class of
Regular Certificates, the amount set forth with respect to such Class in
Section 2.05(b).
"Outstanding" means with respect to any Contract as to the
time of reference thereto, a Contract that has not been fully prepaid, has not
become a Liquidated Contract and has not been purchased pursuant to Section
3.06 prior to the time of reference.
"Outstanding Amount Advanced" means as to any Distribution
Date, the aggregate of all Monthly Advances made by the Servicer out of its
own funds pursuant to Section 8.04 and all servicing advances less the
aggregate of all amounts actually received by the Servicer prior to such
Distribution Date in reimbursement for any such advances.
"Overcollateralization Amount" means, as of any Distribution
Date, the excess, if any, of the Pool Principal Balance at the end of the
related Due Period over the aggregate Class Principal Balance of the
Certificates for such Distribution Date after giving effect to distributions
pursuant to Section 8.03(a)(1) through (10) on such Distribution Date.
"Overcollateralization Deficiency Amount" means, with
respect to any Distribution Date, the amount by which the Targeted
Overcollateralization Amount exceeds the Overcollateralization Amount, in each
case, for such Distribution Date.
"Overcollateralization Release Amount" means the amount, if
any, by which the Overcollateralization Amount exceeds the Targeted
Overcollateralization Amount for that Distribution Date.
"Ownership Interest" means as to any Certificate or security
interest in such Certificate, any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial, as owner or as pledgee.
"Partial Principal Prepayment" means (a) any Principal
Prepayment other than a Principal Prepayment in Full and (b) any cash amount
deposited in the Certificate Account pursuant to the provision in Section
3.06(a) or pursuant to Section 3.06(b).
"Pass-Through Rate" means with respect to each Class of
Certificates, the rate set forth for such Class in Section 2.05(b).
"Paying Agent" has the meaning assigned in Section 8.01(c).
"Percentage Interest" means, as to any Certificate, the
percentage interest evidenced thereby in distributions made on the related
Class, such percentage interest being equal to, in the case of the Class A,
Class M-1, Class M-2, and Class B Certificates, the percentage (carried to
eight places) obtained from dividing the denomination of such Certificate by
the Original Principal Balance of the related Class; and in the case of the
Class R and Class X Certificates, the percentage specified on the face of such
Certificate. The aggregate Percentage Interests for each Class of Certificates
shall equal 100%, respectively.
"Permitted Transferee" means any Person other than (i) the
United States, any State or any political subdivision thereof or any agency or
instrumentality of any of the
26
foregoing, (ii) a foreign government, international organization or any agency
or instrumentality of either of the foregoing, (iii) an organization which is
exempt from tax imposed by Chapter 1 of the Code (including the tax imposed by
section 511 of the Code on unrelated business taxable income) (except certain
farmers' cooperatives described in Code section 521) on any excess inclusions
(as defined in Section 860E(c)(1)) with respect to any Class R Certificate,
(iv) rural electric and telephone cooperatives described in Code section
1381(a)(2)(C), (v) a Person that is not a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States, any state thereof or the District of
Columbia, or an estate whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States Persons have the authority to control all substantial
decisions of the trust, (vi) an "electing large partnership" within the
meaning of Section 775 of the Code, and (vii) any other Person so designated
by the Trustee based on an Opinion of Counsel to the effect that any transfer
to such Person may cause the Trust to fail to qualify as a REMIC at any time
the Certificates are outstanding. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Code section
7701 or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax and, with the exception of
the Xxxxxxx Mac, a majority of its board of directors is not selected by such
governmental unit.
"Person" any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Pool Factor" means, at any time, the percentage derived
from a fraction, the numerator of which is the aggregate Principal Balance of
each Class of Certificates at such time and the denominator of which is the
Cut-off Date Pool Principal Balance less the initial Overcollateralization
Amount.
"Pool Performance Test" means, to be considered "satisfied"
for any Distribution Date, that (i) the Average Sixty-Day Delinquency Ratio
for such Distribution Date is less than or equal to 6.00%; and (ii) the
Cumulative Realized Losses Test for such Distribution Date is satisfied; and
(iii) the Current Realized Loss Ratio for such Distribution Date is less than
or equal to 3.50%.
"Pool Principal Balance" means, as of any Distribution Date,
the aggregate Principal Balance of all Contracts that were outstanding during
the related Due Period.
"Principal Balance" means, as to any Contract and any
Distribution Date, the Cut-off Date Principal Balance, minus all collections
credited against the Principal Balance of such Contract. For purposes of this
definition, a Liquidated Contract shall be deemed to have a Principal Balance
equal to the Principal Balance of the related Contract immediately prior to
the final recovery of related Liquidation Proceeds and a Principal Balance of
zero thereafter.
27
"Principal Prepayment" means a payment or other recovery of
principal which is received in advance of its Due Date and applied upon
receipt (or, in the case of a Partial Principal Prepayment, upon the next
scheduled payment date on such Contract) to reduce the outstanding principal
amount due on such Contract prior to the date or dates on which such principal
amount is due.
"Principal Prepayment in Full" means any Principal
Prepayment of the entire principal balance of a Contract.
"Rating Agencies" means Xxxxx'x and S&P.
"Realized Losses" means, as to any Distribution Date, the
aggregate Net Liquidation Losses of all Contracts that became Liquidated
Contracts during the immediately preceding month.
"Record Date" means (i) with respect to the Class A-1
Certificates, the Business Day immediately preceding the related Distribution
Date and (ii) with respect to any other Class of Certificates, the last
Business Day of the month immediately preceding the related Distribution Date.
"Reference Banks" mean leading banks selected by the Trustee
and engaged in transactions in Eurodollar deposits in the international
Eurocurrency market (1) with an established place of business in London, (2)
which have been designated as such by the Trustee and (3) not controlling,
controlled by or under common control with, the Depositor, the Servicer or any
successor servicer or the Seller.
"Regular Certificate" means a Class A, Class M, Class B or
Class X Certificate.
"REMIC" means a "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC 1" as defined in the Preliminary Statement.
"REMIC 2" as defined in the Preliminary Statement.
"REMIC Change of Law" means any proposed, temporary or final
regulation, revenue ruling, revenue procedure or other official announcement
or interpretation relating to REMICs and the REMIC Provisions issued after the
Closing Date.
"REMIC Provisions" means the provisions of the federal
income tax law relating to real estate mortgage investment conduits, which
appear at sections 860A through 860G of Subchapter M of Chapter 1 of the Code,
and related provisions, and regulations promulgated thereunder, as the
foregoing may be in effect from time to time, as well as provisions of
applicable state laws.
"Replaced Contract" has the meaning assigned in Section
3.06(b).
28
"Repurchase Price" means, with respect to a Contract to be
repurchased pursuant to Section 3.06, an amount equal to (a) the remaining
principal amount outstanding on such Contract, plus (b) interest at the
Contract Rate on such Contract from the end of the Due Period with respect to
which the Obligor last made a payment through the end of the immediately
preceding Due Period.
"Reserve Interest Rate" means, with respect to any LIBOR
Determination Date, the rate per annum that the Trustee determines to be
either (i) the arithmetic mean (rounded upwards if necessary to the nearest
whole multiple of 1/16%) of the one-month U.S. dollar lending rates which New
York City banks selected by the Trustee are quoting on the relevant LIBOR
Determination Date to the principal London offices of leading banks in the
London interbank market or (ii) in the event that the Trustee can determine no
such arithmetic mean, the lowest one-month U.S. dollar lending rate which New
York City banks selected by the Trustee are quoting on such LIBOR
Determination Date to leading European banks.
"Responsible Officer" means, with respect to the Trustee,
the chairman and any vice chairman of the board of directors, the president,
the chairman and vice chairman of any executive committee of the board of
directors, every vice president, assistant vice president, the secretary,
every assistant secretary, cashier or any assistant cashier, controller or
assistant controller, the treasurer, every assistant treasurer, every trust
officer, assistant trust officer and every other officer or assistant officer
of the Trustee customarily performing functions similar to those performed by
persons who at the time shall be such officers, respectively, or to whom a
corporate trust matter is referred because of knowledge of, familiarity with,
and authority to act with respect to a particular matter.
"S&P" means Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc. or any successor thereto; provided that, if
S&P provided a rating on any of the Certificates, as required by Section 2.02,
and does not as of any subsequent date have a rating outstanding on any of the
Class A, Class M-1, Class M-2 or Class B Certificates, then references herein
to "S&P" shall be deemed to refer to the NRSRO then rating any Class of the
Certificates (or, if more than one such NRSRO is then rating any Class of the
Certificates, to such NRSRO as may be designated by the Servicer), and
references herein to ratings by or requirements of S&P shall be deemed to have
the equivalent meanings with respect to ratings by or requirements of such
NRSRO.
"Scheduled Payment" means, as to any Due Period and each
Contract, the scheduled monthly payment of principal and/or interest required
to be made by an Obligor on the related Contract.
"Servicer" means Origen Financial L.L.C. until any Service
Transfer hereunder and thereafter means the new servicer appointed pursuant to
Article VII.
"Service Transfer" has the meaning assigned in Section 7.02.
"Servicing Officer" means any officer of the Servicer
involved in, or responsible for, the administration and servicing of Contracts
whose name appears on a list of servicing
29
officers appearing in an Officer's Certificate furnished to the Trustee by the
Servicer, as the same may be amended from time to time.
"Sixty-Day Delinquency Ratio" means, as to any Distribution
Date, a fraction, expressed as a percentage, the numerator of which is the
aggregate of the outstanding balances of all Contracts that were delinquent 60
days or more as of the end of the related Due Period (including Contracts in
respect of which the related Manufactured Homes have been repossessed but are
still in inventory), and the denominator of which is the Pool Principal
Balance as of such Distribution Date.
"Stepdown Date" means the date on which the Class M-1
Distribution Test, Class M-2 Distribution Test and the Class B-1 Distribution
Test are met.
"Subsidiary REMIC" has the meaning set forth in the
Preliminary Statement.
"Targeted Overcollateralization Amount" means (a) for any
Distribution Date prior to the Stepdown Date, 7.00% of the Cut-off Date Pool
Principal Balance and (b) for any Distribution Date on or after the Stepdown
Date, the lesser of (x) 7.00% of the Cut-off Date Pool Principal Balance and
(y) 12.25% of the Pool Principal Balance for that Distribution Date, but in no
event shall the Targeted Overcollateralization Amount be less than 1.00% of
the Cut-off Date Pool Principal Balance.
"Tax Matters Person" means the person designated as "tax
matters person" in the manner provided under Treasury regulation
ss.1.860F-4(d) and temporary Treasury regulation ss.301.6231(a)(7)1T.
Initially, the Tax Matters Person shall be the Class R Certificateholder.
"Tax Matters Person Certificate" means the Class R
Certificate with a Denomination of .00001%.
"Transfer Agreement" means that certain Manufactured Housing
Contract Purchase Agreement among the Depositor, as purchaser, the Seller, as
seller and Xxxxxxx Financial Services Corporation, dated as of March 1, 2002.
"Trust" means the trust created by this Agreement, known as
Origen Manufactured Housing Contract Senior/Subordinate Asset Backed
Certificates Trust, Series 2002-A, the corpus of which consists of (1) all the
right, title and interest of the Depositor in and to the Contracts, including,
without limitation, all right, title and interest in and to the Collateral
Security, all rights to receive payments on or with respect to the Contracts
and all rights of the Depositor under the Transfer Agreement, (2) all rights
under every Hazard Insurance Policy relating to a Manufactured Home securing a
Contract for the benefit of the creditor of such Contract, (3) the proceeds
from the Errors and Omissions Protection Policy and all rights under any
blanket hazard insurance policy to the extent they relate to the Manufactured
Homes, (4) all documents contained in the Contract Files and the Land-and-Home
Contract Files, subject to the exceptions set forth on Schedule A to Exhibit H
of this Agreement and (5) all proceeds and products in any way derived from
any of the foregoing.
"Trustee Fee" means an amount payable monthly from payments
on the Contracts allocable to interest which will accrue at the Trustee Fee
Rate, calculated on the basis of a
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360-day year consisting of twelve 30-day months, and computed on the basis of
the same principal amount for the same period as any related interest payment
on the Contracts is computed, plus an annual fee of $5,000.
"Trustee Fee Rate" means 0.01% per annum.
"Trustee Reimbursement Account" means the account
established pursuant to Section 8.06 hereof.
"Underwriter" means Credit Suisse First Boston Corporation.
"Underwriter's Exemption" means Prohibited Transaction
Exemption 2000-58; Exemption Application No. D-10829, 65 Fed. Reg. 67765
(2000)], as amended (or any successor thereto), or any substantially similar
administrative exemption granted by the U.S. Department of Labor.
"Underwriting Agreement" means the Underwriting Agreement,
dated March 6, 2002, between the Depositor and the Underwriter.
"Unpaid Class A Interest Shortfall" means, as to each class
of Class A Certificates and any Distribution Date, the amount, if any, of the
Class A Interest Shortfall applicable to such Class for the prior Distribution
Date, plus accrued interest (to the extent payment thereof is legally
permissible) at the related Pass-Through Rate on the amount thereof for the
related Accrual Period (calculated in the manner specified in Section 1.03).
"Unpaid Class A Principal Shortfall" means, as to each Class
of Class A Certificates and any Distribution Date, the amount, if any, by
which the aggregate of the Class A Principal Shortfalls for prior Distribution
Dates is in excess of the amounts distributed on prior Distribution Dates to
Holders of Class A Certificates pursuant to Section 8.03(a)(7)(ii).
"Unpaid Class B-1 Interest Shortfall" means, as to any
Distribution Date, the amount, if any, of the Class B-1 Interest Shortfall for
the prior Distribution Date, plus accrued interest (to the extent payment
thereof is legally permissible) at the Class B-1 Pass-Through Rate on the
amount thereof for the related Accrual Period (calculated in the manner
specified in Section 1.03).
"Unpaid Class B-1 Liquidation Loss Interest Shortfall"
means, as to any Distribution Date, the sum of (i) the amount, if any, of the
remainder of (x) the Class B-1 Liquidation Loss Interest Amount, if any, for
the immediately prior Distribution Date, plus (y) the Unpaid Class B-1
Liquidation Loss Interest Shortfall determined as of such immediately prior
Distribution Date, minus (z) all amounts distributed to the Holders of the
Class B-1 Certificates on account of any Unpaid Class B-1 Liquidation Loss
Interest Shortfall pursuant to Section 8.03(a)(10)(iv) on such immediately
prior Distribution Date, plus (ii) accrued interest (to the extent payment
thereof is legally permissible) at the Class B-1 Pass-Through Rate on the
amount specified in clause (i) for the related Accrual Period (calculated in
the manner specified in Section 1.03).
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"Unpaid Class B-1 Principal Shortfall" means, as to any
Distribution Date, the amount, if any, by which the aggregate of the Class B-1
Principal Shortfalls for prior Distribution Dates is in excess of the amounts
distributed on prior Distribution Dates to Holders of Class B-1 Certificates
pursuant to Section 8.03(a)(10)(i).
"Unpaid Class M-1 Interest Shortfall" means, as to any
Distribution Date, the amount, if any, of the Class M-1 Interest Shortfall for
the prior Distribution Date, plus accrued interest (to the extent payment
thereof is legally permissible) at the Class M-1 Pass-Through Rate on the
amount thereof for the related Accrual Period (calculated in the manner
specified in Section 1.03).
"Unpaid Class M-1 Liquidation Loss Interest Shortfall"
means, as to any Distribution Date, the sum of (i) the amount, if any, of the
remainder of (x) the Class M-1 Liquidation Loss Interest Amount, if any, for
the immediately prior Distribution Date, plus (y) the Unpaid Class M-1
Liquidation Loss Interest Shortfall determined as of such immediately prior
Distribution Date, minus (z) all amounts distributed to the Holders of the
Class M-1 Certificates on account of any Unpaid Class M-1 Liquidation Loss
Interest Shortfall pursuant to Section 8.03(a)(8)(iv) on such immediately
prior Distribution Date, plus (ii) accrued interest (to the extent payment
thereof is legally permissible) at the Class M-1 Pass-Through Rate on the
amount specified in clause (i) for the related Accrual Period (calculated in
the manner specified in Section 1.03).
"Unpaid Class M-1 Principal Shortfall" means, as to any
Distribution Date, the amount, if any, by which the aggregate of the Class M-1
Principal Shortfalls for prior Distribution Dates is in excess of the amounts
distributed on prior Distribution Dates to Holders of Class M-1 Certificates
pursuant to Section 8.03(a)(8)(i).
"Unpaid Class M-2 Interest Shortfall" means, as to any
Distribution Date, the amount, if any, of the Class M-2 Interest Shortfall for
the prior Distribution Date, plus accrued interest (to the extent payment
thereof is legally permissible) at the Class M-2 Pass-Through Rate on the
amount thereof for the related Accrual Period (calculated in the manner
specified in Section 1.03).
"Unpaid Class M-2 Liquidation Loss Interest Shortfall"
means, as to any Distribution Date, the sum of (i) the amount, if any, of the
remainder of (x) the Class M-2 Liquidation Loss Interest Amount, if any, for
the immediately prior Distribution Date, plus (y) the Unpaid Class M-2
Liquidation Loss Interest Shortfall determined as of such immediately prior
Distribution Date, minus (z) all amounts distributed to the Holders of the
Class M-2 Certificates on account of any Unpaid Class M-2 Liquidation Loss
Interest Shortfall pursuant to Section 8.03(a)(9)(iv) on such immediately
prior Distribution Date, plus (ii) accrued interest (to the extent payment
thereof is legally permissible) at the Class M-2 Pass-Through Rate on the
amount specified in clause (i) for the related Accrual Period (calculated in
the manner specified in Section 1.03).
"Unpaid Class M-2 Principal Shortfall" means, as to any
Distribution Date, the amount, if any, by which the aggregate of the Class M-2
Principal Shortfalls for prior
32
Distribution Dates is in excess of the amounts distributed on prior
Distribution Dates to Holders of Class M-2 Certificates pursuant to Section
8.03(a)(9)(i).
"Weighted Average Net Contract Rate" means, as to any
Distribution Date, the weighted average (determined by Principal Balance) of
the Contract Rates of all Contracts that were outstanding on the first day of
the prior related Due Period net of the sum of the rate at which the Trustee
Fee, the Backup Servicing Fee and if Origen is no longer the Servicer, the
Monthly Servicing Fee are calculated.
SECTION 1.03. Calculations.
All calculations of the amount of interest accrued on the
Certificates with respect to any Distribution Date shall be calculated (i)
with respect to the Class A-1 Certificates, on the basis of the actual number
of days elapsed during the related Accrual Period and a 360-day year and (ii)
with respect to any Class of Certificates other than the Class A-1
Certificates, on the basis of a 360-day year consisting of twelve 30-day
months.
ARTICLE II
ESTABLISHMENT OF TRUST; TRANSFER OF CONTRACTS
SECTION 2.01. Closing.
(a) There is hereby created, by the Depositor as settlor, a
separate trust which shall be known as Origen Manufactured Housing Contract
Senior/Subordinate Asset-Backed Certificate Trust, Series 2002-A. By the
execution and delivery of this Agreement, the Depositor has agreed that it
will elect or will cause an election to be made to treat the pool of assets
comprising each of the Subsidiary REMIC and the Master REMIC, as a REMIC. The
Trust shall be administered pursuant to the provisions of this Agreement for
the benefit of the Certificateholders.
(b) The Depositor hereby transfers, assigns, delivers,
sells, sets over and otherwise conveys to the Trustee or the Custodian on
behalf of the Trust, (1) all the right, title and interest of the Depositor in
and to the Contracts, including, without limitation, all right, title and
interest in and to the Collateral Security, all rights to receive payments on
or with respect to the Contracts and all rights of the Depositor under the
Transfer Agreement, (2) all rights under every Hazard Insurance Policy
relating to a Manufactured Home securing a Contract for the benefit of the
creditor of such Contract, (3) the proceeds from the Errors and Omissions
Protection Policy and all rights under any blanket hazard insurance policy to
the extent they relate to the Manufactured Homes, (4) all documents contained
in the Contract Files and the Land-and-Home Contract Files, subject to the
exceptions set forth on Schedule A to Exhibit H of this Agreement and (5) all
proceeds and products in any way derived from any of the foregoing.
(c) Reserved.
(d) Although the parties intend that the conveyance of the
Depositor's right, title and interest in and to the Contracts and the
Collateral Security pursuant to this Agreement shall constitute a purchase and
sale and not a pledge of security for loans from the
33
Certificateholders, it is the intent of this Agreement that if such
conveyances are deemed to be a pledge of security for loans from the
Certificateholders or any other Persons (the "Secured Obligations"), the
parties intend that the rights and obligations of the parties to the Secured
Obligations shall be established pursuant to the terms of this Agreement. The
parties also intend and agree that the Depositor shall be deemed to have
granted to the Trustee, and the Depositor does hereby grant to the Trustee, a
perfected first-priority security interest in the items designated in Section
2.01(b)(1) through 2.01(b)(5) above, and all proceeds thereof, to secure the
Secured Obligations, and that this Agreement shall constitute a security
agreement under applicable law. If the trust created by this Agreement
terminates prior to the satisfaction of the claims of any Person under any
Certificates or the Secured Obligations, the security interest created hereby
shall continue in full force and effect and the Trustee shall be deemed to be
the collateral agent for the benefit of such Person.
SECTION 2.02. Conditions to the Closing.
On or before the Closing Date, unless a condition is waived
by the Depositor and the Underwriter, the Seller and Depositor, as applicable,
shall deliver or cause to be delivered the following documents to the Trustee:
(1) The List of Contracts identifying all Initial and
Additional Contracts.
(2) A certificate of an officer of the Seller substantially
in the form of Exhibit E hereto. A certificate of an officer
of the Depositor in form and substance satisfactory to the
Underwriter.
(3) An Opinion of Counsel for the Seller. An Opinion of
Counsel for the Depositor.
(4) A letter acceptable to the Underwriter from Deloitte &
Touche or another nationally recognized accounting firm,
stating that such firm has reviewed the Initial Contracts on
a statistical sampling basis and setting forth the results
of such review.
(5) Copies of resolutions of the board of directors of the
Seller or of the executive committee of the board of
directors of the Seller approving the execution, delivery
and performance of this Agreement, the creation of the Trust
and the transactions contemplated hereunder, certified in
each case by the secretary or an assistant secretary of the
Seller.
(6) Officially certified recent evidence of due formation
and good standing of the Seller under the laws of the State
of Delaware. Officially certified recent evidence of due
formation and good standing of the Depositor under the laws
of the State of Delaware.
(7) Copies of UCC-1 financing statements, naming the Seller
as debtor and the Depositor as secured party, and naming the
Depositor as
34
debtor and the Trustee as secured party, and listing the
Contracts as collateral, to be filed with the Secretary of
State of Delaware.
(8) The Land-and-Home Contract File for each Initial and
Additional Contract that is a Land-and-Home Contract.
(9) An executed copy of the Assignment of the Seller
substantially in the form of Exhibit D hereto.
(10) An Officer's Certificate listing the Servicer's
Servicing Officers.
(11) Evidence of deposit in the Certificate Account of all
funds received with respect to the Initial and Additional
Contracts after the Cut-off Date and prior to the Closing
Date.
(12) [Reserved].
(13) A letter from Xxxxx'x confirming that it has assigned
the Class A Certificates a rating of Aaa, the Class M-1
Certificates a rating of "Aa2", the Class M-2 Certificates a
rating of "A2," the Class B-1 Certificates a rating of
"Baa2".
(14) A letter from S&P confirming that it has assigned the
Class A Certificates a rating of AAA, the Class M-1
Certificates a rating of "AA," the Class M-2 Certificates a
rating of "A", the Class B-1 Certificates a rating of "BBB".
(15) An executed copy of the Transfer Agreement.
(16) Any other documents or certificates that the Trustee or
the Depositor may reasonably request.
SECTION 2.03. Acceptance by Trustee.
(a) On the Closing Date, if the conditions set forth in
Sections 2.01 and 2.02, respectively, have been satisfied, the Trustee shall
deliver a certificate to the Depositor substantially in the form of Exhibit G
hereto acknowledging conveyance of the Contracts, identified on the applicable
List of Contracts and the related Contract Files and Land-and-Home Contract
Files to the Trustee, subject to the Custodian's review below, and declaring
that the Trustee, directly or through the Custodian, will hold all Contracts
that have been delivered in trust, upon the terms herein set forth, for the
use and benefit of all Certificateholders and on the Closing Date the Trustee
shall issue upon the order of the Depositor Certificates representing
ownership of a beneficial interest in 100% of the Trust.
(b) (i) On or prior to the Closing Date, the Trustee will
review each Contract File to ascertain that the documents delivered pursuant
to Section 2.01 appear on their face to contain the requisite signatures by or
on behalf of the respective parties thereto, and shall
35
deliver to the Depositor (with a complete copy thereof to the Servicer) the
acknowledgement and certification in the form attached hereto as Exhibit H,
subject to any exceptions noted in an exceptions schedule attached thereto, to
the effect that, as to each Contract set forth on the List of Contracts: (A)
all of the following documents are in its possession or have been delivered
for recording or filing: (I) all documents specified in clauses (a), (b), (d),
(f) and (g) of the definition of "Contract File" and (II) documents specified
in clauses (c), (e), (h), (i) and (j) of the definition of "Contract File" for
those Contracts which the Seller or Depositor has notified the Trustee or the
Custodian, with respect to clause (c), as having an assumption, modification,
consolidation or extension agreement, with respect to clause (e), which type
of perfection of security interest in the related Manufactured Home granted by
the Contract should be in the Contract File, with respect to clause (h), as
having a guarantee executed in connection with the promissory note, with
respect to clause (i), as having a loan transfer agreement, and with respect
to clause (j), identifying any other collateral security and (B) such
documents have been reviewed by it and appear to relate to such Contract.
(ii) On or prior to the Closing Date, the Trustee will
review each Land-and-Home Contract File to ascertain that
the documents delivered pursuant to Section 2.01 appear on
their face to contain the requisite signatures by or on
behalf of the respective parties thereto, and shall deliver
to the Depositor (with a complete copy thereof to the
Servicer) the acknowledgement and certification in the form
attached hereto as Exhibit H, subject to any exceptions
noted in an exceptions schedule attached thereto, to the
effect that, as to each Land-and-Home Contract set forth on
the List of Contracts: (A) all of the following documents
are in its possession or have been delivered for recording
or filing: (I) all documents specified in clauses (a), (b),
(c), (d) and (e) of the definition of "Land-and-Home
Contract File" and (II) documents specified in clause (f) of
the definition of "Land-and-Home Contract File" for those
Contracts which the Seller or Depositor has notified the
Trustee or the Custodian as having an assumption,
modification, consolidation or extension agreement and (B)
such documents have been reviewed by it and appear to relate
to such Contract.
(iii) With respect to Sections 2.03(b)(i) and (ii) above,
the Trustee will update the exceptions set forth on Schedule
A of Exhibit H hereto every 90 days until the 2nd
anniversary of the Closing Date and distribute such updated
schedules to the Depositor, Servicer and Seller. In
performing the review set forth in Sections 2.03(b)(i) and
(ii) above, the Trustee shall make sure that the documents
are executed and endorsed, but shall be under no duty or
obligation to inspect, review or examine any such documents,
instruments, certificates or other papers to determine that
the same are valid, binding, legally effective, properly
endorsed, genuine, enforceable or appropriate for the
represented purpose or that they have actually been recorded
or are in recordable form or that they are other than what
they purport to be on their face. The Trustee shall have no
responsibility for verifying the genuineness or the legal
effectiveness of or authority for any signatures of or on
behalf of any party or endorser.
(c) If, in its review of the Contract Files and the
Land-and-Home Contract Files as described in Exhibit G, the Trustee or its
Custodian discovers a breach of the
36
representations or warranties set forth in Sections 3.02, 3.03, 3.04 or 3.05,
the Seller shall promptly cure such breach or repurchase or replace such
Contract pursuant to Section 3.06.
SECTION 2.04. REMIC Provisions.
The Preliminary Statement sets forth the designations and
"latest possible maturity date" for federal income tax purposes of all
interests created hereby. The "Startup Day" for purposes of the REMIC
Provisions shall be the Closing Date. The "tax matters person" with respect to
each REMIC created hereunder shall be the Class R Certificateholder and the
Class R Certificateholder shall hold the Tax Matters Person Certificate. The
Trustee shall act as agent for the Tax Matters Person. The Trust's fiscal year
shall be the calendar year and, for the purposes of Section 860C of the Code,
the taxable income of each REMIC created hereunder shall be computed under an
accrual method of accounting.
It is intended that the assets with respect to which any
REMIC election is to be made, as set forth in the Preliminary Statement, shall
constitute, and that the conduct of matters relating to such assets shall be
such as to qualify such assets as, a "real estate mortgage investment conduit"
as defined in and in accordance with the REMIC Provisions. In furtherance of
such intention, the Trustee covenants and agrees that it shall act as agent
(and the Trustee is hereby appointed to act as agent) on behalf of each REMIC
created hereunder and that in such capacity it shall: (a) prepare and file, or
cause to be prepared and filed, in a timely manner, U.S. Real Estate Mortgage
Investment Conduit Income Tax Returns (Forms 1066 or any successor form
adopted by the Internal Revenue Service) and prepare and file or cause to be
prepared and filed with the Internal Revenue Service and applicable state or
local tax authorities income tax or information returns for each taxable year
with respect to each REMIC created hereunder, containing such information and
at the times and in the manner as may be required by the Code or state or
local tax laws, regulations, or rules, and furnish or cause to be furnished to
Certificateholders the schedules, statements or information at such times and
in such manner as may be required thereby; (b) within thirty days of the
Closing Date, furnish or cause to be furnished to the Internal Revenue
Service, on Forms 8811 or as otherwise may be required by the Code, the name,
title, address, and telephone number of the person that the holders of the
Certificates may contact for tax information relating thereto, together with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the Code; (c) make
or cause to be made elections that such assets be treated as a REMIC on the
federal tax return for its first taxable year (and, if necessary, under
applicable state law); (d) prepare and forward, or cause to be prepared and
forwarded, to the Certificateholders and to the Internal Revenue Service and,
if necessary, state tax authorities, all information returns and reports as
and when required to be provided to them in accordance with the REMIC
Provisions, including without limitation, the calculation of any original
issue discount using the prepayment assumption described in the Prospectus
Supplement; (e) provide information necessary for the computation of tax
imposed on the transfer of a Class R Certificate to a Person that is not a
Permitted Transferee, or an agent (including a broker, nominee or other
middleman) of a non-Permitted Transferee, or a pass-through entity in which a
non-Permitted Transferee is the record holder of an interest (the reasonable
cost of computing and furnishing such information may be charged to the Person
liable for such tax); (f) to the extent that they are under its control,
conduct matters relating to such assets at all times that any Certificates are
outstanding so as to maintain the REMIC status of each REMIC created hereunder
under the
37
REMIC Provisions; (g) not knowingly or intentionally take any action or omit
to take any action that would cause the termination of the REMIC status of
either of the REMICs created hereunder; (h) pay, from the sources specified in
the last paragraph of this Section 2.04, the amount of any federal or state
tax, including prohibited transaction taxes as described below, imposed on
each REMIC created hereunder prior to its termination when and as the same
shall be due and payable (but such obligation shall not prevent the Trustee or
any other appropriate Person from contesting any such tax in appropriate
proceedings and shall not prevent the Trustee from withholding payment of such
tax, if permitted by law, pending the outcome of such proceedings); (i) ensure
that federal, state or local income tax or information returns shall be signed
by the Trustee or such other person as may be required to sign such returns by
the Code or state or local laws, regulations or rules; (j) maintain records
relating to each REMIC created hereunder, including, but not limited to, the
income, expenses, assets and liabilities thereof and the fair market value and
adjusted basis of the assets determined at such intervals as may be required
by the Code, as may be necessary to prepare the foregoing returns, schedules,
statements or information; and (k) as and when necessary and appropriate,
represent at the expense of the Trust each REMIC created hereunder in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of each REMIC created hereunder, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of each REMIC created hereunder, and
otherwise act on behalf of each REMIC created hereunder in relation to any tax
matter or controversy involving it.
In order to enable the Trustee to perform its duties as set
forth herein, the Seller shall provide, or cause to be provided, to the
Trustee within ten (10) days after the Closing Date all information or data
that the Trustee requests in writing and determines to be relevant for tax
purposes to the valuations and offering prices of the Certificates, including,
without limitation, the price, yield, prepayment assumption and projected cash
flows of the Certificates and the Loans. Thereafter, the Seller shall provide
to the Trustee promptly upon written request therefor, any such additional
information or data that the Trustee may, from time to time, reasonably
request in order to enable the Trustee to perform its duties as set forth
herein. The Seller hereby indemnifies the Trustee for any losses, liabilities,
damages, claims or expenses of the Trustee arising from any errors or
miscalculations of the Trustee that result from any failure of the Seller to
provide, or to cause to be provided, accurate information or data to the
Trustee on a timely basis.
In the event that any tax is imposed on "prohibited
transactions" of any REMIC created hereunder as defined in Section 860F(a)(2)
of the Code, on the "net income from foreclosure property" of any REMIC
created hereunder as defined in Section 860G(c) of the Code, on any
contribution to any REMIC created hereunder after the Startup Day pursuant to
Section 860G(d) of the Code, or any other tax is imposed, such tax shall be
paid from the Trust or as otherwise provided for herein, provided that such
tax shall be paid by (i) the Trustee, if such tax arises out of or results
from a breach by the Trustee of any of its obligations under this Agreement,
(ii) the Servicer, if such tax arises out of or results from a breach by the
Servicer or Seller of any of their obligations under this Agreement, or (iii)
the Seller, if any tax arises out of or results from the Seller's obligation
to repurchase a Contract pursuant to Section 3.06.
38
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties Regarding the
Seller.
(a) Reserved
(b) The Seller represents and warrants, effective on the
Closing Date, that:
(1) Formation and Good Standing. The Seller is a
limited liability company formed, validly existing and
in good standing under the laws of the jurisdiction of
its formation and has the power to own its assets and to
transact the business in which it is currently engaged.
The Seller is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction
in which the character of the business transacted by it
or properties owned or leased by it requires such
qualification and in which the failure so to qualify
would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of
the Seller.
(2) Authorization; Binding Obligations. The Seller
has the power and authority to make, execute, deliver
and perform this Agreement and all of the transactions
contemplated under this Agreement, and cause the Trust
to make, execute, deliver and perform its obligations
under this Agreement and has taken all necessary
corporate action to authorize the execution, delivery
and performance of this Agreement. When executed and
delivered, this Agreement will constitute the legal,
valid and binding obligation of the Seller enforceable
in accordance with its terms, except as enforcement of
such terms may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors'
rights generally and by the availability of equitable
remedies.
(3) No Consent Required. The Seller is not required
to obtain the consent of any other party or any consent,
license, approval or authorization from, or registration
or declaration with, any governmental authority, bureau
or agency in connection with the execution, delivery,
performance, validity or enforceability of this
Agreement.
(4) No Violations. The execution, delivery and
performance of this Agreement by the Seller will not
violate any provision of any existing law or regulation
or any order or decree of any court or the Articles of
Incorporation or Bylaws of the Seller, or constitute a
material breach of any mortgage, indenture, contract or
other agreement to which the Seller is a party or by
which the Seller may be bound.
(5) Litigation. No litigation or administrative
proceeding of or before any court, tribunal or
governmental body is currently pending, or to
39
the knowledge of the Seller threatened, against the
Seller or any of its properties or with respect to this
Agreement or the Certificates which, if adversely
determined, would in the opinion of the Seller have a
material adverse effect on the transactions contemplated
by this Agreement.
(6) Licensing. The Seller is duly registered as a
finance company in each state in which Contracts were
originated, to the extent such registration is required
by applicable law.
SECTION 3.02. Representations and Warranties Regarding Each
Contract.
The Seller represents and warrants, as of the Closing Date
with respect to each Initial and Additional Contract, that:
(1) List of Contracts. The information set forth in
the applicable List of Contracts is true and correct as
of its date.
(2) Payments. As of the Cut-off Date, the most
recent scheduled payment was made by or on behalf of the
Obligor (without any advance from the Seller or any
Person acting at the request of the Seller) or was not
past due for more than 59 days.
(3) No Waivers. The terms of the Contract have not
been waived, altered or modified in any respect, except
by instruments or documents identified in the Contract
File or Land-and-Home Contract File, as applicable.
(4) Binding Obligation. The Contract is the legal,
valid and binding obligation of the Obligor thereunder
and is enforceable in accordance with its terms, except
as such enforceability may be limited by laws affecting
the enforcement of creditors' rights generally.
(5) No Defenses. The Contract is not subject to any
right of rescission, setoff, counterclaim or defense,
including the defense of usury, and the operation of any
of the terms of the Contract or the exercise of any
right thereunder will not render the Contract
unenforceable in whole or in part or subject to any
right of rescission, setoff, counterclaim or defense,
including the defense of usury, and no such right of
rescission, setoff, counterclaim or defense has been
asserted with respect thereto.
(6) Insurance Coverage. The Manufactured Home
securing the Contract is covered by a Hazard Insurance
Policy in the amount required by Section 5.09. With
respect to any Contract, the Seller has obtained: (a) a
statement from the Obligor's insurance agent that the
Manufactured Home was, at the time of origination of the
Contract, not in a federally designated special flood
hazard area; or (b) evidence that, at the time of
origination, flood insurance was in effect, which
coverage is at least equal to that required by Section
5.09 or such lesser coverage as may be
40
available under the federal flood insurance program. All
premiums due as of the Closing Date on such insurance
have been paid in full.
(7) Origination. The Contract was originated by a
manufactured housing dealer and purchased by the Seller
or originated or acquired by the Seller directly, in the
regular course of its business.
(8) Lawful Assignment. The Contract was not
originated in and is not subject to the laws of any
jurisdiction whose laws would make the transfer of the
Contract pursuant to this Agreement or pursuant to
transfers of Certificates, or the ownership of the
Contract by the Trust, unlawful or render the Contract
unenforceable.
(9) Compliance with Law. At the date of origination
of the Contract, all requirements of any federal and
state laws, rules and regulations applicable to the
Contract, including, without limitation, usury, truth in
lending and equal credit opportunity laws, have been
complied with, and the Seller shall for at least the
period of this Agreement, maintain in its possession,
available for the Trustee's inspection, and shall
deliver to the Trustee upon demand, evidence of
compliance with all such requirements. Such compliance
is not affected by the Trust's ownership of the
Contract.
(10) Contract in Force. The Contract has not been
satisfied or subordinated in whole or in part or
rescinded, and the Manufactured Home securing the
Contract has not been released from the lien of the
Contract in whole or in part.
(11) Valid Security Interest. Each Contract (other
than the Land-and-Home Contracts) creates a valid and
enforceable perfected first priority security interest
in favor of the Seller in the Manufactured Home covered
thereby as security for payment of the Cut-off Date
Principal Balance of such Contract. The Seller has
assigned all of its right, title and interest in such
Contract, including the security interest in the
Manufactured Home covered thereby, to the Depositor, and
the Depositor has assigned all of its right, title and
interest in such Contract, including the security
interest in the Manufactured Home covered thereby, to
the Trustee. The Trustee has and will have a valid and
perfected and enforceable first priority security
interest in such Contract and Manufactured Home.
Each Mortgage is a valid first lien in favor of the
Seller on real property securing the amount owed by the
Obligor under the related Land-and-Home Contract subject
only to (a) the lien of current real property taxes and
assessments, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public
record as of the date of recording of such Mortgage,
such exceptions appearing of record being
41
acceptable to mortgage lending institutions
generally in the area wherein the property subject to
the Mortgage is located or specifically reflected in the
appraisal obtained in connection with the origination of
the related Land-and-Home Contract obtained by the
Seller and (c) other matters to which like properties
are commonly subject which do not materially interfere
with the benefits of the security intended to be
provided by such Mortgage. As of the Closing Date, the
Seller will have assigned all of its right, title and
interest in such Land-and-Home Contract and related
Mortgage, including the security interest in the
Manufactured Home covered thereby, to the Depositor who
has assigned it to the Trustee. The Trustee has and will
have a valid and perfected and enforceable first
priority security interest in the related Mortgaged
Property subject to the exceptions set forth above.
(12) Capacity of Parties. The signature(s) of the
Obligor(s) on the Contract are genuine and all parties
to the Contract had full legal capacity to execute the
Contract.
(13) Good Title. In the case of a Contract
purchased from a manufactured housing dealer, the Seller
purchased the Contract for fair value and took
possession thereof in the ordinary course of its
business, without knowledge that the Contract was
subject to a security interest. Immediately prior to the
transfer of the Contract by the Seller to the Depositor
under the terms of the Transfer Agreement, the Seller
had good and marketable title thereto free and clear of
any encumbrance, equity, loan, pledge, charge, claim or
security interest and was the sole owner thereof with
full right to transfer the Contract to the Seller. With
respect to any Contract bearing a stamp indicating that
such Contract has been sold to another party, such other
party's interest in such Contract has been released.
(14) No Defaults. As of the Cut-off Date, there was
no default, breach, violation or event permitting
acceleration existing under the Contract and no event
which, with notice and the expiration of any grace or
cure period, would constitute such a default, breach,
violation or event permitting acceleration under such
Contract (except payment delinquencies permitted by
clause (2) above). The Seller has not waived any such
default, breach, violation or event permitting
acceleration except payment delinquencies permitted by
clause (2) above. As of the Closing Date, the
Manufactured Home is, to the best of the Seller's
knowledge, free of damage and in good repair. No
Manufactured Home has suffered damage that is not
covered by a Hazard Insurance Policy, including, but not
limited to, hurricanes, earthquakes, floods, tornadoes,
straight-line winds, sinkholes, mudslides, volcanic
eruptions and other natural disasters.
42
(15) No Liens. As of the Closing Date, there are no
liens or claims which have been filed for work, labor or
materials affecting the Manufactured Home or any related
Mortgaged Property securing the Contract which are or
may be liens prior to, or equal or coordinate with, the
lien of the Contract.
(16) Equal Installments. Each Contract with a fixed
Contract Rate provides for level monthly payments which,
if paid on each Due Date, fully amortize the loan over
its term.
(17) Enforceability. The Contract contains
customary and enforceable provisions so as to render the
rights and remedies of the holder thereof adequate for
the realization against the collateral of the benefits
of the security provided thereby.
(18) One Original. There is only one original
executed Contract (other than the original executed copy
retained by the Obligor), which Contract has been
delivered to the Trustee or the Custodian on or before
the Closing Date.
(19) Loan-to-Value Ratio. At the time of their
origination all of the Contracts had Loan-to-Value
Ratios not greater than 100%.
(20) Primary Resident. At the time of origination
of the Contract the Obligor was the primary resident of
the related Manufactured Home. In the case of the "Buy
For" program, the Obligor has purchased the Manufactured
Home for the primary resident. The "Buy For" program
loans represent 227 Initial Contracts and 5.23% of the
Cut-off Date Principal Balance of the Initial Contracts
as of the Cut-off Date.
(21) Not Real Estate. With respect to each Contract
other than a Land-and-Home Contract, the related
Manufactured Home is not generally considered or
classified as part of the real estate on which it is
located under the laws of the jurisdiction in which it
is located.
(22) Notation of Security Interest. With respect to
each Contract other than a Land-and-Home Contract, if
the related Manufactured Home is located in a state in
which notation of a security interest on the title
document is required or permitted to perfect such
security interest, the title document shows, or if a new
or replacement title document with respect to such
Manufactured Home is being applied for such title
document will be issued within 180 days and will show,
the Seller or its assignee as the holder of a first
priority security interest in such Manufactured Home; if
the related Manufactured Home is located in a state in
which the filing of a financing statement under the UCC
is required to perfect a security interest in
manufactured housing, such filings or recordings have
been duly made and show the Seller or its
43
assignee as secured party. If the related
Manufactured Home secures a Land-and-Home Contract, such
Manufactured Home is subject to a Mortgage properly
filed in the appropriate public recording office or such
Mortgage will be properly filed in the appropriate
public recording office within 180 days, naming the
Seller as mortgagee. In either case, the Trustee has the
same rights as the secured party of record would have
(if such secured party were still the owner of the
Contract) against all Persons (including the Seller and
any trustee in bankruptcy of the Seller) claiming an
interest in such Manufactured Home.
(23) Secondary Mortgage Market Enhancement Act. The
related Manufactured Home is a "manufactured home"
within the meaning of 00 Xxxxxx Xxxxxx Code, Section
5402(6). Each manufactured housing dealer from whom the
Seller purchased such Contract, if any, was then
approved by the Seller in accordance with the
requirements of the Secretary of Housing and Urban
Development set forth in 24 CFRss.201.27. At the
origination of each Contract, the Seller was approved
for insurance by the Secretary of Housing and Urban
Development pursuant to Section 2 of the National
Housing Act.
(24) Qualified Mortgage. The Contract represents a
"qualified mortgage" within the meaning of Section
860G(a)(3) of the Code. The Seller represents and
warrants that, either as of the date of origination or
the Closing Date, the fair market value of the property
securing each Contract was not less than 80% of the
"adjusted issue price" (within the meaning of the REMIC
Provisions) of such Contract.
(25) Simple Interest and Actuarial Contracts. No
more than 0.1% of the Initial Contracts are "simple
interest" manufactured housing installment loan
agreements or manufactured housing installment sales
contracts and the remaining Initial Contracts are
actuarial manufactured housing installment loan
agreements or manufactured housing installment sales
contracts.
(26) Land-and-Home Contracts: No Contract other
than a Land-and-Home Contract is secured, or intended to
be secured, in whole or in part by the lien of a
mortgage or deed of trust creating a first lien on an
estate in fee simple in the real property.
(27) Financing of Real Property: No Contract other
than a Land-and-Home Contract has financed any amount in
respect of real property.
SECTION 3.03. Reserved.
SECTION 3.04. Representations and Warranties Regarding the
Contracts in the Aggregate.
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The Seller represents and warrants, as of the Closing Date
with respect to the Contracts, that:
(1) Amounts. The aggregate principal amounts
payable by Obligors under the Contracts as of the
Cut-off Date equal the Cut-off Date Pool Principal
Balance. The aggregate principal amounts payable by
Obligors under the Initial Contracts as of the Cut-off
Date equal $128,255,925.78. The aggregate principal
amounts payable by Obligors under the Initial and
Additional Contracts as of the Cut-off Date equal
$135,000,000.
(2) Characteristics of Initial and Additional
Contracts. The Initial and Additional Contracts have the
following characteristics as of the Cut-off Date:
(A) the Obligors on not more than 22.59% of the Initial and Additional
Contracts by Cut-off Date Pool Principal Balance are located in any one
state, the Obligors on not more than 0.79% of the Contracts by Cut-off
Date Pool Principal Balance are located in an area with the same zip code
and the Obligors on not more than 0.20% of the Contracts by Cut-off Date
Pool Principal Balance are located in California in an area with the same
zip code;
(B) no Initial or Additional Contract has a remaining maturity of fewer than
52 months or more than 360 months;
(C) the final scheduled payment date on the Initial or Additional Contract
with the latest maturity is in July 1, 2032;
(D) 88.10% of the Initial and Additional Contracts by Cut-off Date Pool
Principal Balance is attributable to loans for purchases of new
Manufactured Homes and approximately 11.90% is attributable to loans for
purchases of used Manufactured Homes;
(E) 4.87% of the Initial and Additional Contracts by Cut-off Date Pool
Principal Balance is attributable to Land-and-Home Contracts;
(F) the Weighted Average Net Contract Rate of the Initial and Additional
Contracts as of the Cut-off Date is 10.770% per annum;
(G) 75.28% of the Initial and Additional Contracts by Cut-off Date Pool
Principal Balance is attributable to loans for the purchase of
multi-section Manufactured Homes;
(H) the weighted average (by Cut-off Date Pool Principal Balance) loan to
value ratio of the Initial and Additional Contracts is 87.60%;
(I) no Initial or Additional Contract was originated before November 2000;
and
(J) 29.06% of the Initial and Additional Contracts by Cut-off Date Pool
Principal Balance are secured by Manufactured Homes located in a mobile
home park.
45
(3) Computer Tape. The Computer Tape made available
by the Seller was complete and accurate as of its date
and includes a description of the same Contracts that
are described in the List of Contracts, excluding any
Contracts subject to Principal Prepayments in Full.
(4) Marking Records. By the Closing Date, the
Seller has caused the portions of the Electronic Ledger
relating to the Contracts to be clearly and
unambiguously marked to indicate that such Contracts
constitute part of the Trust and are owned by the Trust
in accordance with the terms of the trust created
hereunder.
(5) No Adverse Selection. No adverse selection
procedures have been employed in selecting the
Contracts.
SECTION 3.05. Representations and Warranties Regarding the
Contract Files.
The Seller has represented and warranted to the Depositor in
the Transfer Agreement, which representations and warranties the Seller hereby
assigns to the Trustee for the benefit of the Certificateholders, as of the
Closing Date with respect to the Initial and Additional Contracts, that:
(1) Bulk Transfer Laws. The transfer, assignment
and conveyance of the Contracts and the Contract Files
and Land-and-Home Contract Files by the Seller pursuant
to the Transfer Agreement is not subject to the bulk
transfer or any similar statutory provisions in effect
in any applicable jurisdiction.
SECTION 3.06. Repurchase of Contracts or Substitution of
Contracts for Breach of Representations and
Warranties.
(a) The Seller shall repurchase a Contract, at its
Repurchase Price, not later than the last day of the month prior to the month
that is 90 days after the day on which the Seller, the Servicer or the Trustee
first discovers a breach of a representation or warranty of the Seller set
forth in Sections 3.01, 3.02, 3.04 or 3.05 of this Agreement that materially
adversely affects the Trust's or the Certificateholders' interest in such
Contract and which breach has not been cured; provided, however, that (i) in
the event that a party other than the Seller first becomes aware of such
breach, such discovering party shall notify the Seller in writing within five
Business Days of the date of such discovery and (ii) with respect to any
Contract incorrectly described on the List of Contracts with respect to unpaid
principal balance, which the Seller would otherwise be required to repurchase
pursuant to this Section, the Seller may, in lieu of repurchasing such
Contract, deliver to the Servicer for deposit in the Certificate Account no
later than the first Determination Date that is 90 or more days from the date
of such discovery cash in an amount sufficient to cure such deficiency or
discrepancy. Any such cash so deposited shall be distributed to
Certificateholders on the immediately following Distribution Date as a
collection of principal on such Contract. Notwithstanding any other provision
of this Agreement, the obligation of the Seller under this Section shall not
terminate upon a Service Transfer pursuant to
46
Article VII. Notwithstanding the foregoing, the Seller shall repurchase any
Land-and-Home Contract, at such Contract's Repurchase Price, or substitute for
it an Eligible Substitute Contract as described in Section 3.06(b), if the
Seller has failed to deliver the related Land-and-Home Contract File to the
Trustee within 30 days of the Closing Date. Each of the parties to this
Agreement acknowledge that the provisions of this Section 3.06 are an
obligation solely of the Seller and not of any other party to this Agreement.
(b) On or prior to the date that is the second anniversary
of the Closing Date, the Seller, at its election, may substitute one or more
Eligible Substitute Contracts for any Contracts that it is obligated to
repurchase pursuant to Section 3.06(a) (such Contracts being referred to as
the "Replaced Contracts") upon satisfaction of the following conditions:
(i) the Seller shall have conveyed to the Trustee the
Contracts to be substituted for the Replaced Contracts and
the Contract Files related to such Contracts and the Seller
shall have marked the Electronic Ledger indicating that such
Contracts constitute part of the Trust;
(ii) the Contracts to be substituted for the Replaced
Contracts are Eligible Substitute Contracts and the Seller
delivers an Officers' Certificate, substantially in the form
of Exhibit L-2 hereto, to the Trustee certifying that such
Contracts are Eligible Substitute Contracts;
(iii) the Seller shall have delivered to the Trustee
evidence of filing of a UCC-1 financing statement executed
by the Seller as debtor, naming the Trustee as secured party
filed in the State of Delaware, listing such Contracts as
collateral, or shall have delivered to the Depositor or the
Trustee, as the case may be, an amended List of Contracts;
(i) in respect of Eligible Substitute Contracts that are
Land-and-Home Contracts:
(x) the Seller shall have delivered to the
Depositor, the related Land-and-Home
Contract Files; and
(y) the Seller shall have delivered to the
Trustee an Opinion of Counsel satisfactory
to the Trustee to the effect that the
Trustee holds a perfected first priority
lien in the real estate securing such
Eligible Substitute Contracts, or evidence
of recordation of the assignment to the
Trustee on behalf of the Trust of each
Mortgage securing such Eligible Contracts;
(ii) the Seller shall have delivered to the Trustee an
Opinion of Counsel to the effect that the substitution of
such Contracts for such Replaced Contracts will not cause
the Subsidiary REMIC or Master REMIC to fail to qualify as a
REMIC at any time under then applicable REMIC Provisions or
cause any "prohibited transaction" that will result in the
imposition of a tax under such REMIC Provisions; and
47
(iii) if the aggregate Principal Balance of such
Replaced Contracts is greater than the aggregate Principal
Balance of the Contracts being substituted, the Seller shall
have delivered to the Servicer for deposit in the
Certificate Account the amount of such excess and shall have
included in the Officers' Certificate required by clause
(ii) above a certification that such deposit has been made.
Upon satisfaction of such conditions, the Trustee shall add
such Contracts to, and delete such Replaced Contracts from, the List of
Contracts. Such substitution shall be effected prior to the first
Determination Date that occurs more than 90 days after the Seller becomes
aware, or receives written notice from the Trustee, of the breach referred to
in Section 3.06(a). Promptly after any substitution of a Contract, the Seller
shall give written notice of such substitution to S&P and Xxxxx'x.
(c) Upon receipt by the Trust by deposit in the Certificate
Account of the Repurchase Price under subsection (a) above, or the delivery of
an Eligible Substitute Contract pursuant to subsection (b) above, and upon
receipt of a certificate of a Servicing Officer in the form attached hereto as
Exhibit L-1 or L-2, the Trustee shall convey and assign to the Seller all of
the Trust's right, title and interest in the repurchased Contract or Replaced
Contract without recourse, representation or warranty, except as to the
absence of liens, charges or encumbrances created by or arising as a result of
actions of the Trustee.
(d) The Seller shall defend and indemnify the Trustee, its
officers, directors, employees and agents, and the Certificateholders against
all costs, expenses, losses, damages, claims and liabilities, including
reasonable fees and expenses of counsel, arising out of any claims which may
be asserted against or incurred by any of them as a result of any third-party
action arising out of any breach of any representation and warranty.
SECTION 3.07. No Repurchase or Substitution Under Certain
Circumstances.
Notwithstanding any provision of this Agreement to the
contrary, no repurchase or substitution pursuant to Section 3.06 shall be made
unless the Seller obtains for the Trustee an Opinion of Counsel addressed to
the Trustee that any such repurchase or substitution would not, under the
REMIC Provisions, (i) cause the Subsidiary REMIC or the Master REMIC to fail
to qualify as a REMIC while any regular interest in the Subsidiary REMIC or
the Master REMIC, respectively, is outstanding, (ii) result in a tax on
prohibited transactions within the meaning of Section 860F(a)(2) of the Code
or (iii) constitute a contribution after the startup day subject to tax under
Section 860G(d) of the Code. The Servicer shall attempt to obtain such Opinion
of Counsel. In the case of a repurchase or deposit pursuant to Section
3.06(a), the Seller shall, notwithstanding the absence of such opinion as to
the imposition of any tax as the result of such purchase or deposit,
repurchase such Contract or make such deposit and shall guarantee the payment
of such tax by paying to the Trustee the amount of such tax not later than
five Business Days before such tax shall be due and payable to the extent that
amounts previously paid over to and then held by the Trustee pursuant to
Section 6.06 hereof are insufficient to pay such tax and all other taxes
chargeable under Section 6.06. Pursuant to Section 6.06, the Trustee is hereby
directed to withhold, and shall withhold, an amount sufficient to pay such tax
and any other taxes imposed on "prohibited transactions" under Section
860F(a)(1) of the Code or imposed on
48
"contributions after start up date" under Section 860G(d) of the Code from
amounts otherwise distributable to Class R Certificateholders. The Servicer
shall give notice to the Trustee at the time of such repurchase of the amounts
due from the Seller pursuant to the guarantee of the Seller described above
and notice as to who should receive such payment.
The Trustee shall have no obligation to pay any such amounts
pursuant to this Section other than from moneys provided to it by the Seller
or from moneys held in the funds and accounts created under this Agreement.
The Trustee shall be deemed conclusively to have complied with this Section if
it follows the directions of the Seller.
In the event any tax that is guaranteed by the Seller
pursuant to this Section 3.07 is refunded to the Trust or otherwise is
determined not to be payable, the Seller shall be repaid the amount of such
refund or that portion of any guarantee payment made by the Seller that is not
applied to the payment of such tax.
ARTICLE IV
PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS
SECTION 4.01. Custody of Contracts.
(a) The Custodian on behalf of the Trustee shall maintain
custody of the Contract Files for the benefit of the Certificateholders. The
Trustee shall maintain custody of the Land-and-Home Contract Files. In the
event that the Trustee is no longer acting as Custodian of the Land-and-Home
Contract Files, upon execution and delivery of an agreement between the
Trustee and the Person assuming the duties of the Trustee hereunder as
Custodian with respect to the Land-and-Home Contract Files, the replacement
Custodian shall concurrently execute an acknowledgment of receipt of the
Land-and-Home Contract Files substantially in the form of Exhibit H hereto.
(b) The Custodian on behalf of the Trustee agrees to
maintain the related Contract Files at its office where they are currently
maintained, or at such other offices of the Custodian in the State of Texas as
shall from time to time be identified to the Trustee by written notice. The
Custodian may temporarily move individual Contract Files or any portion
thereof without notice as necessary to conduct collection and other servicing
activities in accordance with its customary practices and procedures.
(c) As Custodian, the Trustee shall have and perform the
following powers and duties:
(i) hold the Contract Files on behalf of the
Certificateholders, maintain accurate records pertaining to
each Contract to enable it to comply with the terms and
conditions of this Agreement, maintain a current inventory
thereof and conduct annual physical inspections of Contract
Files held by it under this Agreement;
(ii) implement policies and procedures, in writing and
signed by an Officer of the Custodian on behalf of the
Trustee, with respect to persons
49
authorized to have access to the Contract Files on the
Custodian's premises and the receipting for Contract Files
taken from their storage area by an employee of the
Custodian for purposes of servicing or any other purposes;
and
(iii) attend to all details in connection with
maintaining custody of the Contract Files on behalf of the
Certificateholders.
(d) In performing its duties under this Section, the
Custodian on behalf of the Trustee agrees to act with reasonable care, using
that degree of skill and care that it exercises with respect to similar
contracts or files for which it performs custodial duties. In acting as
Custodian of the Contract Files, the Trustee agrees further not to assert any
beneficial ownership interests in the Contracts or the Contract Files.
SECTION 4.02. Filings.
Within 7 days following the Closing Date, the Seller shall
cause the UCC-1 financing statement referred to in Section 2.02(7) to be
filed. The initial Servicer shall cause to be filed all necessary continuation
statements of the UCC-1 financing statement to be filed by the Depositor with
the Depositor as Debtor and the Trustee as Secured Party. From time to time
the initial Servicer shall take and cause to be taken such actions and execute
such documents as are necessary to perfect and protect the Certificateholders'
interest in the Contracts and their proceeds and the Manufactured Homes
against all other persons, including, without limitation, the filing of
financing statements, amendments thereto and continuation statements, the
execution of transfer instruments and the making of notations on or taking
possession of all records or documents of title. The initial Servicer will
maintain the Trustee's first priority perfected security interest in each
Manufactured Home and a first lien on each Mortgaged Property so long as the
related Contract is property of the Trust.
SECTION 4.03. Name Change or Relocation.
(a) During the term of this Agreement, the Seller shall not
change its name, identity or structure or relocate its chief executive office
or its place of formation without first giving notice thereof to the Trustee
and the Servicer. In addition, following any such change in the name,
identity, structure or location of the chief executive office or its place of
formation of the Seller, the Seller shall give written notice of any such
change to S&P and Xxxxx'x.
(b) If any change in the Seller's name, identity or
structure or the relocation of its chief executive office or its place of
formation would make any financing or continuation statement or notice of lien
filed under this Agreement seriously misleading within the meaning of
applicable provisions of the UCC or any title statute or would cause any such
financing or continuation statement or notice of lien to become unperfected
(whether immediately or with lapse of time), the Seller, no later than five
days after the effective date of such change, shall file, or cause to be
filed, such amendments or financing statements as may be required to preserve,
perfect and protect the Certificateholders' interest in the Contracts and
proceeds thereof and in the Manufactured Homes.
SECTION 4.04. Chief Executive Office and Place of Formation.
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During the term of this Agreement, the Seller will maintain
its chief executive office and its place of formation in one of the States of
the United States.
SECTION 4.05. Costs and Expenses.
The initial Servicer agrees to pay all reasonable costs and
disbursements in connection with the perfection and the maintenance of
perfection, as against all third parties, of the Certificateholders' right,
title and interest in and to the Contracts (including, without limitation, the
security interests in the Manufactured Homes granted thereby).
ARTICLE V
SERVICING OF CONTRACTS
SECTION 5.01. Responsibility for Contract Administration.
The Servicer will have the sole obligation to manage,
administer, service and make collections on the Contracts and perform or cause
to be performed all contractual and customary undertakings of the holder of
the Contracts to the Obligor. At the written request of the Servicer,
accompanied by the form of power of attorney or other documents being
requested, the Trustee shall furnish to the Servicer any powers of attorney
and other documents necessary or appropriate to enable the Servicer to carry
out its servicing and administrative duties hereunder, and the Trustee shall
not be held responsible for any acts by the Servicer in its uses of any such
powers of attorney or other document. The Servicer shall indemnify the Trustee
for any reasonable costs, liabilities and expenses (including reasonable
attorneys' fees) incurred by the Trustee in connection with the intentional or
negligent misuse of such power of attorney by the Servicer, as applicable.
Notwithstanding anything contained herein to the contrary, the Servicer shall
not without the Trustee's written consent (i) initiate any action, suit or
proceeding solely under the Trustee's name without indicating the Servicer's
representative capacity or (ii) knowingly cause the Trustee to be registered
to do business in any state, provided, however, that the preceding clause (i)
shall not apply to the initiation of actions relating to Contracts that the
Servicer is servicing pursuant to its respective duties herein. The
limitations of the preceding clause shall not be construed to limit any duty
or obligation imposed on the Trustee under any other provision of this
Agreement. Origen Financial L.L.C. is hereby appointed the Servicer until such
time as any Service Transfer shall be effected under Article VII.
SECTION 5.02. Standard of Care.
In managing, administering, servicing and making collections
on the Contracts pursuant to this Agreement, the Servicer will exercise that
degree of skill and care consistent with the highest degree of skill and care
that the Servicer exercises with respect to similar contracts serviced by the
Servicer; provided, however, that (i) such degree of skill and care shall be
at least as favorable as the degree of skill and care generally applied by
servicers of manufactured housing installment sales contracts for
institutional investors and (ii) notwithstanding the foregoing, the Servicer
shall not release or waive the right to collect the unpaid balance on any
Contract unless it makes the determination that acceptance of the liquidation
proceeds from the related Obligor would result in the Trust receiving a
greater
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amount of collections than the Net Liquidation Proceeds that would
result from repossessing and liquidating the related Manufactured Home.
SECTION 5.03. Records.
The Servicer shall, during the period it is servicer
hereunder, maintain such books of account and other records as will enable the
Trustee to determine the status of each Contract.
SECTION 5.04. Inspection; Computer Tape.
(a) At all times during the term hereof, the Servicer shall
afford the Trustee and its authorized agents reasonable access during normal
business hours to the Servicer's records, which have not previously been
provided to the Trust, relating to the Contracts and will cause its personnel
to assist in any examination of such records by the Trustee or its authorized
agents. The examination referred to in this Section will be conducted in a
manner which does not unreasonably interfere with the Servicer's normal
operations or customer or employee relations. Without otherwise limiting the
scope of the examination the Trustee may make, the Trustee may, using
generally accepted audit procedures, verify the status of each Contract and
review the Electronic Ledger and records relating thereto for conformity to
Monthly Reports prepared pursuant to Article VI and compliance with the
standards represented to exist as to each Contract in this Agreement.
(b) At all times during the term hereof, the Servicer shall
keep available a copy of the List of Contracts at its principal executive
office for inspection by Certificateholders.
(c) On or before the fourth Business Day prior to each
Distribution Date, the Servicer will determine the amount available to be
remitted to the Distribution Account for the applicable Distribution Date and
will provide to the Trustee and the Backup Servicer an electronic file (the
"Electronic File") setting forth such amount and any other information
necessary for the Trustee to perform the calculations required hereunder and
prepare the Monthly Report. The Trustee will be entitled to rely on
information supplied by the Servicer without independent verification.
SECTION 5.05. Certificate Account.
(a) On or before the Closing Date, the Servicer shall
establish the Certificate Account on behalf of the Trust, which must be an
Eligible Account and notify the Trustee and the Backup Servicer of the
location of the Certificate Account. The Certificate Account shall be entitled
"Origen Financial for the benefit of Bank One, National Association as Trustee
for the benefit of holders of Origen Manufactured Housing Contract
Asset-Backed Certificates, Series 2002-A." The Servicer shall pay into the
Certificate Account as promptly as practicable (not later than the second
Business Day) following receipt thereof:
(i) all payments received after the Cut-Off Date on
account of principal on the Contracts and all Principal
Prepayments collected after the Cut-Off Date;
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(ii) all payments received or advanced after the Cut-Off
Date on account of interest on the Contracts;
(iii) all Net Liquidation Proceeds;
(iv) all Insurance Proceeds unless to be used to
directly offset the cost of repairing the related property;
(v) any amounts payable in connection with the
repurchase of any Contract pursuant to Section 3.06; and
(vi) any other amount required to be deposited in the
Certificate Account pursuant to this Agreement;
provided, however, that with respect to each Due Period, the Servicer shall be
permitted to retain the Monthly Servicing Fee for such Due Period from
payments in respect of interest on the Contracts in accordance with Section
8.02 hereof; provided, further, however, that with respect to each Due Period,
the Servicer shall be permitted to retain any unreimbursed Monthly Advances
from payments from the Obligors, from Liquidation Proceeds and from Insurance
Proceeds in accordance with Sections 8.02 or 8.04 hereof. The foregoing
requirements respecting deposits to the Certificate Account are exclusive, it
being understood that, without limiting the generality of the foregoing, the
Servicer need not deposit in the Certificate Account amounts representing late
payment fees, assumption fees, extension fees or escrow deposits payable by
Obligors, which amounts shall be property of the Servicer. All amounts paid
into the Certificate Account under this Agreement shall be held in trust for
the Trustee and the Certificateholders until payment or withdrawal of any such
amounts is authorized under this Agreement.
If the Servicer so directs, the institution maintaining the
Certificate Account shall, in the name of the Trustee in its capacity as such,
invest the amounts in the Certificate Account in Eligible Investments that
mature not later than one Business Day prior to the next succeeding
Distribution Date. All income and gain from such investments shall be payable
to the Servicer. An amount equal to any net loss on such investments shall be
deposited in the Certificate Account by the Servicer out of its own funds
immediately as realized. The Trustee shall in no way be liable for losses on
amounts invested in accordance with the provisions hereof. Funds in the
Certificate Account not so invested must be insured to the extent permitted by
law by the Federal Deposit Insurance Corporation.
(b) If at any time the Servicer receives notice (from S&P,
Xxxxx'x or the Trustee or otherwise) that the Certificate Account has ceased
to be an Eligible Account, the Servicer must, as soon as practicable but in no
event later than 5 Business Days of the Servicer's receipt of such notice,
transfer the Certificate Account and all funds and Eligible Investments
therein to an Eligible Account. Following any such transfer, the Servicer must
notify each of S&P, Xxxxx'x and the Trustee of the location of the Certificate
Account.
SECTION 5.06. Enforcement.
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(a) The Servicer shall, consistent with customary servicing
procedures and the terms of this Agreement, act with respect to the Contracts
in such manner as, in the Servicer's reasonable judgment, will maximize the
receipt of principal and interest on such Contracts and Liquidation Proceeds
with respect to Liquidated Contracts.
(b) The Servicer may xxx to enforce, initiate a replevin
action, or collect upon Contracts, in its own name, if possible, or as agent
for the Trust.
(c) The Servicer shall exercise any rights of recourse
against third persons that exist with respect to any Contract in accordance
with the Servicer's usual practice. In exercising recourse rights, the
Servicer is authorized on the Trustee's behalf to reassign the Contract or to
resell the related Manufactured Home to the person against whom recourse
exists at the price set forth in the document creating the recourse.
(d) The Servicer may grant to the Obligor on any Contract
any rebate, refund or adjustment out of the Certificate Account that the
Servicer in good faith believes is required because of prepayment in full of
the Contract. The Servicer will not permit any rescission or cancellation of
any Contract, except as required by applicable law or regulation or upon the
order of any court or other governmental authority asserting jurisdiction in a
suit, claim or complaint involving the Contract.
(e) The Servicer may, consistent with its customary
servicing procedures and consistent with Section 5.02, grant to the Obligor on
any Contract an extension of payments due under such Contract, provided that
Obligors may not be solicited for extensions, no such extension may extend
beyond the final scheduled payment date of the Contract with the latest
maturity, as specified in Section 3.04(2)(c), and no more than three one-month
extensions for any one Contract of payments under a Contract may be granted in
any twelve-month period. Notwithstanding the foregoing, in connection with a
Contract that is in default or for which default is imminent, the Servicer
may, consistent with the servicing standard described in Section 5.01, waive,
modify or vary any term of that Contract (including modifications that change
the Contract Rate, forgive the payment of principal or interest or extend the
final maturity date of that Contract), accept payment from the related Obligor
of an amount less than the Principal Balance in final satisfaction of that
Contract, or consent to the postponement of strict compliance with any such
term or otherwise grant the indulgence to any Obligor if in the Servicer's
determination such waiver, modification, postponement or indulgence is not
materially adverse to the interests of the Certifcateholders (taking into
account any estimated loss that might result absent such action). However, the
Servicer cannot extend the maturity of any Contract past the date on which the
final payment is due on the latest maturing Contract as of the related Cut-off
Date. In the event of any such arrangement, the Servicer shall make Advances
on the related Contract in accordance with Section 8.04 during the scheduled
period in accordance with the amortization schedule of the Contract without
modification thereof because of the arrangements.
(f) The Servicer may enforce any due-on-sale clause in a
Contract if such enforcement is called for under its then current servicing
policies for obligations similar to the Contracts, provided that such
enforcement is permitted by applicable law and will not adversely affect any
applicable insurance policy. If an assumption of a Contract is permitted by
the
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Servicer upon conveyance of the related Manufactured Home, the Servicer
shall use its best efforts to obtain an assumption agreement in connection
therewith and add such assumption agreement to the related Contract File or
Land-and-Home Contract File.
(g) Any provision of this Agreement to the contrary
notwithstanding, the Servicer shall not agree to the modification or waiver of
any provision of a Contract if such modification or waiver would be treated as
a taxable exchange under the REMIC Provisions.
SECTION 5.07. Trustee to Cooperate.
(a) Upon payment in full on any Contract, the Servicer will
notify the Trustee and the Seller on the next succeeding Distribution Date by
certification of a Servicing Officer (which certification shall include a
statement to the effect that all amounts received in connection with such
payments which are required to be deposited in the Certificate Account
pursuant to Section 5.05 have been so deposited). The Servicer is authorized
to execute an instrument in satisfaction of such Contract and to do such other
acts and execute such other documents as the Servicer deems necessary to
discharge the Obligor thereunder and eliminate the lien on the related real
estate and collateral. The Servicer shall determine when a Contract has been
paid in full; to the extent that insufficient payments are received on a
Contract credited by the Servicer as prepaid or paid in full and satisfied,
the shortfall shall be paid by the Servicer out of its own funds.
(b) From time to time as appropriate for servicing and
foreclosure in connection with any Land-and-Home Contract, the Trustee shall,
upon written request of a Servicing Officer and delivery to the Trustee of a
receipt signed by such Servicing Officer, at the expense of the Servicer,
cause the original Land-and-Home Contract and the related Land-and-Home
Contract File to be released to the Servicer and shall execute such documents
as the Servicer shall deem necessary to the prosecution of any such
proceedings. The Trustee shall stamp the face of each such Land-and-Home
Contract to be released to the Servicer with a notation that the Land-and-Home
Contract has been assigned to the Trustee. Upon request of a Servicing
Officer, the Trustee shall perform such other acts as reasonably requested by
the Servicer and otherwise cooperate with the Servicer in enforcement of the
Certificateholders' rights and remedies with respect to Contracts.
(c) The Servicer's receipt of a Land-and-Home Contract
and/or Land-and-Home Contract File shall obligate the Servicer to return the
original Land-and-Home Contract and the related Land-and-Home Contract File to
the Trustee when its need by the Servicer has ceased unless the Contract shall
be liquidated or repurchased or replaced as described in Section 3.06.
SECTION 5.08. Costs and Expenses.
All costs and expenses incurred by the Servicer in carrying
out its duties hereunder, including all fees and expenses incurred in
connection with the enforcement of Contracts (including enforcement of
defaulted Contracts and repossessions of Manufactured Homes securing such
Contracts) shall be paid by the Servicer and the Servicer shall not be
entitled to reimbursement hereunder, except to the extent specifically
provided herein.
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Furthermore, the Servicer shall be reimbursed out of the
Liquidation Proceeds of a Liquidated Contract for Liquidation Expenses
incurred by it. The Servicer shall not incur such Liquidation Expenses unless
it determines in its good faith business judgment that incurring such expenses
will increase the Net Liquidation Proceeds on the related Contract.
SECTION 5.09. Maintenance of Insurance.
(a) Except as otherwise provided in subsection (b) of this
Section 5.09, the Servicer shall cause to be maintained with respect to each
Contract one or more Hazard Insurance Policies which provide, at a minimum,
the same coverage as a standard form fire and extended coverage insurance
policy that is customary for manufactured housing, issued by a company
authorized to issue such policies in the state in which the related
Manufactured Home is located and in an amount which is not less than the
maximum insurable value of such Manufactured Home or the principal balance due
from the Obligor on the related Contract, whichever is less; provided,
however, that the amount of coverage provided by each Hazard Insurance Policy
shall be sufficient to avoid the application of any co-insurance clause
contained therein; and provided, further, that such Hazard Insurance Policies
may provide for customary deductible amounts. With respect to any Contract,
the Seller shall obtain (i) a statement from the Obligor's insurance agent
that the Manufactured Home was, at the time of origination of the Contract,
not in a federally designated special flood hazard area, or (ii) evidence
that, at the time of origination, flood insurance was in effect, which
coverage was at least equal to the minimum amount specified in the preceding
sentence or such lesser amount as may be available under the federal flood
insurance program. Each Hazard Insurance Policy caused to be maintained by the
Servicer shall contain a standard loss payee clause in favor of the Servicer
and its successors and assigns. If any Obligor is in default in the payment of
premiums on its Hazard Insurance Policy or Policies, the Servicer shall force
place coverage and pay such premiums out of its own funds and may separately
add such premium to the Obligor's obligation as provided by the Contract, but
shall not add such premium to the remaining principal balance of the Contract.
If the Obligor does not reimburse the Servicer for payment of such premiums
and the related Contract is liquidated after a default, the Servicer shall be
reimbursed for its payment of such premiums out of the related Liquidation
Proceeds, and if such advance for insurance premiums is deemed by the Servicer
to be nonrecoverable in its reasonable opinion, the Servicer may reimburse
itself from the Certificate Account for such nonrecoverable advance.
(b) The Servicer may, in lieu of causing individual Hazard
Insurance Policies to be maintained with respect to each Manufactured Home
pursuant to subsection (a) of this Section 5.09, and shall, to the extent that
the related Contract does not require the Obligor to maintain a Hazard
Insurance Policy with respect to the related Manufactured Home, maintain one
or more blanket insurance policies covering losses on the Obligor's interest
in the Contracts resulting from the absence or insufficiency of individual
Hazard Insurance Policies. Any such blanket policy shall be substantially in
the form and in the amount carried by the Servicer as of the date of this
Agreement. The Servicer shall pay the premium for such policy on the basis
described therein and shall deposit into the Certificate Account from its own
funds any deductible amount with respect to claims under such blanket
insurance policy relating to the Contracts. The Servicer shall not, however,
be required to deposit any deductible amount with respect to claims under
individual Hazard Insurance Policies maintained pursuant to subsection (a) of
this Section. If the insurer under such blanket insurance policy shall cease
to be acceptable
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to the Servicer, the Servicer shall exercise its best reasonable efforts to
obtain from another insurer a replacement policy comparable to such policy.
(c) With respect to each Manufactured Home that has been
repossessed in connection with a defaulted Contract, the Servicer shall either
(i) maintain one or more Hazard Insurance Policies thereon or (ii) self-insure
such Manufactured Homes and deposit into the Certificate Account from its own
funds any losses caused by damage to such Manufactured Home that would have
been covered by a Hazard Insurance Policy.
(d) The Servicer shall keep in force throughout the term of
this Agreement (i) a policy or policies of insurance covering errors and
omissions for failure to maintain insurance as required by this Agreement and
(ii) a fidelity bond. Such policy or policies and such fidelity bond shall be
in such form and amount as is generally customary among Persons which service
a portfolio of manufactured housing installment sales contracts and
installment loan agreements having an aggregate principal amount of
$100,000,000 or more and which are generally regarded as servicers acceptable
to institutional investors.
SECTION 5.10. Repossession.
Notwithstanding the standard of care specified in Section
5.02, the Servicer shall commence procedures for the repossession of any
Manufactured Home or the foreclosure upon any Mortgaged Property or take such
other steps that in the Servicer's reasonable judgment will maximize the
receipt of principal and interest or Net Liquidation Proceeds with respect to
the Contract secured by such Manufactured Home or Mortgaged Property (which
may include retitling or filing a recorded assignment of the Mortgage) subject
to the requirements of the applicable state and federal law, promptly after
the time when such Contract becomes a Defaulted Contract and may do so sooner;
provided that if the Servicer has actual knowledge that a Mortgaged Property
is affected by hazardous waste, then the Servicer shall not cause the Trustee
to acquire title to such Mortgaged Property in a foreclosure or similar
proceeding. For purposes of the proviso in the preceding sentence, the
Servicer shall not be deemed to have actual knowledge that a Mortgage Property
is affected by hazardous waste unless it shall have received written notice
that hazardous waste is present on such property. In connection with such
foreclosure or other conversion, the Servicer shall follow such practices and
procedures as it shall deem necessary or advisable and as shall be consistent
with Section 5.02. In the event that title to any Mortgaged Property is
acquired in foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be issued to the Trustee, as Trustee, or, at its
election, to its nominee on behalf of the Trustee, as Trustee.
The Servicer shall not complete, or allow to be completed, a
repossession or foreclosure with respect to any Ineligible Foreclosure
Property Contract if it would cause the Trust to hold such repossessed
property from Ineligible Foreclosure Property Contracts with an aggregate
value in excess of 0.75% of the aggregate outstanding balance of the Contracts
as of the end of the prior Due Period unless the Trustee has been supplied
with an Opinion of Counsel, at the expense of the Trust, to the effect that if
the related property is acquired by the Trust, such property will qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code.
If the value of properties from Ineligible Foreclosure Property Contracts
equals or exceeds 1% of the outstanding principal balance of the Contracts as
of the end of the prior Due
57
Period, the initial Servicer shall purchase at the
Purchase Price on or prior to the Distribution Date for such Due Period
sufficient property from Ineligible Foreclosure Property Contracts to cause
the Trust Fund to hold property from Ineligible Foreclosure Property Contracts
with a value of less than 1% of the outstanding principal balance of the
Contracts and such proceeds shall be treated as received during the Due
Period. For purposes of this paragraph the value of property from an
Ineligible Foreclosure Property Contract shall be treated as equal to the
principal balance of the related Ineligible Foreclosure Property Contract plus
interest that had accrued on such Contract as of the date of acquisition of
the property by the Trust Fund.
SECTION 5.11. Subservicing Arrangements.
The Servicer may arrange for the subservicing of any
Contract by a Subservicer pursuant to a subservicing agreement; provided,
however, that such subservicing arrangement and the terms of the related
subservicing agreement must provide for the servicing of such Contracts in a
manner consistent with the servicing arrangements contemplated hereunder.
Unless the context otherwise requires, references in this Agreement to actions
taken or to be taken by the Servicer in servicing the Contracts include
actions taken or to be taken by a Subservicer on behalf of the Servicer.
Notwithstanding the provisions of any subservicing agreement, any of the
provisions of this Agreement relating to agreements or arrangements between
the Servicer and a Subservicer or reference to actions taken through a
Subservicer or otherwise, the Servicer shall remain obligated and liable to
the Depositor, the Trustee, the Seller and the Certificateholders for the
servicing and administration of the Contracts in accordance with the
provisions of this Agreement without diminution of such obligation or
liability by virtue of such subservicing agreements or arrangements or by
virtue of indemnification from the Subservicer and to the same extent and
under the same terms and conditions as if the Servicer alone were servicing
and administering the Contracts. All actions of each Subservicer performed
pursuant to the related subservicing agreement shall be performed as an agent
of the Servicer with the same force and effect as if performed directly by the
Servicer. Origen Financial, Inc. is hereby deemed an acceptable Subservicer
for purposes of this Agreement.
For purposes of this Agreement, the Servicer shall be deemed
to have received any collections, recoveries or payments with respect to the
Contracts that are received by a Subservicer regardless of whether such
payments are remitted by the Subservicer to the Servicer.
SECTION 5.12. Retitling; Security Interests.
(a) If, at any time, a Service Transfer has occurred and the
new Servicer is unable to foreclose upon a Manufactured Home because the title
document for such Manufactured Home does not show such Servicer or the Trustee
as the holder of the first priority security interest in the Manufactured
Home, such Servicer shall take all necessary steps to apply for a replacement
title document showing it or the Trustee as the secured party, provided that
the new Servicer shall be reimbursed by the Trust for all reasonable expenses
in connection with its responsibilities under this Section 5.12.
(b) In order to facilitate the Servicer's actions, as
described in subsection (a) of this section, Origen Financial L.L.C. will
provide the Servicer with any necessary power of attorney permitting it to
retitle the Manufactured Home.
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(c) If the Servicer is still unable to retitle the
Manufactured Home, Origen Financial L.L.C. will take all actions necessary to
act with the Servicer to initiate replevin action upon the Manufactured Home,
including, as appropriate, the filing of any UCC-1 or UCC-2 financing
statements necessary to perfect the security interest in any Manufactured Home
that constitutes a fixture under the laws of the jurisdiction in which it is
located and all actions necessary to perfect the security interest in any
Manufactured Home that is considered or classified as part of the real estate
on which it is located under the laws of the jurisdiction in which it is
located.
(d) The Seller shall (i) within 60 days of the Closing Date
submit to the appropriate recording offices the assignments to the Trustee on
behalf of the Trust of the Mortgages securing Land-and-Home Contracts or (ii)
on the Closing Date deliver an Opinion of Counsel satisfactory to the Trustee
to the effect that the Trustee holds a perfected first priority lien in the
real estate securing the Land-and-Home Contracts, with the exception of real
estate located in such states as may be identified in such Opinion of Counsel.
SECTION 5.13. Covenants, Representations and Warranties of
Servicer. By its execution and delivery of this Agreement, Origen Financial
L.L.C., as initial Servicer, makes the following representations, warranties
and covenants on which the Trust relies in accepting the Contracts and issuing
the Certificates.
(A) Formation and Good Standing. The Servicer is a
limited liability company formed, validly existing and in
good standing under the laws of the jurisdiction of its
formation and has the power to own its assets and to
transact the business in which it is currently engaged. The
Servicer is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in
which the character of the business transacted by it or
properties owned or leased by it requires such qualification
and in which the failure so to qualify would have a material
adverse effect on the business, properties, assets, or
condition (financial or other) of the Servicer.
(B) Authorization; Binding Obligations. The Servicer has
the power and authority to make, execute, deliver and
perform this Agreement and all of the transactions
contemplated under this Agreement and has taken all
necessary corporate action to authorize the execution,
delivery and performance of this Agreement. When executed
and delivered, this Agreement will constitute the legal,
valid and binding obligation of the Servicer enforceable in
accordance with its terms, except as enforcement of such
terms may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies.
(C) No Consent Required. The Servicer is not required to
obtain the consent of any other party or any consent,
license, approval or authorization from, or registration or
declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement,
except for such consents, licenses, approvals and
authorizations as have been obtained.
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(D) No Violations. The execution, delivery and
performance by the Servicer of this Agreement and the
fulfillment of its terms will not violate any provision of
any existing law or regulation or any order or decree of any
court or the related Certificate of Incorporation or Bylaws
of the Servicer, or constitute a material breach of any
mortgage, indenture, contract or other agreement to which
the Servicer is a party or by which the Servicer may be
bound.
(E) Litigation. No litigation or administrative
proceeding of or before any court, tribunal or governmental
body is currently pending, or to the knowledge of the
Servicer threatened, against the Servicer or any of its
properties or with respect to this Agreement or the
Certificates which, if adversely determined, would in the
opinion of the Servicer have a material adverse effect on
the transactions contemplated by this Agreement.
(F) Chief Executive Office. The chief executive office
of the Servicer is at 000 Xxxx Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000.
(G) No Default. The Servicer is not in default with
respect to any order or decree of any court or any order,
regulation or demand of any federal, state, municipal or
governmental agency, which default would materially and
adversely affect its condition (financial or other) or
operations or its properties or the consequences of which
would materially and adversely affect its performance
hereunder. The Servicer is not in default under any
agreement involving financial obligations or on any
outstanding obligation which would materially adversely
impact its financial condition or operations or legal
documents associated with the transaction contemplated by
this Agreement.
(H) No Amendments. The Servicer shall not extend or
otherwise amend the terms of any Contract, except in
accordance with Section 5.06.
SECTION 5.14. Payment of Taxes. If the Servicer becomes
aware of the nonpayment by an Obligor of a real or personal property tax or
other tax or charge which may result in a lien upon a Manufactured Home or
Mortgaged Property prior to, or equal to or coordinate with, the lien of the
related Contract, the Servicer, consistent with Section 5.02, shall take
action, including the advancing, but only to the extent that the Servicer
deems, in its sole judgement, such advance recoverable, of such taxes or
charges to avoid the attachment of any such lien. If the Servicer shall have
paid any such real or personal property tax or other tax or charge directly on
behalf of an Obligor, the Servicer may separately add such amount to the
Obligor's obligation as provided by the Contract, but, for the purposes of
this Agreement, may not add such amount to the remaining principal balance of
the Contract. If the Servicer shall have repossessed a Manufactured Home or
Mortgaged Property on behalf of the Certificateholders and the Trustee, the
Servicer shall advance, but only to the extent that the Servicer, in its sole
judgment, deems such advance recoverable, the amount of any such tax or charge
arising during the time such Manufactured Home is in the Servicer's possession
or title to the Mortgaged Property is in the name of the Servicer (or any
Person acting on behalf of the Servicer), unless the Servicer is contesting in
good faith such tax or charge or the validity of the claimed lien on such
Manufactured Home or Mortgaged Property. If the Obligor does not
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reimburse the Servicer for payment of such taxes or charges pursuant to this
Section 5.14 and the related Contract is liquidated after a default, the
Servicer shall be reimbursed for its payment of such taxes or charges out of
the related Liquidation Proceeds. If Liquidation Proceeds are insufficient to
reimburse the Servicer for any such premiums, the amount of such insufficiency
shall constitute, and be reimbursable to the Servicer as, a Nonrecoverable
Advance.
ARTICLE VI
REPORTS AND TAX MATTERS
SECTION 6.01. Monthly Reports.
(a) No later than 1:00 p.m. on the fourth Business Day prior
to each Distribution Date, the Servicer shall deliver to the Trustee and the
Backup Servicer, the Electronic File referred to in Section 5.04(c).
(b) Reserved.
SECTION 6.02. Certificate of Servicing Officer.
Each Electronic File pursuant to Section 6.01 shall be
accompanied by a certificate of a Servicing Officer substantially in the form
of Exhibit I, certifying the accuracy of the Electronic File and that no Event
of Termination or event that with notice or lapse of time or both would become
an Event of Termination has occurred, or if such event has occurred and is
continuing, specifying the event and its status.
SECTION 6.03. Other Data.
In addition, the Seller and (if different from the Seller)
the Servicer shall, on request of the Trustee, S&P or Xxxxx'x, furnish the
Trustee and/or S&P or Xxxxx'x such underlying data as may be reasonably
requested.
SECTION 6.04. Annual Report of Accountants; Annual Statement
of Compliance.
On or before the fifteenth day of the third month following
the end of the Servicer's fiscal year of each year, commencing in 2003, the
Servicer at its expense shall cause a firm of independent public accountants
which is a member of the American Institute of Certified Public Accountants to
issue to the Servicer a report that such firm has examined selected documents,
records and management's assertions relating to loans serviced by the Servicer
and stating that, on the basis of such examination, such servicing has been
conducted in compliance with the minimum servicing standards identified in the
Mortgage Bankers Association of America's Uniform Single Attestation Program
for Mortgage Bankers, or any successor uniform program, except for such
significant exceptions or errors in records that, in the opinion of such firm,
generally accepted attestation standards requires it to report. The Servicer
shall deliver a copy of such report to the Trustee, the Depositor and the
Rating Agencies.
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The Servicer shall deliver to the Depositor, the Rating
Agencies and the Trustee on or before on or before the fifteenth day of the
third month following the end of the Servicer's fiscal year of each year,
commencing in 2003 an Officer's Certificate stating, as to the signer thereof,
that (i) a review of the activities of the Servicer during the preceding
fiscal year and of the performance of the Servicer under this Agreement has
been made under such officer's supervision and (ii) to the best of such
officer's knowledge, based on such review, the Servicer has fulfilled all its
obligations under this Agreement throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof.
SECTION 6.05. Statements to Certificateholders.
(a) Based on the information set forth in the Electronic
File, the Trustee will prepare and make available the Monthly Report
substantially in the form of Exhibit N for each Distribution Date to each
Certificateholder, the Underwriter and the parties hereto.
(b) Each Monthly Report shall set forth the following:
(i) the amount of such distribution to Holders of each
Class of Certificates allocable to interest, separately
identifying any related Unpaid Class Interest Shortfall
included in such distribution and any remaining Unpaid Class
Interest Shortfall after giving effect to such distribution;
(ii) the amount of such distribution to Holders of each
Class of Certificates allocable to principal, separately
identifying the aggregate amount of any Principal
Prepayments included therein, and any remaining related
Unpaid Class Principal Shortfall after giving effect to such
distribution;
(iii) the Class Principal Balance for each Class of
Certificates, after giving effect to the distribution of
principal on such Distribution Date; the Class M-1 Principal
Balance and the Class M-1 Adjusted Principal Balance (if
different) after giving effect to the distribution of
principal on such Distribution Date; the Class M-2 Principal
Balance and the Class M-2 Adjusted Principal Balance (if
different) after giving effect to the distribution of
principal on such Distribution Date; the Class B-1 Principal
Balance and the Class B-1 Adjusted Principal Balance (if
different) after giving effect to the distribution of
principal on such Distribution Date;
(iv) the Class A Percentage, Class M-1 Percentage, Class
M-2 Percentage and Class B Percentage for such Distribution
Date and the following Distribution Date;
(v) the Pool Principal Balance of the Contracts for such
Distribution Date;
(vi) the Pool Factor;
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(vii) the number and aggregate principal balances of
Contracts delinquent (a) 30-59 days and (b) 60 or more days;
(viii) the number of Manufactured Homes that were
repossessed during the month ending immediately prior to
such Distribution Date, the number of repossessed
Manufactured Homes that remain in inventory as of the last
day of the related Due Period and repossessed Manufactured
Homes purchased by the Seller or a subsidiary of the Seller
from the Trust (during the related Due Period and
cumulatively) by number of Contracts, aggregate Principal
Balance of such Contracts and aggregate purchase price;
(ix) number of Contracts and aggregate Principal Balance
of Contracts extended or otherwise amended during the Due
Period preceding current Distribution Date.
(x) the Class M-1 Distribution Test;
(xi) the Class M-2 Distribution Test;
(xii) the Class B Distribution Test;
(xiii) the Weighted Average Net Contract Rate of all
outstanding Contracts;
(xiv) the Class M-1 Interest Deficiency Amount, if any,
for such Distribution Date;
(xv) the Class M-2 Interest Deficiency Amount, if any,
for such Distribution Date;
(xvi) the Class B-1 Interest Deficiency Amount, if any,
for such Distribution Date;
(xvii) the Targeted Overcollateralization Amount,
Overcollateralization Amount, Overcollateralization
Deficiency Amount and Overcollateralization Release Amount,
if any, for such Distribution Date;
(xviii) the Additional Principal Distribution Amount, if
any, to be distributed on such Distribution Date pursuant to
Section 8.03(a)(11) or Section 8.03(a)(12);
(xix) Cumulative Realized Losses; and
(xx) Current Realized Losses.
In the case of information furnished pursuant to clauses (i)
through (iii) above, the amounts shall be expressed as a dollar amount per
Class of Certificates with a $1,000 denomination.
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The Trustee will make available each month to any Holder or
beneficial owner of offered Certificates, the Monthly Report via the Trustee's
internet web site, initially located at xxxx://xxx.xxx.xxxxxxx.xxx/xxxxxx. The
Trustee will make no representations or warranties as to the accuracy or
completeness of, and may attach a reasonable and customary disclaimer to, any
information made available by it on its web site. The Trustee may require
registration and the acceptance of a disclaimer in connection with providing
access to its internet web site. The Trustee will cooperate with the Seller to
make information available to other information sources, including Bloomberg
and Intex. The Trustee will not be liable for the dissemination of information
in accordance with this Agreement.
Within a reasonable period of time after the end of each
calendar year, the Trustee shall furnish or cause to be furnished to each
Person who at any time during the calendar year was the Holder of a
Certificate a statement containing the information with respect to interest
accrued and principal paid on its Certificates during such calendar year. Such
obligation of the Trustee shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Trustee
pursuant to any requirements of the Code as from time to time in force.
SECTION 6.06. Payment of Taxes.
The Trustee shall be responsible for and agrees to prepare,
make and file all federal, state, local or other tax returns, information
statements and other returns and documents of every kind and nature whatsoever
required to be made or filed by or on behalf of the Subsidiary REMIC or Master
REMIC pursuant to the Code and other applicable tax laws and regulations. Each
such return, statement and document shall, to the extent required by the Code
or other applicable law and at the request of the Servicer, be signed on
behalf of the Subsidiary REMIC or Master REMIC by the Trustee. The Servicer,
if and for so long as it is a Class R Certificateholder, shall be designated
the "tax matters person" on behalf of the Subsidiary REMIC and the Master
REMIC, respectively, in the same manner as a partnership may designate a "tax
matters partner," as such term is defined in Section 6231(a)(7) of the Code.
To the extent permitted by the REMIC Provisions, the Servicer and any
subsequent holder of a Class R Certificate, by acceptance thereof, irrevocably
designates and appoints the Trustee as its agent to perform the
responsibilities of the "tax matters person" on behalf of the Subsidiary REMIC
and the Master REMIC, respectively, if, and during such time as, the Servicer
is not the holder of a Class R Certificate. The Trustee may, at its expense,
retain such outside assistance as it deems necessary in the performance of its
obligations under this paragraph.
Each of the Holders of the Certificates, by acceptance
thereof, agrees to file tax returns consistent with and in accordance with any
elections, decisions or other reports made or filed with regard to federal,
state or local taxes on behalf of the Subsidiary REMIC or the Master REMIC.
The Trustee, as agent for the tax matters person, shall represent the
Subsidiary REMIC or the Master REMIC in connection with all examinations of
the Subsidiary REMIC's or the Master REMIC's affairs by tax authorities,
including resulting administrative and judicial proceedings. Each of the
holders of the Certificates, by acceptance thereof, agrees to cooperate with
the Trustee in such matters and to do or refrain from doing any or all things
reasonably required by the Trustee to conduct such proceedings, provided that
no such action shall be
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required by the Trustee of any Certificateholder that would entail unnecessary
or unreasonable expenses for such Certificateholder in the performance of such
action.
The Class R Certificateholders shall pay, on behalf of the
Subsidiary REMIC or the Master REMIC, any foreign, federal, state or local
income, property, excise, sales, receipts or any other similar or related
taxes or charges which may be imposed upon the Subsidiary REMIC or the Master
REMIC as a REMIC or otherwise and shall, to the extent provided in Section
10.06, be entitled to be reimbursed out of the Certificate Account or, if such
tax or charge results from a failure by the Trustee, the Seller or the
Servicer to comply with the provisions of Section 2.04 or 3.07, the Trustee,
the Seller or such Servicer, as the case may be, shall indemnify the Class R
Certificateholders for the payment of any such tax or charge. The Trustee
shall be entitled to withhold from amounts otherwise distributable to the
Class R Certificateholders any taxes or charges payable by the Class R
Certificateholders hereunder.
In the event a Class R Certificate is transferred to a
"disqualified organization," within the meaning of Section 860E(e)(5) of the
Code, pursuant to Section 860D(a)(6)(B) of the Code the Seller shall provide
to the Internal Revenue Service and the persons specified in Sections
860E(e)(3) and (6) of the Code all information necessary for the application
of Section 860E(e) and any other applicable provision of the Code with respect
to the transfer of such Class R Certificate to such a disqualified
organization including, without limitation, a computation showing the present
value of the total anticipated excess inclusions with respect to such Class R
Certificate for periods after the transfer as defined in the REMIC Provisions.
In addition, to the extent required by the REMIC Provisions, the Seller shall,
upon the written request of persons designated in Section 860E(e)(3) of the
Code, furnish to such requesting party and the Internal Revenue Service
information sufficient to compute the present value of anticipated excess
inclusions within 60 days of the receipt of such written request.
SECTION 6.07. Reports to the Commission.
The Trustee shall, on behalf of the Trust, cause to be filed
with the Securities and Exchange Commission (the "Commission") on Form 8-K
(including XXXXX filings) the Monthly Report in the form of Exhibit N hereto,
those periodic reports required to be filed under the provisions of the
Exchange Act, and any other required information specified in writing by the
Depositor with respect to (i) the rules and regulations of the Commission
thereunder, and (ii) any periodic reports required to be filed under any
subsequent amendments to the provisions of the Exchange Act, and the rules and
regulations of the Commission thereunder. Upon the request of the Trustee,
each of the Seller, the Servicer and the Depositor shall cooperate with the
Trustee in the preparation of any such report and shall provide to the Trustee
(in an electronic format acceptable to the Trustee) in a timely manner all
such information or documentation as is in the possession of such Person and
that the Trustee may reasonably request in connection with the performance of
its duties and obligations under this Section.
The Trustee shall file with the Commission a Form 15 with
respect to the Trust as soon as practicable following the first date on which
the conditions to filing thereof have been satisfied but in no event later
than January 30, 2003. Following the filing of such Form 15, the Trustee will
submit a certificate addressed to an officer of the Depositor certifying that
the filings described in clause (a) above under the Exchange Act have been
made and shall attach a copy of
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acceptance slips for such filings. The Trustee shall have no responsibility to
file with the Commission any items other than those specified in this Section
6.07.
ARTICLE VII
SERVICE TRANSFER
SECTION 7.01. Event of Termination.
"Event of Termination" means the occurrence of any of the
following:
(a) (1) The failure by the Servicer to make by the Business
Day preceding the related Distribution Date any required Monthly Advance
(other than a Nonrecoverable Advance); or (2) any other failure by the
Servicer to deposit in the Certificate Account any deposit required to be made
under the terms of this Agreement which continues unremedied for a period of
two Business Days after the date upon which written notice of such failure
shall have been given to the Servicer by the Trustee or to the Servicer and
the Trustee by any holders of Regular Certificates evidencing an aggregate
undivided interest in the Trust of a Percentage Interest of at least 25%;
(b) Failure on the Servicer's part to observe or perform in
any material respect any covenant or agreement in this Agreement (other than a
covenant or agreement which is elsewhere in this Section specifically dealt
with) which continues unremedied for 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given to the Servicer by the Trustee or to the Servicer and the Trustee by any
holders of Regular Certificates evidencing an aggregate interest in the Trust
of a Percentage Interest of at least 25%;
(c) Any failure on the part of the Servicer to make any
required servicing advance, which failure continues unremedied for a period of
30 days after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Servicer by the Trustee,
upon the Trustee receiving actual knowledge of such failure, or to the
Servicer and the Trustee by any holders of Regular Certificates evidencing an
aggregate interest in the Trust of a Percentage Interest of at least 25%
(d) A court or other governmental authority having
jurisdiction in the premises shall have entered a decree or order for relief
in respect of the Servicer in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Servicer, as the case may be, or for any
substantial liquidation of its affairs, and such order remains undischarged
and unstayed for at least 60 days;
(e) The Servicer shall have commenced a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall have consented to the entry of an order for relief in an
involuntary case under any such law, or shall have consented to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian or sequestrator (or other similar official) of the Servicer
or for any substantial part of its property, or shall have made any general
assignment for the benefit of its creditors, or shall have failed to,
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or admitted in writing its inability to, pay its debts as they become due, or
shall have taken any corporate action in furtherance of the foregoing;
(f) So long as the Seller is an affiliate of the Servicer,
any failure of the Seller, to repurchase, or substitute an Eligible Substitute
Contract for, any Contract as required by Sections 3.06;
(g) The Average Sixty-Day Delinquency Ratio exceeds 7.0%;
(h) The Current Realized Loss Ratio exceeds 5.0%; or
(i) The Cumulative Realized Loss Ratio exceeds 15%.
SECTION 7.02. Transfer.
If an Event of Termination has occurred and is continuing,
either the Trustee or Certificateholders with aggregate Percentage Interests
representing 51% or more of the Trust, by notice in writing to the Servicer
(and to the Trustee if given by the Certificateholders) may terminate all (but
not less than all) of the Servicer's management, administrative, servicing and
collection functions (such termination being herein called a "Service
Transfer"). On receipt of such notice (or, if later, on a date designated
therein), or upon resignation of the Servicer in accordance with Section
12.01, all authority and power of the Servicer under this Agreement, whether
with respect to the Contracts, the Contract Files, the Land-and-Home Contract
Files or otherwise (except with respect to the Certificate Account, the
transfer of which shall be governed by Section 7.06), shall pass to and be
vested in the Backup Servicer pursuant to and under this Section 7.02; and,
without limitation, the Backup Servicer is authorized and empowered to execute
and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments (including, without limitation,
documents required to make the Backup Servicer or any successor servicer the
sole lienholder or legal title holder of record of each Manufactured Home) and
to do any and all acts or things necessary or appropriate to effect the
purposes of such notice of termination. Each of the Seller and the Servicer
agrees to cooperate with the Backup Servicer in effecting the termination of
the responsibilities and rights of the Servicer hereunder, including, without
limitation, the transfer to the Backup Servicer for administration by it of
all cash amounts which shall at the time be held by the Servicer for deposit,
or have been deposited by the Servicer, in the Certificate Account, or for its
own account in connection with its services hereafter or thereafter received
with respect to the Contracts and the execution of any documents required to
make the Backup Servicer or a successor servicer the sole lienholder or legal
title holder of record in respect of each Manufactured Home. The Servicer
shall be entitled to receive any other amounts which are payable to the
Servicer under the Agreement, at the time of the termination of its activities
as Servicer. The Servicer shall transfer to the new servicer (i) the
Servicer's records relating to the Contracts in such electronic form as the
new servicer may reasonably request and (ii) any Contracts, Contract Files and
Land-and-Home Contract Files in the Servicer's possession. Any and all costs
and expenses incurred by the Backup Servicer in connection with the transfer
of servicing functions as provided herein, including, without limitation, the
cost of delivering the Contracts and related files to the Backup Servicer,
shall be paid by the initial Servicer within 10 days following invoice
therefor, and to the extent not paid in a timely manner, the Backup
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Servicer may reimburse itself for such costs and expenses from the Certificate
Account. The Backup Servicer shall not be liable to and shall be held harmless
by the Trust, the Certificateholders, the Seller, the Depositor and the
initial Servicer for any and all claims arising from or related to (i) any
missing of lost Contracts, Contract Files or related documents or (ii) any
inaccurate, incomplete or missing information reasonably necessary for the
servicing of the Contracts, which is not the direct result of the willful
misfeasance or negligence of the Backup Servicer.
SECTION 7.03. Backup Servicer to Act, Appointment of
Successor.
On and after the time the Servicer receives a notice of
termination pursuant to Section 7.02 or the resignation of the Servicer in
accordance with Section 12.01, the Backup Servicer , upon two (2) Business
Days' written notice from the Trustee of such Service Transfer to the Backup
Servicer, shall be the successor in all respects to the servicing rights,
duties and responsibilities of the Servicer (in its capacity as servicer under
this Agreement) which arise after the effective date of such Service Transfer
and the Servicer (except as provided herein) shall be relieved of such
responsibilities, duties and liabilities arising after such Service Transfer;
provided, however, that (i) the Backup Servicer will not assume any
obligations of the Seller pursuant to Section 3.06, and (ii) the Backup
Servicer shall not be liable for any acts or omissions of the initial or any
prior Servicer accruing prior to such Service Transfer or for any breach or
default by the initial or any prior Servicer of any of its obligations
contained herein or in any related document or agreement, and (iii) the
initial or any prior Servicer shall remain liable for any acts or omissions of
such initial or prior Servicer occurring prior to such Service Transfer or for
any breach by the Servicer of any of its obligations contained herein or in
any related document or agreement. As compensation therefor, the Backup
Servicer shall be entitled to receive the Monthly Servicing Fee. Furthermore,
the Backup Servicer shall be entitled to all rights of the Servicer in
connection with its responsibilities under this Agreement, including
reimbursement rights for advances as provided herein. If the Backup Servicer
is legally unable so to act, the Trustee may appoint, or petition a court of
competent jurisdiction to appoint, an Eligible Servicer as the successor to
the Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer hereunder. Pending
appointment of a successor to the Servicer hereunder, the Servicer shall act
in such capacity until a successor servicer assumes such responsibilities,
duties or liabilities. In connection with such appointment and assumption, the
Backup Servicer may make such arrangements for the compensation of such
successor out of payments on Contracts as it and such successor shall agree;
provided, however, that no such monthly compensation shall, without the
written consent of 100% of the Certificateholders, exceed the Monthly
Servicing Fee. The Trustee and the Backup Servicer and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession as provided herein. The Backup Servicer shall
be entitled to rely upon the representations, warranties and covenants made by
the Seller and the initial Servicer set forth in this Agreement and any
related document, and the Backup Servicer shall be held harmless by the Trust,
the Certificateholders, the Seller and the initial Servicer, for any and all
claims, liabilities, obligations, losses damages, payments costs or expenses
(including reasonable attorneys' fees) of any kind whatsoever arising from or
related to any breach, inaccuracy, default or nonperformance of such
representations, warranties or covenants of the Seller or the initial Servicer
as set forth herein.
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SECTION 7.04. Notification to Certificateholders.
(a) Promptly following the occurrence of any Event of
Termination, the Servicer shall give written notice thereof to the Trustee,
the Backup Servicer, the Rating Agencies and the Certificateholders at their
respective addresses appearing on the Certificate Register.
(b) Within ten days following any termination or appointment
of a successor to the Servicer pursuant to this Article VII, the Trustee shall
give written notice thereof to the Rating Agencies and the Certificateholders
at their respective addresses appearing on the Certificate Register.
(c) The Trustee shall give written notice to the Rating
Agencies prior to the date upon which any Eligible Servicer (other than the
Trustee) is to assume the responsibilities of Servicer pursuant to Section
7.03, naming such successor Servicer.
SECTION 7.05. Effect of Transfer.
(a) After the Service Transfer, the Backup Servicer or new
Servicer may notify Obligors to make payments directly to the new Servicer
that are due under the Contracts after the effective date of the Service
Transfer.
(b) After the Service Transfer, the replaced Servicer shall
have no further obligations with respect to the management, administration,
servicing or collection of the Contracts and the Backup Servicer shall have
all of such obligations except as provided herein and the replaced Servicer
will transmit or cause to be transmitted directly to the Backup Servicer for
its own account, promptly on receipt and in the same form in which received,
any amounts (properly endorsed where required for the Backup Servicer to
collect them) received as payments upon or otherwise in connection with the
Contracts.
(c) A Service Transfer shall not affect the rights and
duties of the parties hereunder (including but not limited to the indemnities
of the Servicer and the Seller pursuant to Article X and Sections 3.06, 11.05
and 11.11(5)) other than those relating to the management, administration,
servicing or collection of the Contracts following the effective Service
Transfer. Upon and following a Servicer Transfer, the initial Servicer shall
have no further rights to the Monthly Servicing Fee, other than any accrued
and unpaid Monthly Servicing Fee due to the initial Servicer as of such date.
SECTION 7.06. Transfer of Certificate Account.
Notwithstanding the provisions of Section 7.02, if the
Certificate Account shall be maintained with the Servicer and an Event of
Termination shall occur and be continuing, the Servicer shall, after five
days' written notice from the Trustee, or in any event within ten days after
the occurrence of the Event of Termination, establish an Eligible Account with
an institution other than the Servicer and promptly transfer all funds in the
Certificate Account to such new account, which shall thereafter be deemed the
Certificate Account for the purposes hereof. Upon a Service Transfer, the
Certificate Account shall be transferred to an Eligible Account as directed by
the successor Servicer.
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ARTICLE VIII
PAYMENTS
SECTION 8.01. Monthly Payments.
(a) Subject to the terms of this Article VIII, each Holder
of a Certificate as of a Record Date shall be paid the sum equal to such
Certificateholder's Percentage Interest of all amounts distributed on the
applicable Class of Certificates on the next succeeding Distribution Date by
check mailed on such Distribution Date to such Certificateholder at the
address for such Certificateholder appearing on the Certificate Register (or
by wire transfer pursuant to instructions delivered to the Trustee at least
ten days prior to such Distribution Date),. Final payment of any Certificate
shall be made only upon presentation of such Certificate at the office or
agency of the Paying Agent.
(b) Each distribution with respect to a Book-Entry
Certificate shall be paid to the Depository, which shall credit the amount of
such distribution to the accounts of its Depository Participants in accordance
with its normal procedures. Each Depository Participant shall be responsible
for disbursing such distribution to the Certificate Owners that it represents
and to each indirect participating brokerage firm (a "brokerage firm" or
"indirect participating firm") for which it acts as agent. Each brokerage firm
shall be responsible for disbursing funds to the Certificate Owners that it
represents. All such credits and disbursements with respect to a Book-Entry
Certificate are to be made by the Depository and the Depository Participants
in accordance with the provisions of the Book Entry Certificates. Neither the
Trustee, the Certificate Registrar, the Seller nor the Servicer shall have any
responsibility therefor except as otherwise provided by applicable law. To the
extent applicable and not contrary to the rules of the Depository, the Trustee
shall comply with the provisions of the forms of the Class A, Class M, and
Class B Certificates as set forth in Exhibits A, B and C hereto.
(c) The Trustee shall either act as the paying agent or
shall appoint an institution meeting the eligibility requirements set forth in
Section 11.06 to be the paying agent (in either case, the "Paying Agent") and
cause it to make the payments to the Certificateholders required hereunder.
The Paying Agent shall initially be located at the Trustee's Corporate Trust
Office at 0000 Xxxxxxx Xxxxxxx, Xxxxx 0X, XX0-0000, Xxxxxxxx, XX 00000, Attn:
Corporate Trust Services, shall initially act as Paying Agent. The Trustee
shall require the Paying Agent (if other than the Trustee) to agree in writing
that all amounts held by the Paying Agent for payment hereunder will be held
in trust for the benefit of the Certificateholders and that it will notify the
Trustee of any failure by the Servicer to make funds available to the Paying
Agent for the payment of amounts due on the Certificates.
SECTION 8.02. Permitted Withdrawals from the Certificate
Account.
The Servicer may, from time to time as provided herein, make
withdrawals from the Certificate Account of amounts deposited in said account
pursuant to Section 5.05 that are attributable to the Contracts for the
following purposes:
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(a) to remit the Amount Available to the Trustee for deposit
in the Distribution Account to make payments in the amounts and in the manner
provided for in Section 8.03;
(b) to pay to the Seller with respect to each Contract or
property acquired in respect thereof that has been repurchased or replaced
pursuant to Section 3.06, all amounts received thereon and not required to be
distributed to Certificateholders as of the date on which the related
Principal Balance or Repurchase Price is determined;
(c) to reimburse the Servicer out of Liquidation Proceeds
for Liquidation Expenses incurred by it, to the extent such reimbursement is
permitted pursuant to Section 5.08;
(d) to withdraw any amount deposited in the Certificate
Account that was not required to be deposited therein;
(e) to make any rebates or adjustments deemed necessary by
the Servicer pursuant to Section 5.06(d); or
(f) to reimburse the Servicer (1) if Origen is no longer the
Servicer, for any accrued unpaid Monthly Servicing Fees and (2) for
unreimbursed Monthly Advances, including Nonrecoverable Advances, to the
extent not otherwise retained. The Servicer's right to reimbursement for
unpaid Servicing Fees shall be limited to late collections on the related
Contract, including Liquidation Proceeds, Insurance Proceeds and such other
amounts as may be collected by the Servicer from the related Obligor or
otherwise relating to the Contract in respect of which such reimbursed amounts
are owed. Except with respect to Nonrecoverable Advances, the Servicer's right
to reimbursement for unreimbursed Monthly Advances shall be limited to late
collections of interest on any Contract and to Liquidation Proceeds and
Insurance Proceeds on related Obligors.
Since, in connection with withdrawals pursuant to clause
(b), the Seller's entitlement thereto is limited to collections or other
recoveries on the related Contract, the Servicer shall keep and maintain
separate accounting, on a Contract by Contract basis, for the purpose of
justifying any withdrawal from the Certificate Account pursuant to such
clause.
One Business Day before each Distribution Date, no later
than 1:00 p.m. New York time, the Servicer will remit to the Trustee for
deposit into the Distribution Account the Amount Available.
SECTION 8.03. Payments.
(a) On each Distribution Date the Trustee shall withdraw
from the Distribution Account the Amount Available (as determined by the
Servicer on the immediately preceding Determination Date) and apply such funds
to make payment in the following order of priority, subject to Section
8.03(b):
1. to the Trustee, the Trustee Fee for such
Distribution Date;
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2. (a) if Origen is not the Servicer, to the Servicer,
the Monthly Servicing Fee (to the extent not withdrawn
from the Certificate Account pursuant to Section 8.02)
and any other compensation owed to the Servicer
pursuant to Section 7.03 and (b) to the Backup
Servicer, the Backup Servicing Fee, if any, and any
other compensation owed to the Backup Servicer pursuant
to Section 7.03;
3. to the Class A Certificateholders as follows:
(i) concurrently, the amount in clause (a)(i) of the
definition of Class A Formula Distribution Amount
to the Class A-1 Certificateholders; the amount in
clause (a)(ii) to the Class A-2
Certificateholders; the amount in clause (a)(iii)
to the Class A-3 Certificateholders; the amount in
clause (a)(iv) to the Class A-4
Certificateholders; or, if the available amount is
less than the sum of the amounts specified in this
clause (i), pro rata to each Class of Class A
Certificates based on the amount of interest
payable pursuant to this clause;
(ii) concurrently, the aggregate Unpaid Class A
Interest Shortfall pro rata to each Class of Class
A Certificates based on the Unpaid Class A
Interest Shortfall of each such Class;
4. to the Class M-1 Certificateholders as follows:
(i) the amount in clause (a) of the definition of
Class M-1 Formula Distribution Amount;
(ii) any Unpaid Class M-1 Interest Shortfall;
5. to the Class M-2 Certificateholders as follows:
(i) the amount in clause (a) of the definition of
Class M-2 Formula Distribution Amount;
(ii) any Unpaid Class M-2 Interest Shortfall;
6. to the Class B-1 Certificateholders as follows:
(i) the amount in clause (a) of the definition of
Class B-1 Formula Distribution Amount;
(ii) any Unpaid Class B-1 Interest Shortfall;
7. to the Class A Certificateholders as follows:
(i) if there is a Class A Principal Deficiency Amount
as of such Distribution Date, the remaining Amount
Available, concurrently
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to each Class of Class A
Certificates pro rata based on the related Class
Principal Balance (but in no event shall such
amount exceed the related Class Principal
Balance);
(ii) concurrently, the Unpaid Class A Principal
Shortfall to the Class A-1, Class A-2, Class A-3
and Class A-4 Certificateholders, pro rata to each
Class of Class A Certificates based on the related
Class Principal Balance (but in no event shall
such amount exceed the related Class Principal
Balance);
(iii) if such Distribution Date is on or prior to the
Class A-4 Cross-Over Date, the Class A Percentage
of the Formula Principal Distribution Amount to
the Class A Certificateholders sequentially as
follows:
(a) to the Class A-1 Certificateholders, until
the Class Principal Balance of the Class A-1
Certificates has been reduced to zero;
(b) to the Class A-2 Certificateholders, until
the Class Principal Balance of the Class A-2
Certificates has been reduced to zero;
(c) to the Class A-3 Certificateholders, until
the Class Principal Balance of the Class A-3
Certificates has been reduced to zero;
(d) to the Class A-4 Certificateholders, until
the Class Principal Balance of the Class A-4
Certificates has been reduced to zero;
8. to the Class M-1 Certificateholders as follows:
(i) any Unpaid Class M-1 Principal Shortfall;
(ii) the Class M-1 Percentage of the Formula Principal
Distribution Amount (plus, if such Distribution
Date is on the Class A-4 Cross-Over Date, the
amount by which the Class A Percentage of the
Formula Principal Distribution Amount exceeds the
Class A Principal Balance on such date), but in no
event more than the Class M-1 Principal Balance;
(iii) any Class M-1 Liquidation Loss Interest Amount;
(iv) any Unpaid Class M-1 Liquidation Loss Interest
Shortfall;
9. to the Class M-2 Certificateholders as follows:
(i) any Unpaid Class M-2 Principal Shortfall;
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(ii) the Class M-2 Percentage of the Formula Principal
Distribution Amount (plus, if such Distribution
Date is on the Class M-1 Cross-Over Date, the
amount, if any, by which the sum of the Class A
Percentage and the Class M-1 Percentage of the
Formula Principal Distribution Amount exceeds the
sum of the Class A and Class M-1 Principal
Balances on such date), but in no event more than
the Class M-2 Principal Balance;
(iii) any Class M-2 Liquidation Loss Interest Amount;
(iv) any Unpaid Class M-2 Liquidation Loss Interest
Shortfall;
10. to the Class B-1 Certificateholders as follows:
(i) any Unpaid Class B-1 Principal Shortfall;
(ii) the Class B Percentage of the Formula Principal
Distribution Amount (plus, if such Distribution
Date is on the Class M-2 Cross-Over Date, the
amount, if any, by which the sum of the Class A,
Class M-1 and Class M-2 Percentages of the Formula
Principal Distribution Amount exceeds the sum of
the Class A, Class M-1 and Class M-2 Principal
Balances on such date), but in no event more than
the Class B-1 Principal Balance;
(iii) any Class B-1 Liquidation Loss Interest Amount;
(iv) any Unpaid Class B-1 Liquidation Loss Interest
Shortfall;
11. if Origen is the Servicer, the Monthly Servicing
Fee to the Servicer plus any accrued but unpaid
Servicing Fee for prior Distribution Dates;
12. to the Holders of Offered Certificates any
Additional Principal Distribution Amount, in the order
of priority described in clauses (7), (8), (9) and (10)
above.
13. on each Additional Principal Payment Date (as
defined in Section 8.05(f)), first, concurrently to the
Class M-1, Class M-2 and Class B-1 Certificateholders
any Distributable Excess Spread, pro rata based upon
the Class Principal Balance of each Class (after giving
effect to distributions on principal on that date),
until each such Class' respective Class Principal
Balances are reduced to zero and then concurrently to
the Class A Certificateholders then outstanding any
Distributable Excess Spread, pro rata based upon the
Class Principal Balance of each Class (after giving
effect to distributions of principal on that date)
until each such Class' respective Class Principal
Balances are reduced to zero;
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14. to the Servicer and the Backup Servicer, amounts in
respect of indemnification or other amounts to which it
is entitled under this Agreement, including under
Section 10.08;
15. the Class X Distribution Amount to the Class X
Certificateholders; and
16. any remaining funds to the Class R
Certificateholders.
(b) On any Distribution Date on which the aggregate Class A
Principal Balance is greater than the Pool Principal Balance for such
Distribution Date, any distribution of the Formula Principal Distribution
Amount pursuant to Section 8.03(a)(7)(iii) above shall be distributed
concurrently to each class of Class A Certificates pro rata based upon the
Class Principal Balance of the Class A Certificates.
(c) If the applicable Monthly Report indicates a Class M-1
Interest Deficiency Amount, a Class M-2 Interest Deficiency Amount and/or a
Class B-1 Interest Deficiency Amount for such Distribution Date, the Trustee
shall withdraw from the Certificate Account (to the extent of funds on deposit
therein one Business Day prior to such Distribution Date, after distribution
of the Amount Available pursuant to Section 8.03(a)) an amount equal to the
Class M-1 Interest Deficiency Amount, the Class M-2 Interest Deficiency Amount
and the Class B-1 Interest Deficiency Amount (or the amount of such funds in
the Certificate Account, if less) and distribute such amount, first to the
Class M-1 Certificateholders up to the amount of the Class M-1 Interest
Deficiency Amount, if any, then to the Class M-2 Certificateholders up to the
amount of the Class M-2 Interest Deficiency Amount, if any, and then to the
Class B-1 Certificateholders up to the amount of the Class B-1 Interest
Deficiency Amount; provided, however, that (i) no such withdrawal shall be
made with respect to the Class M-1 Interest Deficiency Amount if the
Cumulative Realized Losses as of such Distribution Date are greater than
$24,975,000; (ii) no such withdrawal shall be made with respect to the Class
M-2 Interest Deficiency Amount if the Cumulative Realized Losses as of such
Distribution Date are greater than $14,175,000; (iii) no withdrawal with
respect to Class B-1 Interest Deficiency Amount shall be made if the
Cumulative Realized Losses as of such Distribution Date are greater than
$9,450,000; (iv) no withdrawal with respect to a Class M-1 Interest Deficiency
Amount shall be made if the aggregate withdrawals with respect to all prior
Class M-1 Interest Deficiency Amounts equal $677,312; (v) no withdrawal with
respect to a Class M-2 Interest Deficiency Amount shall be made if the
aggregate withdrawals with respect to all prior Class M-2 Interest Deficiency
Amounts equal $716,850; and (vi) no withdrawal with respect to a Class B-1
Interest Deficiency Amount shall be made if the aggregate withdrawals with
respect to all prior Class B-1 Interest Deficiency Amounts equal $721,406.
SECTION 8.04. Monthly Advances.
(a) By the close of business on the day prior to each
Distribution Date, the Servicer shall cause to be deposited, out of its own
funds, in the Distribution Account the Monthly Advance for the related
Distribution Date.
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(b) The Servicer shall reimburse itself for the Outstanding
Amount Advanced out of collections of delinquent payments of principal and
interest or other recoveries on Contracts as to which the Servicer previously
made a Monthly Advance or servicing advance.
(c) In addition, if the Servicer determines that any advance
made by the Servicer has become a Nonrecoverable Advance and at the time of
such determination there exists an Outstanding Amount Advanced, then the
Servicer shall reimburse itself out of funds in the Certificate Account for
the amount of such Nonrecoverable Advance for the next succeeding Distribution
Date by withdrawing such amount pursuant to Section 8.02(f), but not in excess
of such Outstanding Amount Advanced. If a Contract becomes a liquidated
Contract and at such time there exists an Outstanding Amount Advanced, then
the Servicer shall reimburse itself out of funds in the Certificate Account
for the servicing advances related thereto and the portion of Monthly Advances
equal to the aggregate of the interest component of delinquent Scheduled
Payments on such Contract to the date in the Due Period in which such Contract
became a Liquidated Contract, but not in excess of such Outstanding Amount
Advanced. Notwithstanding any other provision of this Agreement, under no
circumstances shall the Servicer be required to make any advance that the
Servicer determines if made would be a Nonrecoverable Advance.
SECTION 8.05. The Servicer's Purchase Option; Auction Sale;
Additional Principal Distribution Amount.
(a) Subject to the conditions in subsection (b) below, the
Servicer shall have the option to purchase all of the Contracts and all
property acquired in respect of any Contract remaining in the Trust at a price
(such price being referred to as the "Minimum Purchase Price") equal to the
greater of:
A. the sum of (x) 100% of the Principal Balance of
each Contract (other than any Contract as to which
title to the underlying property has been acquired
and whose fair market value is included pursuant
to clause (y) below), plus (y) the fair market
value of such acquired property (as determined by
the Servicer of the close of business on the third
Business Day next preceding the date upon which
notice of any such termination is furnished to
Certificateholders pursuant to Section 12.03) or
B. the aggregate fair market value (as determined by
the Servicer as of the close of business on such
third Business Day) of all of the assets of the
Trust,
plus, in either case, any outstanding amounts owed to the Trustee, any Unpaid
Class A Interest Shortfall, any Unpaid Class M-1 Interest Shortfall, any
Unpaid Class M-1 Liquidation Loss Interest Shortfall, any Unpaid Class M-2
Interest Shortfall, any Unpaid Class M-2 Liquidation Loss Interest Shortfall,
any Unpaid Class B-1 Interest Shortfall and any Unpaid Class B-1 Liquidation
Loss Interest Shortfall.
(b) The purchase by the Servicer of all of the Contracts
pursuant to Section 8.05(a) above shall be at the option of the Servicer, but
shall be conditioned upon (1) the
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Pool Principal Balance, at the time of any such purchase, aggregating not more
than 10% of the Cut-off Date Pool Principal Balance, (2) such purchase being
made pursuant to a plan of complete liquidation of each of the Subsidiary
REMIC and the Master REMIC in accordance with Section 860F of the Code, as
provided in Section 12.03, and (3) the Servicer having provided the Trustee
and the Depository (if any) with at least 30 days' written notice. If such
option is exercised, the Servicer, shall provide to the Trustee the
certification required by Section 12.03, which certificate shall constitute a
plan of complete liquidation of each of the Subsidiary REMIC and the Master
REMIC within the meaning of Section 860F of the Code, and the Trustee shall
promptly sign such certification and release to the Servicer, the Contract
Files and Land-and-Home Contract Files pertaining to the Contracts being
repurchased.
(c) Reserved
(d) The Servicer shall notify the Trustee no later than two
Business Days after the Determination Date following the first Due Period
which includes the date on which the Pool Principal Balance first becomes less
than or equal to 10% of the Cut-off Date Pool Principal Balance, to the effect
that the Pool Principal Balance is then less than or equal to 10% of the
Cut-off Date Pool Principal Balance.
(e) If the Servicer has not delivered to the Trustee the
notice of exercise of its purchase option described in subsection (b) by the
Distribution Date occurring in the month following the Determination Date
specified in subsection (d), then promptly after the following Distribution
Date the Trustee shall begin a process for soliciting bids in connection with
an auction for the Contracts. The Trustee shall provide the Servicer written
notice of such auction at least 10 Business Days prior to the date bids must
be received in such auction (the "Auction Date").
If at least three bids are received, the Trustee shall
solicit and resolicit new bids from all participating bidders until only one
bid remains or the remaining bidders decline to resubmit bids. The Trustee
shall accept the highest of such remaining bids if it is equal to or in excess
of the greater of (i) the Minimum Purchase Price and (ii) the fair market
value of the Contracts and related property (such amount being referred to as
the "Minimum Auction Price"). If less than three bids are received or the
highest bid after the resolicitation process is completed is not equal to or
in excess of the Minimum Auction Price, the Trustee shall not consummate such
sale. If at least three bids are not received, the Seller, at the Trustee's
request, shall supply the Trustee with the names of parties from whom to
solicit such bids; provided, that the Trustee shall not be responsible if less
than three or no bidders submit bids for the Contracts and the other trust
assets. If a bid meeting the Minimum Purchase Price is received, then the
Trustee may, and if so requested by the Servicer shall, at the expense of the
Trust, consult with a financial advisor, which may be an underwriter of the
Certificates, to determine if the fair market value of the Contracts and
related property has been offered. The Trustee may hire an agent at the
expense of the Trust to conduct such Auction.
If the first auction conducted by the Trustee does not
produce any bid at least equal to the Minimum Auction Price, then the Trustee
shall, beginning on the Distribution Date occurring approximately three months
after the Auction Date for the failed first auction, commence another auction
in accordance with the requirement of this subsection (e). If such
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second auction does not produce any bid at least equal to the Minimum Auction
Price, then the Trustee shall, beginning on the Distribution Date occurring
approximately three months after the Auction Date for the failed second
auction, commence another auction in accordance with the requirements of this
subsection (e), and shall continue to conduct similar auctions approximately
every three months thereafter until the earliest of (i) delivery by the
Servicer of notice of exercise of its purchase option under subsection (a),
(ii) receipt by the Trustee of a bid meeting the conditions specified in the
preceding paragraph, or (iii) the Distribution Date on which the principal
balance of all the Contracts is reduced to zero.
If the Trustee receives a bid meeting the conditions
specified in this subsection (e), then the Trustee's written acceptance of
such bid shall constitute a plan of complete liquidation within the meaning of
Section 860F of the Code, and the Trustee shall release to the winning bidder,
upon payment of the bid purchase price, the Contract Files pertaining to the
Contracts being purchased.
(f) If the Servicer has not delivered to the Trustee the notice of exercise of
its purchase option described in subsection (b) by the Distribution Date
occurring in the month following the Determination Date specified in
subsection (d), then on the following Distribution Date and each Distribution
Date thereafter (each, an "Additional Principal Payment Date") the Class M-1,
Class M-2 and Class B-1 Certificates shall be entitled to receive the
Distributable Excess Spread, allocated among such classes pro rata based upon
the outstanding Principal Balance of each such Class on each such Distribution
Date until each such Principal Balance is reduced to zero and thereafter the
Class A Certificates then outstanding shall be entitled to receive the
Distributable Excess Spread, allocated among such classes pro rata based upon
the outstanding Class Principal Balance of each such Class on each such
Distribution Date until each such Principal Balance is reduced to zero.
SECTION 8.06. Trustee Reimbursement Account.
On or before the Closing Date, the Trustee shall establish
the Trustee Reimbursement Account, which must be an Eligible Account. The
Trustee Reimbursement Account shall be entitled "Trustee Reimbursement
Account, Bank One, National Association." The Trustee Reimbursement Account
will not be a part of the Trust or any REMIC created hereunder. The
Certificateholders and the Depositor shall have no rights to the amounts on
deposit in the Trustee Reimbursement Account.
On the Closing Date, the Seller shall deposit $50,000 to the
Trustee Reimbursement Account. The amounts on deposit in the Trustee
Reimbursement Account shall, upon direction from the Seller, be invested in
Eligible Investments and any income realized on those amounts shall be payable
to the Seller and the Seller shall reimburse the Trustee Reimbursement Account
for any losses incurred on such investments. If the Seller fails to give
direction to the Trustee, the Trustee shall invest such amounts pursuant to
clause (viii) of the definition of "Eligible Investments." Upon termination of
the Trust, any amounts remaining in the Trustee Reimbursement Account, to the
extent not otherwise required to reimburse the Trustee for amounts due and
owing to it hereunder, shall be paid to the Seller.
SECTION 8.07. The Distribution Account.
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(a) On or before the Closing Date, the Trustee shall
establish the Distribution Account on behalf of the Trust, which must be an
Eligible Account. The Distribution Account shall be entitled "Distribution
Account, Bank One, National Association as Trustee for the benefit of holders
of Origen Manufactured Housing Contract Senior/Subordinated Asset-Backed
Certificates, Series 2002-A".
(b) Withdrawals from the Distribution Account shall be made
on the Distribution Date for the purpose of making the payments described in
Section 8.03(a). Funds in the Distribution Account shall remain uninvested.
(c) If at any time the Trustee receives notice (from S&P,
Xxxxx'x or the Servicer or otherwise) that the Distribution Account has ceased
to be an Eligible Account, the Trustee must, as soon as practicable but in no
event later than 5 Business Days of the Trustee's receipt of such notice,
transfer the Distribution Account and all funds therein to an Eligible
Account. Following any such transfer, the Trustee must notify each of S&P,
Xxxxx'x and the Servicer of the location of the Distribution Account.
ARTICLE IX
THE CERTIFICATES
SECTION 9.01. The Certificates.
(a) The Class A, the Class M, the Class B, the Class X and
the Class R Certificates shall be substantially in the forms set forth in
Xxxxxxxx X, X, X-0, X-0, and C-3, respectively, and shall, on original issue,
be executed by the Trustee on behalf of the Trust to or upon the order of the
Seller. The Class A, the Class M, and the Class B Certificates shall be
evidenced by (i) one or more Class A-1 Certificates representing $35,243,000
initial aggregate principal balance, (ii) one or more Class A-2 Certificates
representing $24,362,000 initial aggregate principal balance, (iii) one or
more Class A-3 Certificates representing $14,300,000 initial aggregate
principal balance, (iv) one or more Class A-4 Certificates representing
$23,295,000 initial aggregate principal balance, (v) one or more Class M-1
Certificates representing $11,475,000 initial aggregate principal balance,
(vi) one or more Class M-2 Certificates representing $10,800,000 initial
aggregate principal balance and (vii) one or more Class B-1 Certificates
representing $10,125,000 initial aggregate principal balance, beneficial
ownership of such Classes of Certificates to be held through Book-Entry
Certificates in minimum dollar denominations of $1,000 and integral dollar
multiples of $1 in excess thereof. The Class X, and Class R Certificates shall
be issuable in minimum Percentage Interests of 10% and increments of 1% in
excess thereof.
(b) The Certificates shall be executed on behalf of the
Trust by manual or facsimile signature on behalf of the Trustee by a
Responsible Officer. 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 Trustee shall bind the Trust,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Certificates or
did not hold such offices at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement or be valid for any
purpose,
79
unless such Certificate shall have been manually authenticated by an
authorized officer of the Trustee substantially in the form provided for
herein, and such authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication. Subject to Section 9.02(c), the Regular
Certificates shall be Book-Entry Certificates. The Class R Certificates shall
not be Book-Entry Certificates.
The Trustee on behalf of the Trust shall cause to be
executed, authenticated and delivered on the Closing Date to or upon the order
of the Depositor, in exchange for the Mortgage Loans, concurrently with the
sale, assignment and conveyance to the Trustee of the Mortgage Loans, each
Class of Regular Certificates in authorized denominations and the Class R
Certificates, together evidencing the ownership of the entire Trust.
SECTION 9.02. Registration of Transfer and Exchange of
Certificates.
(a) The Certificate Registrar shall cause to be kept at the
Corporate Trust Office a Certificate Register in which, subject to such
reasonable regulations as it may prescribe, the Certificate Registrar shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Trustee shall initially serve as
Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any
Certificate at any office or agency of the Certificate Registrar maintained
for such purpose pursuant to the foregoing paragraph and, in the case of a
Class R Certificate, upon satisfaction of the conditions set forth below, the
Trustee on behalf of the Trust shall execute, authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Certificates
of the same aggregate Percentage Interest.
(b) Except as provided in paragraph (c) below, the
Book-Entry Certificates shall at all times remain registered in the name of
the Depository or its nominee and at all times: (i) registration of such
Certificates may not be transferred by the Trustee except to another
Depository or its nominee; (ii) the Depository shall maintain book-entry
records with respect to the Certificate Owners and with respect to ownership
and transfers of such Certificates; (iii) ownership and transfers of
registration of such Certificates on the books of the Depository shall be
governed by applicable rules established by the Depository; (iv) the
Depository may collect its usual and customary fees, charges and expenses from
its Depository Participants; (v) the Trustee shall deal with the Depository as
representative of the Certificate Owners of the Certificates for purposes of
exercising the rights of Holders under this Agreement, and requests and
directions for and votes of such representative shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners;
and (vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and Persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners; and (vii) the
direct and indirect participants of the Depository shall have no rights under
this Agreement under or with respect to any of the Certificates held on their
behalf by the Depository, and the Depository may be treated by the Trustee and
its agents,
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employees, officers and directors as the absolute owner of the Certificates
for all purposes whatsoever.
All transfers by Certificate Owners of Book-Entry
Certificates shall be made in accordance with the procedures established by
the Depository Participant or brokerage firm representing such Certificate
Owners. Each Depository Participant shall only transfer Book-Entry
Certificates of Certificate Owners that it represents or of brokerage firms
for which it acts as agent in accordance with the Depository's normal
procedures. The parties hereto are hereby authorized to execute a Letter of
Representations with the Depository or take such other action as may be
necessary or desirable to register a Book-Entry Certificate to the Depository.
In the event of any conflict between the terms of any such Letter of
Representation and this Agreement the terms of this Agreement shall control.
(c) If (i) (x) the Depository or the Depositor advises the
Trustee in writing that the Depository is no longer willing or able to
discharge properly its responsibilities as Depository and (y) the Trustee or
the Depositor is unable to locate a qualified successor, (ii) the Depositor,
at its sole option, with the consent of the Trustee, elects to terminate the
book-entry system through the Depository or (iii) after the occurrence of an
Event of Termination, the Certificate Owners of each Class of Regular
Certificates representing Percentage Interests aggregating not less than 51%
advises the Trustee and Depository through the Financial Intermediaries and
the Depository Participants in writing that the continuation of a book-entry
system through the Depository to the exclusion of definitive, fully registered
certificates (the "Definitive Certificates") to Certificate Owners is no
longer in the best interests of the Certificate Owners, upon surrender to the
Certificate Registrar of each Class of Regular Certificates by the Depository,
accompanied by registration instructions from the Depository for registration,
the Trustee shall, at the Depositor's expense, in the case of (ii) above, or
the Seller's expense, in the case of (i) and (iii) above, execute on behalf of
the Trust and authenticate the Definitive Certificates. Neither the Depositor
nor the Trustee shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates, the Trustee, the
Certificate Registrar, the Servicer, any Paying Agent and the Depositor shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
(d) Except with respect to the initial transfer of the Class
X and Class R Certificates (together, the "Private Certificates") by the
Depositor to the Seller (or an affiliate thereof), no transfer, sale, pledge
or other disposition of any Private Certificate shall be made unless (x)
except to the extent such transfer is made to an entity the equity of which is
owned by the Seller or an affiliate of the Seller, and (y) such disposition is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the "1933 Act"), and any applicable state securities laws or is made
in accordance with the 1933 Act and laws. In the event of any such transfer,
other than the transfer of the Tax Matters Person Residual Interest (i) unless
such transfer is made in reliance upon Rule 144A (as evidenced by the
investment letter delivered to the Trustee, in substantially the form attached
hereto as Exhibit J) under the 1933 Act, the Trustee and the Depositor shall
require a written Opinion of Counsel (which may be in-house counsel)
acceptable to and in form reasonably satisfactory to the Trustee and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act or is being
made pursuant to the 1933 Act, which Opinion
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of Counsel shall not be an expense of the Trustee or the Depositor or (ii) the
Trustee shall require the transferor to execute a transferor certificate (in
substantially the form attached hereto as Exhibit K) and the transferee to
execute an investment letter (in substantially the form attached hereto as
Exhibit J) acceptable to and in form reasonably satisfactory to the Depositor
and the Trustee certifying to the Depositor and the Trustee the facts
surrounding such transfer, which investment letter shall not be an expense of
the Trustee or the Depositor. The Holder of a Private Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee
and the Depositor against any liability that may result if the transfer is not
so exempt or is not made in accordance with such federal and state laws.
Except with respect to the initial transfer of the
ERISA-Restricted Certificates by the Depositor to the Seller (or an affiliate
thereof), no transfer of an ERISA-Restricted Certificate shall be made unless
the Trustee shall have received a representation from the transferee of such
Certificate, acceptable to and in form satisfactory to the Trustee and the
Depositor, (such requirement is satisfied by the Trustee's receipt of a
representation letter from the transferee substantially in the form of Exhibit
P hereto, as appropriate), to the effect that either (i) such transferee is
not an employee benefit plan or arrangement subject to Section 406 of ERISA or
a plan subject to Section 4975 of the Code, nor a person acting on behalf of
any such plan or arrangement or using the assets of any such plan or
arrangement to effect such transfer or (ii) in the case of an ERISA-Restricted
Certificate that has been the subject of an ERISA-Qualifying Underwriting,
other than a Class R Certificate, the purchaser is an insurance company which
is purchasing such Certificates with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Certificates are covered under Sections I and III of PTCE
95-60 or (iii) in the case of any such ERISA-Restricted Certificate presented
for registration in the name of an employee benefit plan subject to ERISA or a
plan or arrangement subject to Section 4975 of the Code (or comparable
provisions of any subsequent enactments), or a trustee of any such plan or any
other person acting on behalf of any such plan or arrangement or using such
plan's or arrangement's assets, an Opinion of Counsel in form and substance
satisfactory to the Trustee which Opinion of Counsel shall not be an expense
of either the Trustee or the Trust, addressed to the Trustee, to the effect
that the purchase or holding of such ERISA-Restricted Certificate will not
result in the assets of the Trust being deemed to be "plan assets" and subject
to the prohibited transaction provisions of ERISA and the Code and will not
subject the Trustee to any obligation in addition to those expressly
undertaken in this Agreement or to any liability. For purposes of clause (i)
and (ii) of the preceding sentence, such representation shall be deemed to
have been made to the Trustee by the transferee's acceptance of an
ERISA-Restricted Certificate (or the acceptance by a Certificate Owner of the
beneficial interest in any such Class of ERISA-Restricted Certificates) in
book-entry form unless the Trustee shall have received from the transferee an
alternative representation acceptable in form and substance to the Depositor
or an Opinion of Counsel described in clause (iii). Notwithstanding anything
else to the contrary herein, any purported transfer of an ERISA-Restricted
Certificate to or on behalf of an employee benefit plan subject to Section 406
of ERISA or a plan subject to Section 4975 of the Code without the delivery to
the Trustee of an Opinion of Counsel in form and substance satisfactory to the
Trustee as described above shall be void and of no effect. The Trustee shall
be under no liability to any Person for any registration of transfer of any
ERISA-Restricted Certificate that is in fact not permitted by this Section
9.02(d) or for making any payments due on such Certificate to the Holder
thereof or
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taking any other action with respect to such Holder under the provisions of
this Agreement so long as the transfer was registered by the Trustee in
accordance with the foregoing requirements. The Trustee shall be entitled, but
not obligated, to recover from any Holder of any ERISA-Restricted Certificate
that was in fact an employee benefit plan subject to Section 406 of ERISA or a
plan subject to Section 4975 of the Code or a Person acting on behalf of any
such plan at the time it became a Holder or, at such subsequent time as it
became such a plan or Person acting on behalf of such a plan, all payments
made on such ERISA-Restricted Certificate at and after either such time. Any
such payments so recovered by the Trustee shall be paid and delivered by the
Trustee to the last preceding Holder of such Certificate that is not such a
plan or Person acting on behalf of a plan.
Each Person who has or who acquires any Ownership Interest
in a Class R Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably appointed the Depositor or its designee as its
attorney-in-fact to negotiate the terms of any mandatory sale under clause (v)
below and to execute all instruments of transfer and to do all other things
necessary in connection with any such sale, and the rights of each Person
acquiring any Ownership Interest in a Class R Certificate are expressly
subject to the following provisions:
(i) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate shall be a Permitted
Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted
Transferee.
(ii) No Person shall acquire an Ownership Interest in a
Class R Certificate unless such Ownership Interest is a pro
rata undivided interest.
(iii) In connection with any proposed transfer of any
Ownership Interest in a Class R Certificate, the Trustee
shall as a condition to registration of the transfer,
require delivery to it, in form satisfactory to it, of each
of the following:
A. an affidavit in the form of Exhibit Q hereto
from the proposed transferee to the effect that such
transferee is a Permitted Transferee and that it is not
acquiring its Ownership Interest in the Class R
Certificate that is the subject of the proposed
transfer as a nominee, trustee or agent for any Person
who is not a Permitted Transferee; and
B. a covenant of the proposed transferee to the
effect that the proposed transferee agrees to be bound
by and to abide by the transfer restrictions applicable
to the Class R Certificates.
(i) Any attempted or purported transfer of any
Ownership Interest in a Class R Certificate in violation of
the provisions of this Section shall be absolutely null and
void and shall vest no rights in the purported transferee.
If any purported transferee shall, in violation of the
provisions of this Section, become a Holder of a Class R
Certificate, then the prior Holder of such Class R
Certificate that is a Permitted Transferee shall, upon
discovery that the
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registration of transfer of such Class R
Certificate was not in fact permitted by this Section, be
restored to all rights as Holder thereof retroactive to the
date of registration of transfer of such Class R
Certificate. The Trustee shall be under no liability to any
Person for any registration of transfer of a Class R
Certificate that is in fact not permitted by this Section or
for making any distributions due on such Class R Certificate
to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this
Agreement so long as the Trustee received the documents
specified in clause (iii). The Trustee shall be entitled to
recover from any Holder of a Class R Certificate that was in
fact not a Permitted Transferee at the time such
distributions were made all distributions made on such Class
R Certificate. Any such distributions so recovered by the
Trustee shall be distributed and delivered by the Trustee to
the prior Holder of such Class R Certificate that is a
Permitted Transferee.
(ii) If any Person other than a Permitted Transferee
acquires any Ownership Interest in a Class R Certificate in
violation of the restrictions in this Section, then the
Trustee shall have the right but not the obligation, without
notice to the Holder of such Class R Certificate or any
other Person having an Ownership Interest therein, to notify
the Depositor to arrange for the sale of such Class R
Certificate. The proceeds of such sale, net of commissions
(which may include commissions payable to the Depositor or
its affiliates in connection with such sale), expenses and
taxes due, if any, will be remitted by the Trustee to the
previous Holder of such Class R Certificate that is a
Permitted Transferee, except that in the event that the
Trustee determines that the Holder of such Class R
Certificate may be liable for any amount due under this
Section or any other provisions of this Agreement, the
Trustee may withhold a corresponding amount from such
remittance as security for such claim. The terms and
conditions of any sale under this clause (v) shall be
determined in the sole discretion of the Trustee and it
shall not be liable to any Person having an Ownership
Interest in a Class R Certificate as a result of its
exercise of such discretion.
(iii) If any Person other than a Permitted Transferee
acquires any Ownership Interest in a Class R Certificate in
violation of the restrictions in this Section, then the
Trustee will provide to the Internal Revenue Service, and to
the persons specified in Sections 860E(e)(3) and (6) of the
Code, information needed to compute the tax imposed under
Section 860E(e)(5) of the Code on transfers of residual
interests to disqualified organizations.
The foregoing provisions of this Section shall cease to apply to transfers
occurring on or after the date on which there shall have been delivered to the
Trustee, in form satisfactory to the Trustee, (i) written notification from
each Rating Agency that the removal of the restrictions on transfer set forth
in this Section will not cause such Rating Agency to downgrade its rating of
the Certificates and (ii) an Opinion of Counsel to the effect that such
removal will not cause the Trust to fail to qualify as a REMIC. The Servicer
shall be the initial holder of the Tax Matter Person Residual Interest.
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(e) No service charge shall be made for any registration of
transfer or exchange of Certificates of any Class, but 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.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled by the Certificate Registrar and disposed of
pursuant to its standard procedures.
SECTION 9.03. No Charge; Disposition of Void Certificates.
No service charge shall be made to a Certificateholder for
any transfer or exchange of Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates. All Certificates surrendered for transfer and exchange shall be
disposed of in a manner approved by the Trustee.
SECTION 9.04. 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 Trustee such security
or indemnity as may be required by each to save it harmless, then in the
absence of notice to the Certificate Registrar or the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
original denomination. Upon the issuance of any new Certificate under this
Section 9.04, the Trustee may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto
and any other expenses connected therewith. Any duplicate Certificate issued
pursuant to this Section 9.04 shall constitute complete and indefeasible
evidence of ownership of the Percentage Interest, as if originally issued,
whether or not the mutilated, destroyed, lost or stolen Certificate shall be
found at any time.
SECTION 9.05. Persons Deemed Owners.
Prior to due presentation of a Certificate for registration
of transfer, the Servicer, the Seller, the Trustee, the Paying Agent and the
Certificate Registrar may treat the person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
remittances pursuant to Section 8.01 and for all other purposes whatsoever,
and none of the Servicer, the Seller, the Trustee, the Certificate Registrar,
the Paying Agent or any agent of the Servicer, the Seller, the Trustee, the
Paying Agent or the Certificate Registrar shall be affected by notice to the
contrary.
SECTION 9.06. Access to List of Certificateholders' Names
and Addresses.
The Certificate Registrar will furnish to the Trustee and
the Servicer, within five days after receipt by the Certificate Registrar of a
request therefor from the Trustee in writing, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If Holders of
Certificates evidencing, as to
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any Class, Percentage Interests representing 25% or more (hereinafter referred
to as "Applicants") apply in writing to the 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 which such Applicants
propose to transmit, then the Trustee shall, within five Business Days after
the receipt of such application, afford such Applicants access during normal
business hours to the most recent list of Certificateholders held by the
Trustee. If such list is as of a date more than 90 days prior to the date of
receipt of such Applicants' request, the Trustee shall promptly request from
the Certificate Registrar a current list as provided above, and shall afford
such Applicants access to such list promptly upon receipt. Every
Certificateholder, by receiving and holding a Certificate, agrees with the
Certificate Registrar and the Trustee that none of the Seller, the Certificate
Registrar or the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
SECTION 9.07. Authenticating Agents.
The Trustee may appoint one or more Authenticating Agents
with power to act on its behalf and subject to its direction in the execution
and delivery of the Certificates. For all purposes of this Agreement, the
execution and delivery of Certificates by the Authenticating Agent pursuant to
this Section shall be deemed to be the execution and delivery of Certificates
"by the Trustee."
ARTICLE X
INDEMNITIES; CERTAIN MATTERS RELATING TO THE SELLER, THE SERVICER
AND THE DEPOSITOR
SECTION 10.01. Seller's Indemnities.
The Seller will defend and indemnify the Trust, the Trustee,
its officers, directors, employees and agents (including the Custodian, the
Paying Agent and any other agents of the Trustee), the Backup Servicer
and the Certificateholders against any and all costs, expenses, losses,
damages, claims and liabilities, including reasonable fees and expenses of
counsel and expenses of litigation of any third-party claims (i) arising out
of or resulting from the origination of any Contract (including but not
limited to truth in lending requirements) or the servicing of such Contract
prior to its transfer to the Trust (but only to the extent such cost, expense,
loss, damage, claim or liability is not provided for by the Seller repurchase
of such Contract pursuant to Section 3.06) or (ii) arising out of or resulting
from the use or ownership of any Manufactured Homes by the Seller or the
Servicer or any Affiliate of either. Notwithstanding any other provision of
this Agreement, the obligation of the Seller under this Section shall not
terminate upon a Service Transfer pursuant to Article VII, except that the
obligation of the Seller under this Section shall not relate to the actions of
any subsequent Servicer after a Service Transfer.
SECTION 10.02. Liabilities to Obligors.
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No obligation or liability to any Obligor under any of the
Contracts is intended to be assumed by the Trust, the Trustee or the
Certificateholders under or as a result of this Agreement and the transactions
contemplated hereby and, to the maximum extent permitted and valid under
mandatory provisions of law, the Trust, the Trustee and the Certificateholders
expressly disclaim such assumption.
SECTION 10.03. Tax Indemnification.
The Seller agrees to pay, and to indemnify, defend and hold
harmless the Trust, the Trustee (including the Custodian, the Paying Agent and
any other agents of the Trustee) and the Certificateholders from, any taxes
which may at any time be asserted with respect to, and as of the date of, the
transfer of the Contracts to the Trust, including, without limitation, any
sales, gross receipts, general corporation, personal property, privilege or
license taxes (but not including any federal, state or other taxes arising out
of the creation of the Trust and the issuance of the Certificates), and costs,
expenses and reasonable counsel fees in defending against the same, whether
arising by reason of the acts to be performed by the Seller or the Servicer
under this Agreement.
SECTION 10.04. Servicer's Indemnities.
The Servicer shall indemnify and hold harmless the Trust,
the Backup Servicer and the Trustee and its officers, directors, agents and
employees from and against any loss, liability, expense, damage or injury
suffered or sustained by reason of such Servicer's willful misfeasance, bad
faith or negligence in the performance of its activities in servicing or
administering the Contracts pursuant to this Agreement, including, but not
limited to, any judgment, award, settlement, reasonable fees of counsel of its
selection and other costs or expenses incurred in connection with the defense
of any actual or threatened action, proceeding or claim related to the
Servicer's willful misfeasance, bad faith or negligence. Any such
indemnification shall not be payable from the assets of the Trust, except
under Section 8.06, if appropriate. The provisions of this indemnity shall run
directly to and be enforceable by an injured party subject to the limitations
hereof. The provisions of this Section 10.04 shall survive termination of the
Agreement.
SECTION 10.05. Operation of Indemnities.
Indemnification under this Article shall include, without
limitation, reasonable fees and expenses of counsel and expenses of
litigation. If the Seller or the Servicer has made any indemnity payments to
the Trustee pursuant to this Article and the Trustee thereafter collects any
of such amounts from others, the Trust will repay such amounts collected to
the Seller or the Servicer, as the case may be, without interest.
SECTION 10.06. Liability of the Seller, the Servicer, the
Backup Servicer and the Depositor.
The Seller and the Servicer shall be liable in accordance
herewith only to the extent of the obligations specifically imposed upon and
undertaken by the Seller or the Servicer, as the case may be, herein. The
Depositor and the Backup Servicer shall be liable in accordance
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herewith only to the extent of the obligations specifically imposed upon and
undertaken herein by the Depositor or the Backup Servicer.
SECTION 10.07. Merger or Consolidation of, or Assumption of
the Obligations of, the Seller, the Servicer, the Backup Servicer or the
Depositor.
Any Person into which the Seller, the Servicer, the Backup
Servicer or Depositor may be merged or consolidated, or any Person resulting
from any merger, conversion or consolidation to which the Seller, the
Servicer, the Backup Servicer or the Depositor shall be a party, or any Person
succeeding to the business of the Seller, the Servicer, the Backup Servicer or
the Depositor, shall be the successor of the Seller, the Servicer, the Backup
Servicer or the Depositor, as the case may be, hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided,
however, that the successor Servicer shall satisfy all the requirements of an
Eligible Servicer.
SECTION 10.08. Limitation on Liability of Servicer, the
Backup Servicer, Others.
Neither the Servicer, the Backup Servicer nor any of the
directors or officers or employees or agents of the Servicer or the Backup
Servicer shall be under any liability to the Trust or the Certificateholders
for any action taken or for refraining from the taking of any action by the
Servicer or the Backup Servicer in good faith pursuant to this Agreement, or
for errors in judgment; provided, however, that this provision shall not
protect the Servicer or the Backup Servicer or any such Person against any
liability which would otherwise be imposed by reason of its willful
misfeasance, bad faith or negligence in the performance of duties of the
Servicer or the Backup Servicer or by reason of its reckless disregard of its
obligations and duties of the Servicer or the Backup Servicer hereunder;
provided, further, that this provision shall not be construed to entitle the
Servicer or the Backup Servicer to indemnity in the event that amounts
advanced by the Servicer or the Backup Servicer to retire any senior lien
exceed Net Liquidation Proceeds realized with respect to the related Contract.
The Servicer, the Backup Servicer and any director or officer or employee or
agent of the Servicer or the Backup Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Servicer, the Backup Servicer
and any director or officer or employee or agent of the Servicer or the Backup
Servicer shall be indemnified by the Trust and held harmless against any loss,
liability or expense incurred in connection with any legal action relating to
this Agreement or the Certificates, other than any loss, liability or expense
related to any specific Contract or Contracts (except as any such loss,
liability or expense shall be otherwise reimbursable pursuant to this
Agreement) and any loss, liability or expense incurred by reason of its
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of its reckless disregard of obligations and duties
hereunder; and such amounts shall be payable only pursuant to Section
8.03(a)(14) after payments to the Regular Certificateholders for the related
Distribution Date. The Servicer or the Backup Servicer may undertake any such
action which it may deem necessary or desirable in respect of this Agreement,
and the rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the reasonable legal expenses and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Trust and the Servicer shall be entitled to be
reimbursed
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therefor only after payments to the Regular Certificates for the related
Distribution Date. The Servicer's or the Backup Servicer's right to indemnity
or reimbursement pursuant to this Section shall survive any resignation or
termination of the Servicer or the Backup Servicer pursuant to Section 10.09
or 7.01 with respect to any losses, expenses, costs or liabilities arising
prior to such resignation or termination (or arising from events that occurred
prior to such resignation or termination). This paragraph shall apply to the
Servicer or the Backup Servicer solely in its capacity as Servicer or the
Backup Servicer hereunder and in no other capacities.
Notwithstanding any provision to the contrary contained in
this Agreement, the parties hereto and the Certificateholders acknowledge and
agree that the Backup Servicer is not assuming and shall not be responsible or
liable for any liabilities, obligations, losses, damages or expenses
(including reasonable attorneys' fees) arising from or related to (i) any act
or omission of the initial Servicer or any prior servicer in its capacity as
Servicer on or prior to the effective Service Transfer Date, (ii) any act or
omission of the Trustee, the initial Servicer, the Seller or the Depositor or
any other party to the Agreement prior to, on or following the Servicer
Transfer Date, or (iii) any breach or default by the initial Servicer, the
Seller or the Trustee of their respective duties, obligations, covenants,
representations and warranties contained in this Agreement or in any related
document or agreement, whether such breach or default occurs or occurred prior
to, on or following the Service Transfer Date.
The parties hereto and the Certificateholders acknowledge
that the Backup Servicer has agreed to be Backup Servicer for the limited
purpose of servicing the Contracts, and that neither the Backup Servicer nor
any of its Affiliates provides any guarantee or assurance whatsoever regarding
the payment of the Certificates in full, the timing of payment of the
Certificates or the enforceability or collectability of the Contracts.
SECTION 10.09. Servicer and Backup Servicer Not to Resign.
Subject to the provisions of Section 10.07, neither the
Servicer nor the Backup Servicer shall resign from the obligations and duties
hereby imposed on it except (i) upon determination that the performance of its
obligations or duties hereunder are no longer permissible under applicable law
or are in material conflict by reason of applicable law with any other
activities carried on by it or its subsidiaries or Affiliates, the other
activities of the Servicer so causing such a conflict being of a type and
nature carried on by the Servicer, the Backup Servicer or its subsidiaries or
Affiliates at the date of this Agreement, or (ii) in the case of the Backup
Servicer, upon a default in payment of the fees and other amounts due and
payable to the Backup Servicer as provided in this Agreement, which default is
not cured within 15 days following written notice thereof to the Trustee or
(iii) upon satisfaction of the following conditions: (a) the Servicer or the
Backup Servicer, as applicable, has proposed a successor servicer to the
Trustee in writing and such proposed successor servicer is reasonably
acceptable to the Trustee; and (b) each Rating Agency shall have delivered a
letter to the Trustee prior to the appointment of the successor servicer
stating that the proposed appointment of such successor servicer as Servicer
or Backup Servicer, as applicable, hereunder will not result in the reduction
or withdrawal of the then current rating of the Regular Certificates;
provided, however, that no such resignation by the Servicer or the Backup
Servicer under (i) or (iii) above shall become effective until such successor
servicer or Backup Servicer or, in the case of (i) above with respect to the
Servicer, the Backup Servicer shall have assumed the Servicer's
responsibilities and
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obligations hereunder in accordance with this Agreement or the Trustee shall
have designated a successor servicer in accordance with Section 7.02. Any such
resignation shall not relieve the Servicer or Backup Servicer of
responsibility for any of the obligations specified in Sections 7.01, 7.02,
7.03 and 7.05(c) or this Article X as specified as obligations that survive
the resignation or termination of the Servicer or the Backup Servicer. Any
such determination permitting the resignation of the Servicer or Backup
Servicer pursuant to clause (i) above shall be evidenced by an Opinion of
Counsel to such effect delivered to the Trustee.
ARTICLE XI
THE TRUSTEE
SECTION 11.01. Duties of Trustee.
The Trustee, prior to the occurrence of an Event of
Termination and after the curing of all Events of Termination which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If an Event of Termination has
occurred (which has not been cured or waived), the Trustee shall exercise such
of the rights and powers vested in it by this Agreement, and use the same
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of such person's own affairs.
Any permissive right of the Trustee enumerated in this Agreement shall not be
construed as a duty.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform as to form to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement
in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected, and if the instrument is not
corrected to its satisfaction, it will provide notice thereof to the
Certificateholders.
Subject to Section 11.03, no provision of this Agreement
shall be construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act or its own misconduct; provided,
however, that:
(1) Prior to the occurrence of an Event of
Termination, and after the curing of all such Events of
Termination which may have occurred, the duties and
obligations of the Trustee shall be determined solely
by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against
the Trustee and, in the absence of bad faith on the
part of the Trustee, the Trustee may conclusively rely,
as to the truth of the statements and the correctness
of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
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(2) The Trustee shall not be liable for an error
of judgment made in good faith by a Responsible Officer
of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent
facts;
(3) The Trustee shall not be personally liable
with respect to any action taken, suffered or omitted
to be taken by it in good faith in accordance with the
direction of the Certificateholders with aggregate
Percentage Interests representing 25% or more of the
Trust relating to the time, method and place of
conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement; and
(4) The Trustee shall not be charged with
knowledge of any event referred to in Section 7.01
unless a Responsible Officer of the Trustee at the
Corporate Trust Office obtains actual knowledge of such
event or the Trustee receives written notice of such
event from the Servicer or the Holders of Certificates
evidencing, as to any Class, Percentage Interests
representing 25% or more.
None of the provisions contained in this Agreement shall in
any event require the Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Seller or the Servicer under
this Agreement. The Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if there
is reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 11.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 11.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate, certificate
of a Servicing Officer, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) The Trustee may consult with its own counsel and any
opinion of any such counsel or counsel for the Seller or the Servicer shall be
full and complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in accordance with
such Opinion of Counsel;
(c) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation hereunder or in relation hereto, at the
request, order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be
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incurred therein or thereby; provided, however, that nothing contained herein
shall relieve the Trustee of the obligations, upon the occurrence of an Event
of Termination (which has not been cured or waived), to exercise such of the
rights and powers vested in it by this Agreement, and to use the same degree
of care and skill in their exercise as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs;
(d) Prior to the occurrence of an Event of Termination and
after the curing of all Events of Termination which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing so to do by Holders of Certificates evidencing, as
to any Class, Percentage Interests representing 25% or more; provided,
however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such cost, expense or
liability as a condition to so proceeding. The reasonable expense of every
such examination shall be paid by the Servicer or, if paid by the Trustee,
shall be reimbursed by the Servicer upon demand; and
(e) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian and shall not be liable for any acts or
omissions of such agents, attorneys or custodians if appointed by it with due
care hereunder.
SECTION 11.03. Trustee Not Liable for Certificates or
Contracts.
The recitals contained herein and in the Certificates (other
than the signature of the Trustee on the Certificates, the acknowledgments of
the Trustee contained in Article II and the representations and warranties of
the Trustee in Section 11.14) shall be taken as the statements of the
Depositor and the Trustee does not assume any responsibility for their
correctness. The Trustee makes no representations or warranties as to the
validity or sufficiency of this Agreement (other than as specifically set
forth in Section 11.14) or of the Certificates (other than the signature of
the Trustee on the Certificates) or of any Contract or related document or any
information provided by the Servicer. The Trustee shall not be accountable for
the use or application by the Depositor of any of the Certificates or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor or the Servicer in respect of the Contracts or deposited in
or withdrawn from the Certificate Account by the Servicer.
SECTION 11.04. Rights of Certificateholders to Direct
Trustee and to Waive Event of Termination.
Holders of Class A Certificates, Holders of Class M
Certificates and Holders of Class B-1 Certificates evidencing, as to each such
Class, Percentage Interests representing 25% or more shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee; provided, however, that, subject to Section 11.01, the Trustee shall
have the right to
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decline to follow any such direction if the Trustee being advised by counsel
determines that the action so directed may not lawfully be taken, or if the
Trustee in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceedings so directed would be illegal or
involve it in personal liability or be unduly prejudicial to the rights of
Certificateholders not parties to such direction; and provided further that
nothing in this Agreement shall impair the right of the Trustee to take any
action deemed proper by the Trustee and which is not inconsistent with such
direction by the Certificateholders; and provided further that the Trustee
shall instead follow the directions of Holders of Class A Certificates,
Holders of Class M Certificates and Holders of Class B-1 Certificates
evidencing, as to each such Class, Percentage Interests aggregating 51% or
more whenever it receives conflicting directions from Class A
Certificateholders, Class M Certificateholders and Class B-1
Certificateholders. Holders of Class A Certificates, Holders of Class M
Certificates and Holders of Class B-1 Certificates evidencing, as to each such
Class, Percentage Interests representing 51% or more may on behalf of
Certificateholders waive any past Event of Termination hereunder and its
consequences, except a default in respect of a covenant or provision hereof
which under Section 12.07 cannot be modified or amended without the consent of
all Certificateholders, and upon any such waiver, such Event of Termination
shall cease to exist and shall be deemed to have been cured for every purpose
of this Agreement; but no such waiver shall extend to any subsequent or other
Event of Termination or impair any right consequent thereon. Following the
Class M-2 Cross-Over Date, if all distributions payable to the Class A
Certificateholders and the Class M Certificateholders have either been made or
provided for in accordance with this Agreement, then the Holders of Class B-1
Certificates may exercise the rights given to the Class A Certificateholders,
the Class M Certificateholders and Class B-1 Certificateholders under this
Section.
SECTION 11.05. Trustee's Fees and Expenses.
(a) In accordance with Section 8.03(a) the Trustee shall be
paid and reimbursed:
(1) from the Trust for the amount of the Trustee
Fee for all services rendered by it hereunder (which
compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an
express trust) including the services provided in
connection with any auctions pursuant to Section
8.05(e);
(2) from the Seller for the amount of all
reasonable expenses and disbursements incurred or made
by the Trustee in accordance with any provision of this
Agreement (including the reasonable compensation and
the expenses and disbursements of its agents and
counsel, and reasonable compensation expenses and
disbursements in connection with any auctions pursuant
to Section 8.05(e)), except any such expense or
disbursement as may be attributable to its negligence
or bad faith; and
(3) from the Seller for the amount of any
indemnification owed to the Trustee or any of its
directors, officers, employees, affiliates or agents
pursuant to Section 11.05(b) below.
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The covenants in this Section 11.05 shall be for the benefit
of the Trustee in its capacities as Trustee, Paying Agent, Custodian and
Certificate Registrar hereunder, and shall survive the termination of this
Agreement.
(b) The Trustee will be entitled to indemnification from the
Seller and will be held harmless by the Seller against any loss, liability,
claim, demand, or expense relating to this Agreement, the Contracts or the
Certificates other than any loss, liability, or expense incurred by reason of
willful misfeasance, bad faith, or negligence in the performance of duties or
by reason of negligent disregard of obligations and duties.
Neither the Trustee nor any of its respective directors,
officers, employees, affiliates, or agents, will be under any liability to the
Trust or the Certificateholders for any action taken or for refraining from
the taking of any action in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that the Trustee will not be protected
against any breach of representations or warranties made herein or any
liability which would otherwise be imposed by reason of willful misfeasance,
bad faith, or negligence in the performance of duties herein or by reason of
negligent disregard of obligations and duties hereunder.
(c) The Trustee shall deliver to the Depositor, the Seller
and the Servicer a report detailing all payments from the Trust made with
respect to legal fees on account of third-party claims. The report shall be
delivered monthly, promptly following any month in which such payments were
made.
(d) If, but only if, the Seller fails to pay any amounts due
from it to the Trustee under this Section 11.05 promptly after demand therefor
by the Trustee, the Trustee may reimburse itself for such amounts from funds
on deposit in the Trustee Reimbursement Account. Upon such reimbursement, the
reimbursed amounts shall be paid for all purposes.
SECTION 11.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a financial
institution organized and doing business under the laws of the United States
of America or any State, authorized under such laws to exercise corporate
trust powers and a Title I approved lender pursuant to FHA Regulations, shall
not be an Affiliate of the Seller, and shall have a combined capital and
surplus of at least $50,000,000 or shall be a member of a bank holding system
the aggregate combined capital and surplus of which is $50,000,000, provided
that the Trustee's separate capital and surplus shall at all times be at least
the amount required by Section 310(a)(2) of the Trust Indenture Act of 1939,
as amended. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of a supervising or examining
authority, then for the purposes of this Section 11.06, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
addition, the Trustee shall at all times have a long-term deposit rating (or,
if the Trustee is a wholly owned subsidiary of a bank holding company system
and not rated, the bank holding company shall have a rating from S&P (if rated
by S&P) of at least BBB and a rating from Xxxxx'x (if rated by Xxxxx'x) of at
least Baa3, or as shall be otherwise acceptable to Xxxxx'x and S&P. In case at
any time the Trustee shall cease to be eligible in accordance with
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the provisions of this Section 11.06, the Trustee shall resign immediately in
the manner and with the effect specified in Section 11.07.
SECTION 11.07. Resignation or Removal of Trustee.
The Trustee may at any time resign and be discharged from
the trusts hereby created by giving written notice thereof to the Depositor,
the Servicer and the Seller. A copy of any such notice shall be sent to S&P
and Xxxxx'x. Upon receiving such notice of resignation, the Seller shall
promptly appoint a successor Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to each of the Servicer and the
Seller and one copy to the successor Trustee. If no successor Trustee shall
have been so appointed and shall have accepted appointment within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 11.06 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Trustee shall
be legally unable to act, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
the Depositor may remove the Trustee. If the Depositor shall have removed the
Trustee under the authority of the immediately preceding sentence, the
Depositor shall promptly appoint a successor Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor Trustee.
Holders of Class A Certificates, Holders of Class M
Certificates and Holders of Class B-1 Certificates evidencing, as to each such
Class, Percentage Interests aggregating 51% or more may at any time remove the
Trustee and appoint a successor by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of such instruments shall be delivered to the Depositor, one
complete set to the Trustee so removed and one complete set to the successor
so appointed. A copy of such instrument shall be delivered to the
Certificateholders, the Seller and the Servicer by the Depositor
Any resignation or removal of the Trustee and appointment of
a successor Trustee pursuant to any of the provisions of this Section 11.07
shall not become effective until acceptance of appointment by the successor
Trustee as provided in Section 11.08.
SECTION 11.08. Successor Trustee.
Any successor Trustee appointed as provided in Section 11.07
shall execute, acknowledge and deliver to the Servicer, the Seller and to its
predecessor Trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee. The predecessor
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Trustee shall deliver or cause to be delivered to the successor Trustee the
Contracts, Contract Files and Land-and-Home Contract Files and any related
documents and statements held by it hereunder; and, if the Land-and-Home
Contract Files are then held by a custodian pursuant to a custodial agreement,
the predecessor Trustee and the custodian shall amend such custodial agreement
to make the successor Trustee the successor to the predecessor Trustee
thereunder; and the Servicer, the Seller and the predecessor Trustee shall
execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Trustee all such rights, powers, duties and obligations.
No successor Trustee shall accept appointment as provided in
this Section 11.08 unless at the time of such acceptance such successor
Trustee shall be eligible under the provisions of Section 11.06.
Upon acceptance of appointment by a successor Trustee as
provided in this Section 11.08, the Servicer shall cause notice of the
succession of such Trustee hereunder to be mailed to each Certificateholder at
their addresses as shown in the Certificate Register. If the Servicer fails to
mail such notice within ten days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be mailed
at the expense of the Servicer.
SECTION 11.09. Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Person succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such Person shall be eligible
under the provisions of Section 11.06, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. The Trustee shall promptly notify S&P
and Xxxxx'x in the event it is a party to any merger, conversion or
consolidation.
SECTION 11.10. Tax Returns.
Upon the Trustee's request, the Servicer will furnish the
Trustee with all such information as the Trustee may reasonably require in
connection with preparing all tax returns of the Subsidiary REMIC and the
Master REMIC and the Trustee shall execute such returns.
SECTION 11.11. Obligor Claims.
In connection with any offset defenses, or affirmative
claims for recovery, asserted in legal actions brought by Obligors under one
or more Contracts based upon provisions therein complying with, or upon other
rights or remedies arising from, any legal requirements applicable to the
Contracts, including, without limitation, the Federal Trade Commission's Trade
Regulation Rule Concerning Preservation of Consumers' Claims and Defenses (16
C.F.R. ss. 433) as amended from time to time:
(1) The Trustee is not, and shall not be deemed to
be, either in any individual capacity, as trustee
hereunder or otherwise, a creditor, or a
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joint venturer with or an Affiliate of, or acting in
concert or cooperation with, any seller of home
improvements, in the arrangement, origination or making
of Contracts. The Trustee is the holder of the Contracts
only as trustee on behalf of the Certificateholders, and
not as a principal or in any individual or personal
capacity;
(2) The Trustee shall not be personally liable for
or obligated to pay Obligors any affirmative claims
asserted thereby, or responsible to Certificateholders
for any offset defense amounts applied against Contract
payments, pursuant to such legal actions;
(3) The Trustee will pay, solely from available
Trust monies, affirmative claims for recovery by
Obligors only pursuant to final judicial orders or
judgments, or judicially approved settlement
agreements, resulting from such legal actions;
(4) The Trustee will comply with judicial orders
and judgments which require its actions or cooperation
in connection with Obligors' legal actions to recover
affirmative claims against Certificateholders.
(5) The Trustee will cooperate with and assist
Certificateholders in their defense of legal actions by
Obligors to recover affirmative claims if such
cooperation and assistance is not contrary to the
interests of the Trustee as a party to such legal
actions and if the Trustee is satisfactorily
indemnified for all liability, costs and expenses
arising therefrom; and
SECTION 11.12. Appointment of Co-Trustee or Separate
Trustee.
Notwithstanding any other provisions hereof, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust or property securing the same may at the time be
located, the Servicer and the Trustee, acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person or Persons, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider necessary or desirable. If the Servicer
shall not have joined in such appointment within 15 days after the receipt by
it of a request so to do, or in case an Event of Termination shall have
occurred and be continuing, the Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
11.06 hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 11.08
hereof. Any reasonable and necessary expense of the Trustee related to the
appointment of a co-trustee or a separate trustee for the limited purpose of
performing the Trustee's duties pursuant to this Section 11.12 shall be
reimbursable from the Trust.
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In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 11.12 all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed by the
Trustee (whether as Trustee hereunder or as successor to the defaulting
Servicer hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article XI. Each separate trustee and co-trustee,
upon its acceptance of the trust conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee.
Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
SECTION 11.13. Agents of Trustee.
To the extent not prohibited by law and not inconsistent
with the terms of this Agreement (including, without limitation, Section
11.12), the Trustee may appoint one or more agents to carry out ministerial
matters on behalf of the Trustee under this Agreement.
SECTION 11.14. Representations and Warranties of the
Trustee.
The Trustee hereby represents and warrants to the Servicer
and the Depositor, as of the Closing Date, that:
(1) It is a national banking association duly
organized, validly existing and in good standing under
the laws of the United States.
(2) The execution and delivery of this Agreement
by it, and the performance and compliance with the
terms of this Agreement by it, will not violate its
charter or articles of association or bylaws or to its
best knowledge constitute a default (or an event which,
with notice or lapse of time, or both, would constitute
a default) under, or result in the breach of, any
material agreement or other instrument to which it is a
party or which is applicable to it or any of its
assets.
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(3) It has the full power and authority to enter
into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution,
delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(4) This Agreement, assuming due authorization,
execution and delivery by the other parties,
constitutes a valid, legal and binding obligation of
it, enforceable against it in accordance with the terms
hereof, subject to (A) applicable bankruptcy,
insolvency, receivership, reorganization, moratorium
and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in
a proceeding in equity or at law.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Servicer and Backup Servicer Not to Assign
Duties or Resign; Delegation of Servicing Functions.
Neither the Servicer nor the Backup Servicer may sell or
assign its rights and duties as Servicer or Backup Servicer, as applicable,
hereunder, except as expressly provided for herein, provided that the Servicer
may pledge or assign the right to receive all or any portion of the Monthly
Servicing Fee payable to it and/or reimbursements for Outstanding Advance
Amounts and Nonrecoverable Advances.
SECTION 12.02. Maintenance of Office or Agency.
The Trustee will maintain in Columbus, Ohio, an office or
agency where Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Trustee in respect of
the Certificates and this Agreement may be served. On the date hereof the
Trustee's office for such purposes is located at 0000 Xxxxxxx Xxxxxxx, Xxxxx
0X, XX0 - 0000, Xxxxxxxx, XX 00000, Attn: Corporate Trust Services. The
Trustee will give prompt written notice to Certificateholders of any change in
the location of the Certificate Register or any such office or agency.
SECTION 12.03. Termination.
(a) This Agreement shall terminate (after distribution of
all amounts due to Certificateholders pursuant to Sections 8.01 and 8.03) on
the earlier of (a) the Distribution Date on which the Pool Principal Balance
is reduced to zero and all amounts payable to Certificateholders on such
Distribution Date have been distributed to Certificateholders and (b) the
Distribution Date on which the Servicer purchases the Contracts pursuant to
Section 8.05; provided, that in no event shall the trust created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United
States to the Court of St. Xxxxx, living on the date hereof; and
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provided further, that the Servicer's and the Seller's representations and
warranties and indemnities by the Seller and the Servicer shall survive
termination.
(b) Notice of any termination, specifying the Final
Distribution Date (which shall be a date that would otherwise be a
Distribution Date) upon which all Certificateholders may surrender their
Certificates to the Trustee for payment of the final distribution and
cancellation, shall be given promptly by the Trustee if the termination is the
result of an Auction Sale or by the Trustee (upon direction by the Servicer
ten days prior to the date such notice is to be mailed) if the termination is
the result of a purchase by the Servicer by letter to S&P, Moody's and the
Certificateholders mailed no later than the fifth Business Day of the month of
the Final Distribution Date specifying (1) the Final Distribution Date upon
which final payment on the Certificates will be made upon presentation and
surrender of Certificates at the office or agency of the Trustee therein
designated; (2) the amount of any such final payment; and (3) that the Record
Date otherwise applicable to such Distribution Date is not applicable,
payments being made only upon presentation and surrender of the Certificates
at the office or agency of the Trustee therein specified. Any notice of
purchase of Contracts by the Seller or the Servicer pursuant to Section 8.05
shall constitute the adoption by the Trustee on behalf of the
Certificateholders of a plan of complete liquidation of the Subsidiary REMIC
and the Master REMIC within the meaning of Section 860F of the Code on the
date such notice is given when signed by the Trustee. Each liquidation shall
be a qualified liquidation as evidenced by an Opinion of Counsel provided at
the expense of the Servicer. Each such notice shall, to the extent required by
the REMIC Provisions or other applicable law, be signed on behalf of the
Subsidiary REMIC and the Master REMIC by the Trustee. The Trustee shall give
such notice to the Certificate Registrar at the time such notice is given to
the Certificateholders. In the event such notice is given in connection with
the sale of the Contracts pursuant to Section 8.05, the Servicer or the
Trustee, as applicable, shall deposit in the Certificate Account on the Final
Distribution Date in immediately available funds an amount equal to the
above-described purchase price and upon such deposit Certificateholders will
be entitled to the amount of such purchase price but not amounts in excess
thereof, all as provided herein. Upon certification to the Trustee by a
Servicing Officer, following such final deposit the Trustee shall promptly
release to the purchaser of the Contracts pursuant to Section 8.05 the
Contract Files for the remaining Contracts, and the Trustee shall execute all
assignments, endorsements and other instruments necessary to effectuate such
transfer.
(c) Upon presentation and surrender of the Certificates, the
Trustee shall cause to be distributed from the Distribution Account, in the
following order of priority, to Certificateholders on the Final Distribution
Date in proportion to their respective Percentage Interests an amount equal to
(i) as to Class A Certificates, the Class A-1 Principal Balance, the Class A-2
Principal Balance, the Class A-3 Principal Balance and the Class A-4 Principal
Balance together with any Unpaid Class A Interest Shortfall and one month's
interest at the related Pass-Through Rate on the related Class, respectively
(calculated in the manner specified in Section 1.03), (ii) as to Class M-1
Certificates, the Class M-1 Principal Balance together with any Unpaid Class
M-1 Interest Shortfall, any Unpaid Class M-1 Liquidation Loss Interest
Shortfall and one month's interest at the Class M-1 Pass-Through Rate on the
Class M-1 Principal Balance, (iii) as to Class M-2 Certificates, the Class M-2
Principal Balance together with any Unpaid Class M-2 Interest Shortfall, any
Unpaid Class M-2 Liquidation Loss Interest Shortfall and one month's interest
at the Class M-2 Pass-Through Rate on the Class M-2
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Principal Balance, (iv) as to Class B-1 Certificates, the Class B-1 Principal
Balance together with any Unpaid Class B-1 Interest Shortfall, any Unpaid
Class B-1 Liquidation Loss Interest Shortfall and one month's interest at the
Class B-1 Pass-Through Rate on the Class B-1 Principal Balance and (v) as to
Class X Certificates, the amount which remains on deposit in the Distribution
Account (other than amounts retained to meet claims) after application
pursuant to clauses (i)-(iv) above. The distribution on the Final Distribution
Date shall be in lieu of the distribution otherwise required to be made on
such Distribution Date in respect of each Class of Certificates.
(d) In the event that all of the Certificateholders do not
surrender their Certificates for cancellation within three months after the
time specified in the above-mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within three months after the second notice all the Certificates
shall not have been surrendered for cancellation, the Servicer shall transfer
to the Trustee all amounts remaining on deposit in the Certificate Account, to
hold in trust for Certificateholders who have not surrendered their
Certificates for cancellation, together with the final record list of
Certificateholders, and the Trustee shall 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 which remain in trust
hereunder.
(e) Each Certificateholder hereby irrevocably approves and
appoints the Trustee as its attorney-in-fact for the purposes of adoption of
the plan of complete liquidation.
SECTION 12.04. Acts of Certificateholders.
(a) Except as otherwise specifically provided herein,
whenever Certificateholder approval, authorization, direction, notice,
consent, waiver or other action is required hereunder, such approval,
authorization, direction, notice, consent, waiver or other action shall be
deemed to have been given or taken on behalf of, and shall be binding upon,
all Certificateholders if agreed to by Holders of Certificates of the
specified Class or Classes evidencing, as to each such Class, Percentage
Interests aggregating 51% or more.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or
taken by Certificateholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Certificateholders
in person or by agent duly appointed in writing; and except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where required, to
the Servicer. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Agreement and (subject to Section 11.01) conclusive in favor of the Trustee,
the Servicer and the Seller if made in the manner provided in this Section.
(c) The fact and date of the execution by any
Certificateholder of any such instrument or writing may be proved in any
reasonable manner which the Trustee deems sufficient.
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(d) The ownership of Certificates shall be proved by the
Certificate Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder shall bind every holder of
every Certificate issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, or omitted
to be done by the Trustee, the Servicer or the Seller in reliance thereon,
whether or not notation of such action is made upon such Security.
(f) The Trustee may require such additional proof of any
matter referred to in this Section as it shall deem necessary.
SECTION 12.05. Calculations.
Except as otherwise provided in this Agreement, all interest
rate and basis point calculations under this Agreement will be made on the
basis of a 360-day year and twelve 30-day months and will be carried out to at
least three decimal places.
SECTION 12.06. Assignment or Delegation by Seller.
Except as specifically authorized hereunder, and except for
its obligations as Servicer which are dealt with under Article V and Article
VII, the Seller may not convey and assign or delegate any of its rights or
obligations hereunder absent the prior written consent of Holders of
Certificates of each Class evidencing, as to each such Class, Percentage
Interests aggregating 66 2/3% or more, and any attempt to do so without such
consent shall be void. It is understood that the foregoing does not prohibit
the pledge or assignment by the Seller of any right to payment pursuant to
Article VIII.
Notwithstanding the foregoing, any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller shall be a party, or
any Person succeeding to the business of the Seller, shall be the successor of
the Seller hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Seller shall promptly notify S&P and Moody's of
any such merger to which it is a party.
SECTION 12.07. Amendment.
(a) This Agreement may be amended from time to time by the
Depositor, the Seller, the Servicer, the Backup Servicer and the Trustee,
without the consent of any of the Certificateholders, to correct manifest
error or to give effect to the expectations of investors, to cure any
ambiguity, to correct or supplement any provisions herein which may be
inconsistent with any other provisions herein, as the case may be, to make
such changes as are necessary to maintain the status of each of the Subsidiary
REMIC and the Master REMIC as a "real estate mortgage investment conduit"
under the REMIC Provisions of the Code or to otherwise effectuate the benefits
of such status to the Subsidiary REMIC, the Master REMIC and the
Certificateholders, including, without limitation, to implement any provision
permitted by law that would enable a REMIC to avoid the imposition of any tax,
to add or amend any provision as required by S&P, Moody's, or any other
nationally recognized statistical rating organization in order to improve or
maintain the rating of any Class of Class A Certificates, Class M Certificates
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or Class B Certificates (it being understood that no party has any obligation
to do so), or to make any other provisions with respect to matters or
questions arising under this Agreement that shall not be inconsistent with the
provisions of this Agreement; provided, however, that such action shall not,
as evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any Certificateholder; and provided, further, that
the amendment shall not be deemed to adversely affect in any material respect
the interests of the Certificateholders and no Opinion of Counsel to that
effect shall be required if the Person requesting the amendment obtains a
letter from each Rating Agency stating that the amendment would not result in
the downgrading or withdrawal of the respective ratings then assigned to the
Regular Certificates.
(b) This Agreement may also be amended from time to time by
the Servicer, the Seller, the Backup Servicer and the Trustee, with the
consent of Holders of Certificates of each Class affected thereby evidencing,
as to each such Class, Percentage Interests aggregating 51% or more, for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the
rights of the Certificateholders; provided, however, that no such amendment
shall (a) reduce in any manner the amount of, or delay the timing of,
collections of payments on the Contracts or distributions which are required
to be made on any Certificate, (b) reduce the aforesaid percentage required to
consent to any such amendment, without the consent of the holders of all
Certificates then outstanding, (c) result in the disqualification of either
the Subsidiary REMIC or the Master REMIC as a REMIC under the Code, (d)
adversely affect the status of either the Subsidiary REMIC or the Master REMIC
as a REMIC or the status of the Regular Certificates as "regular interests" in
the Master REMIC or (e) cause any tax (other than any tax imposed on "net
income from foreclosure property" under Section 860G(c)(1) of the Code that
would be imposed without regard to such amendment) to be imposed on the Trust,
including, without limitation, any tax imposed on "prohibited transactions"
under Section 860F(a)(1) of the Code or on "contributions after the startup
date" under Section 860G(d)(1) of the Code.
(c) This Agreement shall not be amended under this Section
without the consent of 100% of Certificateholders if such amendment would
result in the disqualification of either the Subsidiary REMIC or the Master
REMIC as a REMIC under the Code.
(d) Concurrently with the solicitation of any consent
pursuant to this Section 12.07, the Trustee shall furnish written notification
to S&P and Moody's of such solicitation. Promptly after the execution of any
amendment pursuant to this Section 12.07, the Trustee shall furnish written
notification of the substance of such amendment to S&P and Moody's.
(e) It shall not be necessary for the consent of
Certificateholders under this Section 12.07 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable requirements as the Trustee may prescribe.
(f) The Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Trustee's own rights, duties or
immunities under this Agreement or otherwise.
103
(g) In connection with any amendment pursuant to this
Section, the Trustee shall be entitled to receive an Opinion of Counsel to the
effect that such amendment is authorized or permitted by the Agreement and
that all conditions precedent have been met.
(h) In the absence of the consent described in subsection
(c) of this Section, in connection with any amendment pursuant to this
Section, the Trustee shall have received an Opinion of Counsel, the expense of
which shall not be an expense of the Trust, stating that any such amendment
(i) will not adversely affect the status of the Subsidiary REMIC or the Master
REMIC as a REMIC or the status of the Regular Certificates as "regular
interests" in the Master REMIC, and (ii) will not cause any tax (other than
any tax imposed on "net income from foreclosure property" under Section
860G(c)(1) of the Code that would be imposed without regard to such amendment)
to be imposed on the Trust, including, without limitation, any tax imposed on
"prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860G(d)(1) of the Code.
(i) Upon the execution of any amendment or consent pursuant
to this Section 12.07, this Agreement shall be modified in accordance
therewith, and such amendment or consent shall form a part of this Agreement
for all purposes, and every Certificateholder hereunder shall be bound
thereby.
SECTION 12.08. Notices.
All communications and notices pursuant hereto to the
Depositor, the Servicer, the Seller, the Backup Servicer and the Trustee shall
be in writing and delivered or mailed to it at the appropriate following
address:
If to the Depositor:
Asset Backed Securities Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X'Xxxxxxxx
Telecopier Number: (000) 000-0000
If to the Seller or the Servicer:
Origen Financial L.L.C.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx and Xxxxxx X. Xxxxx
Telecopier Number: (000) 000-0000
If to the Trustee:
Bank One, N.A.
0000 Xxxxxxx Xxxxxxx
Xxxxx 0X - XX0-0000
Xxxxxxxx, Xxxx 00000
104
Attn: Corporate Trust Services
Telecopier Number: (000) 000-0000
If to S&P:
Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier Number: (000) 000-0000
If to Moody's:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Manufactured Housing Monitoring
Department
Telecopier Number: (000) 000-0000
If to the Backup Servicer:
Vanderbilt Mortgage and Finance, Inc.
000 Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telecopier Number: (000) 000-0000
or at such other address as the party may designate by notice to the other
parties hereto, which notice shall be effective when received.
All communications and notices pursuant hereto to a
Certificateholder shall be in writing and delivered or mailed at the address
shown in the Certificate Register.
SECTION 12.09. Merger and Integration.
Except as specifically stated otherwise herein, this
Agreement sets forth the entire understanding of the parties relating to the
subject matter hereof, and all prior understandings, written or oral, are
superseded by this Agreement. This Agreement may not be modified, amended,
waived or supplemented except as provided herein.
SECTION 12.10. Headings.
The headings herein are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision
hereof.
SECTION 12.11. Governing Law.
105
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAWS) AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
SECTION 12.12. Recordation of Agreement.
This Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other
comparable jurisdictions in which any or all of the properties subject to the
Contracts are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Trustee, but only upon
written direction of Holders of Certificates evidencing Percentage Interests
aggregating at least 51% accompanied by an Opinion of Counsel to the effect
that such recordation materially and beneficially affects the interests of
Certificateholders. The Certificateholders requesting such recordation shall
bear all costs and expenses of such recordation. The Trustee shall have no
obligation to ascertain whether such recordation so affects the interests of
the Certificateholders.
SECTION 12.13. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
to take any action or commence any proceeding in any court for a partition or
winding up of the Trust, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided in Sections 7.01, 7.02, 11.01 and 12.07) or in any manner otherwise
control the operation and management of the Trust, or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Certificates, be construed so as to constitute the Certificateholders
from time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision
hereof.
No Certificateholder shall have any right by virtue 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, unless such Holder previously shall have given to the Trustee a
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of Regular Certificates evidencing
Percentage Interests aggregating not less than 51% shall have made written
request upon the Trustee to institute such action, suit or proceeding in its
own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding; it
being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatever by virtue 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
106
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 herein provided and for the equal, ratable and
common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 12.14. 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 12.15. Certificates Nonassessable and Fully Paid.
The parties agree that the Certificateholders shall not be
personally liable for obligations of the Trust, that the beneficial ownership
interests represented by the Certificates shall be nonassessable for any
losses or expenses of the Trust or for any reason whatsoever, and that the
Certificates upon execution, authentication and delivery thereof by the
Trustee pursuant to Section 9.01 and 9.02 are and shall be deemed fully paid.
SECTION 12.16. Third-Party Beneficiaries.
This Agreement will inure to the benefit of and be binding
upon the parties hereto, the Certificateholders, the Certificate Owners, and
their respective successors and permitted assigns. Except as otherwise
provided in this Agreement, no other person will have any right or obligation
hereunder.
SECTION 12.17. Counterparts.
This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.
SECTION 12.18. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
107
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers all as of the day
and year first above written.
ASSET BACKED SECURITIES CORPORATION,
as Depositor
By /s/ Xxxxxxx X'Xxxxxxxx
Name: Xxxxxxx X'Xxxxxxxx
Title: Vice President
ORIGEN FINANCIAL L.L.C.,
as Seller and as Servicer
By /s/ Xxxx Xxxxxxxxxx
Name: Xxxx Xxxxxxxxxx
Title: Executive Vice President
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee
By /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Authorized Signer
VANDERBILT MORTGAGE AND FINANCE, INC.,
as Backup Servicer
By /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Executive Vice President
108
EXHIBIT A
---------
FORM OF CLASS A CERTIFICATE
---------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS
CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D
OF THE INTERNAL REVENUE CODE.
Class A-[1][2][3][4] No.
(Senior)
Cut-off Date: as defined in the Pass-Through Rate: Lesser of [One-Month LIBOR
plus] __% per annum and the Weighted Average
Net Contract Rate
Pooling and Servicing Agreement
dated as of March 1, 2002
First Distribution Date: Denomination: $_______
April 15, 0000
Xxxxxxxxx Xxxxxxxxxxxx of
All Class A-[1][2][3][4]
Servicer: Certificates: $___________
Origen Financial L.L.C.
Maturity Date: [_______]
(or if such day is not a
Business Day, then the next
succeeding Business Day)
CUSIP: _____
ORIGEN MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE ASSET-BACKED CERTIFICATES,
SERIES 2002-A, CLASS A-[1][2][3][4](SENIOR)
---------------------------------------------
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN
INTEREST IN THE DEPOSITOR, THE SELLER, THE TRUSTEE OR ANY AFFILIATE THEREOF,
EXCEPT TO THE EXTENT SET FORTH IN THE AGREEMENT.
This certifies that Cede & Co. is the registered owner of
the undivided Percentage Interest represented by the original principal amount
set forth above in Origen Manufactured Housing Contract Senior/Subordinate
Asset-Backed Certificate Trust 2002-A (the "Trust"), which includes among its
assets a pool of manufactured housing installment sale contracts and
installment loan agreements (including, without limitation, all related
security interests and any and all rights to receive payments which are
received pursuant thereto after the applicable Cut-off Date). The Trust has
been created pursuant to a Pooling and Servicing Agreement (the "Agreement"),
dated as of March 1, 2002, among Asset Backed Securities Corporation, as
depositor, Origen Financial L.L.C., as seller and servicer (in such
capacities, the "Seller" and the
A-1
"Servicer"), Vanderbilt Mortgage and Finance, Inc., as backup servicer (the
"Backup Servicer"), and Bank One, National Association, as Trustee of the
Trust (the "Trustee"). This Certificate is one of the Certificates described
in the Agreement and is issued pursuant and subject to the Agreement. By
acceptance of this Certificate the holder assents to and becomes bound by the
Agreement. To the extent not defined herein, all capitalized terms have the
meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on
the fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Distribution Date") of each month commencing in April,
2002, so long as the Agreement has not been terminated, by check (or by wire
transfer pursuant to instructions delivered to the Trustee at least 10 days
prior to such Distribution Date) to the registered Certificateholder at the
address appearing on the Certificate Register as of the last Business Day of
the calendar month immediately preceding such Distribution Date, in an amount
equal to the Certificateholder's Percentage Interest of the portion of the
Class A Distribution Amount to be distributed to such Class of Class A
Certificates. The Maturity Date is the date listed as such on the first page
hereof.
The Certificateholder, by its acceptance of this
Certificate, agrees that it will look solely to the funds in the Distribution
Account to the extent available for distribution to the Certificateholder as
provided in the Agreement for payment hereunder and that the Trustee is not
personally liable to the Certificateholder for any amounts payable under this
Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement. By acceptance of this
Certificate, the Certificateholder agrees to disclosure of his, her or its
name and address to other Certificateholders under the conditions specified in
the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all amendments thereto will be provided to any Certificateholder free of
charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations
set forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at the Corporate Trust Office,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder thereof or
his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such
other name as requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE
A-2
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
The Depositor, the Seller, the Servicer, the Trustee, the
Paying Agent, the Backup Servicer and the Certificate Registrar and any agent
of the Depositor, the Seller, the Servicer, the Trustee, the Paying Agent, the
Backup Servicer or the Certificate Registrar may treat the person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Seller, the Servicer, the Trustee, the Paying
Agent, the Certificate Registrar, the Backup Servicer nor any such agent shall
be affected by any notice to the contrary.
A-3
IN WITNESS WHEREOF, Origen Manufactured Housing Contract
Senior/Subordinate Asset-Backed Certificate Trust 2002-A has caused this
Certificate to be duly executed by the manual signature of a duly authorized
officer of the Trustee.
Dated: ORIGEN MANUFACTURED HOUSING
CONTRACT TRUST 2002-A
By Bank One, National Association
By _________________________
Authorized Signatory
This is one of the Class A-[] Certificates
referenced in the within-mentioned Agreement
By ___________________________________
Authorized Officer of
Bank One, National Association, as Trustee
A-4
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto ______________________________ the within Origen
Manufactured Housing Contract Senior/Subordinate Asset-Backed Certificate and
does hereby irrevocably constitute and appoint ______________________________
Attorney to transfer the said certificate on the Certificate Register
maintained by the Trustee, with full power of substitution in the premises.
Dated: By ____________________________
Signature
A-5
EXHIBIT B
---------
FORM OF CLASS M-[1][2] CERTIFICATE
----------------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS
CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D
OF THE INTERNAL REVENUE CODE.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
CLASS A CERTIFICATES [AND THE CLASS M-1 CERTIFICATES] AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
Class M-[1][2] No.
(Subordinate)
Cut-off Date: as defined in the Pooling and Pass-Through Rate: Lesser of __% per annum
Servicing Agreement and the Weighted Average Net Contract Rate
dated as of Xxxxx 0, 0000
Xxxxxxxxxxxx: $_______
First Distribution Date:
April 15, 2002 Aggregate Denomination of
All Class M-[1][2] Certificates:
$---------------
Servicer:
Origen Financial L.L.C. Maturity Date:
[-------]
(or if such day is not a
Business Day, then the next
succeeding Business Day)
CUSIP: _____
ORIGEN MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE ASSET-BACKED CERTIFICATES,
SERIES 2002-A, CLASS M-[1][2] (SUBORDINATE)
----------------------------------------------
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN
INTEREST IN THE DEPOSITOR, THE SELLER, THE TRUSTEE OR ANY AFFILIATE THEREOF,
EXCEPT TO THE EXTENT SET FORTH IN THE AGREEMENT.
This certifies that Cede & Co. is the registered owner of
the undivided Percentage Interest represented by the original principal amount
set forth above in Origen Manufactured Housing Contract Senior/Subordinate
Asset-Backed Certificate Trust 2002-A (the "Trust"), which includes among its
assets a pool of manufactured housing installment sale contracts and
installment loan agreements (including, without limitation, all related
security interests and any and all rights to receive payments which are due
pursuant thereto after the applicable Cut-off Date). The Trust has been
created pursuant to a Pooling and Servicing Agreement (the
B-1
"Agreement"), dated as of March 1, 2002, among Asset Backed Securities
Corporation, as depositor, Origen Financial L.L.C., as seller and servicer (in
such capacities, the "Seller" and the "Servicer"), Vanderbilt Mortgage and
Finance, Inc., as backup servicer (the "Backup Servicer"), and Bank One,
National Association, as Trustee of the Trust (the "Trustee"). This
Certificate is one of the Certificates described in the Agreement and is
issued pursuant and subject to the Agreement. By acceptance of this
Certificate the holder assents to and becomes bound by the Agreement. To the
extent not defined herein, all capitalized terms have the meanings assigned to
such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on
the fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Distribution Date") of each month commencing in April
2002, so long as the Agreement has not been terminated, by check (or by wire
transfer pursuant to instructions delivered to the Trustee at least 10 days
prior to such Distribution Date) to the registered Certificateholder at the
address appearing on the Certificate Register as of the last Business Day of
the calendar month immediately preceding such Distribution Date, in an amount
equal to the Certificateholder's Percentage Interest of the Class [M-1/M-2]
Distribution Amount for such Distribution Date. The Maturity Date of this
Certificate is the date listed as such on the first page hereof.
The Certificateholder, by its acceptance of this
Certificate, agrees that it will look solely to the funds in the Distribution
Account to the extent available for distribution to the Certificateholder as
provided in the Agreement for payment hereunder and that the Trustee is not
personally liable to the Certificateholder for any amounts payable under this
Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement. By acceptance of this
Certificate, the Certificateholder agrees to disclosure of his, her or its
name and address to other Certificateholders under the conditions specified in
the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all amendments thereto will be provided to any Certificateholder free of
charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations
set forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at the Corporate Trust Office,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder thereof or
his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such
other name as requested by an authorized
B-2
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
The Depositor, the Seller, the Servicer, the Trustee, the
Paying Agent, the Backup Servicer and the Certificate Registrar and any agent
of the Depositor, the Seller, the Servicer, the Trustee, the Paying Agent or
the Certificate Registrar may treat the person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Depositor,
the Seller, the Servicer, the Trustee, the Paying Agent, the Certificate
Registrar, the Backup Servicer nor any such agent shall be affected by any
notice to the contrary.
B-3
IN WITNESS WHEREOF, Origen Manufactured Housing Contract
Senior/Subordinate Asset-Backed Certificate Trust 2002-A has caused this
Certificate to be duly executed by the manual signature of a duly authorized
officer of the Trustee.
Dated: ORIGEN MANUFACTURED HOUSING
CONTRACT TRUST 2002-A
Dated: ORIGEN MANUFACTURED HOUSING
CONTRACT TRUST 2002-A
By Bank One, National Association
By _____________________________
Authorized Signatory
This is one of the Class M-[] Certificates
referenced in the within-mentioned Agreement
By ___________________________________
Authorized Officer of
Bank One, National Association, as Trustee
B-4
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto _____________________________ the within Origen
Manufactured Housing Contract Senior/Subordinate Asset-Backed Certificate and
does hereby irrevocably constitute and appoint _____________________________
Attorney to transfer the said certificate on the Certificate Register
maintained by the Trustee, with full power of substitution in the premises.
Dated: By _______________________
Signature
B-5
EXHIBIT C-1
-----------
FORM OF CLASS B-1 CERTIFICATE
-----------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS
CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D
OF THE INTERNAL REVENUE CODE.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
Class A CERTIFICATES, THE CLASS M-1 CERTIFICATES AND THE CLASS M-2
CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE MAY NOT BE RESOLD OR TRANSFERRED EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 9.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
Class B-1 No.
(Subordinate)
Cut-off Date: as defined in the Pooling and Pass-Through Rate: Lesser of __% per annum and the Weighted
Servicing Agreement Average Net Contract Rate
dated as of Xxxxx 0, 0000
Xxxxxxxxxxxx: $_______
First Distribution Date:
April 15, 0000 Xxxxxxxxx Xxxxxxxxxxxx of
All Class B-1 Certificates:
$---------------
Servicer:
Origen Financial L.L.C. Maturity Date: [_________]
(or if such day is not a
Business Day, then the next
succeeding Business Day)
CUSIP: _____
ORIGEN MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE
ASSET-BACKED CERTIFICATES, SERIES 2002-A, CLASS B-1 (SUBORDINATE)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN
INTEREST IN THE DEPOSITOR, THE SELLER, THE TRUSTEE OR ANY AFFILIATE THEREOF,
EXCEPT TO THE EXTENT SET FORTH IN THE AGREEMENT.
C-1-1
This certifies that Cede & Co. is the registered owner of
the undivided Percentage Interest represented by the original principal amount
set forth above in Origen Manufactured Housing Contract Senior/Subordinate
Asset-Backed Certificate Trust 2002-A (the "Trust"), which includes among its
assets a pool of manufactured housing installment sale contracts and
installment loan agreements (including, without limitation, all related
security interests and any and all rights to receive payments which are due
pursuant thereto after the Cut-off Date). The Trust has been created pursuant
to a Pooling and Servicing Agreement (the "Agreement"), dated as of March 1,
2002, among Asset Backed Securities Corporation, as depositor, Origen
Financial L.L.C., as seller and servicer (in such capacities, the "Seller" and
the "Servicer"), Vanderbilt Mortgage and Finance, Inc., as backup servicer
(the "Backup Servicer"), and Bank One, National Association, as Trustee of the
Trust (the "Trustee"). This Certificate is one of the Certificates described
in the Agreement and is issued pursuant and subject to the Agreement. By
acceptance of this Certificate the holder assents to and becomes bound by the
Agreement. To the extent not defined herein, all capitalized terms have the
meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on
the fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Distribution Date") of each month commencing in April 2002
so long as the Agreement has not been terminated, by check (or by wire
transfer pursuant to instructions delivered to the Trustee at least 10 days
prior to such Distribution Date) to the registered Certificateholder at the
address appearing on the Certificate Register as of the last Business Day of
the calendar month immediately preceding such Distribution Date, in an amount
equal to the Certificateholder's Percentage Interest of the Class B-1
Distribution Amount for such Distribution Date. The Maturity Date of this
Certificate is date listed as such on the first page hereof.
The Certificateholder, by its acceptance of this
Certificate, agrees that it will look solely to the funds in the Distribution
Account to the extent available for distribution to the Certificateholder as
provided in the Agreement for payment hereunder and that the Trustee is not
personally liable to the Certificateholder for any amounts payable under this
Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement. By acceptance of this
Certificate, the Certificateholder agrees to disclosure of his, her or its
name and address to other Certificateholders under the conditions specified in
the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all amendments thereto will be provided to any Certificateholder free of
charge upon a written request to the Trustee.
C-1-2
As provided in the Agreement and subject to the limitations
set forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at the Corporate Trust Office,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder thereof or
his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such
other name as requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
The Depositor, the Seller, the Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Seller, the Servicer, the Trustee, the Paying Agent, the Backup Servicer or
the Certificate Registrar may treat the person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Depositor,
the Seller, the Servicer, the Trustee, the Paying Agent, the Certificate
Registrar, the Backup Servicer nor any such agent shall be affected by any
notice to the contrary.
C-1-3
IN WITNESS WHEREOF, Origen Manufactured Housing Contract
Senior/Subordinate Asset-Backed Certificate Trust 2002-A has caused this
Certificate to be duly executed by the manual signature of a duly authorized
officer of the Trustee.
Dated: ORIGEN MANUFACTURED HOUSING
CONTRACT TRUST 2002-A
By Bank One, National Association
By ___________________________
Authorized Signatory
This is one of the Class B-1 Certificates
referenced in the within-mentioned Agreement
By ___________________________________
Authorized Officer of
Bank One, National Association, as Trustee
C-1-4
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto ______________________________ the within Manufactured
Housing Contract Asset Backed Certificate and does hereby irrevocably
constitute and appoint ______________________________ Attorney to transfer the
said certificate on the Certificate Register maintained by the Trustee, with
full power of substitution in the premises.
Dated: By _______________________
Signature
C-1-5
EXHIBIT C-2
-----------
FORM OF CLASS X CERTIFICATE
---------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS
CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D
OF THE INTERNAL REVENUE CODE.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
Class A CERTIFICATES, THE CLASS M CERTIFICATES AND THE CLASS B CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO
SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT
FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 9.02 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED, OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR AN OPINION OF
COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO
ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Class X No.
(Subordinate)
Cut-off Date: as defined in the Percentage Interest: ________%
Pooling and Servicing Agreement
dated as of March 1, 2002
Maturity Date:
First Distribution Date: (or if such day is not a
April 15, 2002 Business Day, then the next
succeeding Business Day)
C-2-1
Servicer:
Origen Financial L.L.C.
ORIGEN MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE
ASSET-BACKED CERTIFICATES, SERIES 2002-A, CLASS X (SUBORDINATE)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN
INTEREST IN THE DEPOSITOR, THE SELLER, THE TRUSTEE OR ANY AFFILIATE THEREOF,
EXCEPT TO THE EXTENT SET FORTH IN THE AGREEMENT.
This certifies that [ ] is the registered owner of the
undivided Percentage Interest set forth above in Origen Manufactured Housing
Contract Senior/Subordinate Asset-Backed Certificate Trust 2002-A (the
"Trust"), which includes among its assets a pool of manufactured housing
installment sale contracts and installment loan agreements (including, without
limitation, all related security interests and any and all rights to receive
payments which are due pursuant thereto after the Cut-off Date). The Trust has
been created pursuant to a Pooling and Servicing Agreement (the "Agreement"),
dated as of March 1, 2002, among Asset Backed Securities Corporation, as
depositor, Origen Financial L.L.C., as seller and servicer (in such
capacities, the "Seller" and the "Servicer"), Vanderbilt Mortgage and Finance,
Inc., as backup servicer (the "Backup Servicer"), and Bank One, National
Association, as Trustee of the Trust (the "Trustee"). This Certificate is one
of the Certificates described in the Agreement and is issued pursuant and
subject to the Agreement. By acceptance of this Certificate the holder assents
to and becomes bound by the Agreement. To the extent not defined herein, all
capitalized terms have the meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on
the fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Distribution Date") of each related Due Period commencing
in April 2002 so long as the Agreement has not been terminated, by check (or
by wire transfer pursuant to instructions delivered to the Trustee at least 10
days prior to such Distribution Date) to the registered Certificateholder at
the address appearing on the Certificate Register as of the last Business Day
of the calendar month immediately preceding such Distribution Date, in an
amount equal to the Certificateholder's Percentage Interest of the Class X
Distribution Amount for such Distribution Date. The Maturity Date of this
Certificate is the date listed as such on the first page hereof.
THIS CERTIFICATE IS AN INTEREST ONLY CERTIFICATE. THE HOLDER
OF THIS CERTIFICATE SHALL NOT BE ENTITLED TO ANY DISTRIBUTIONS OF PRINCIPAL
WITH RESPECT TO THE CONTRACTS.
The Certificateholder, by its acceptance of this
Certificate, agrees that it will look solely to the funds in the Distribution
Account to the extent available for distribution to the Certificateholder as
provided in the Agreement for payment hereunder and that the Trustee is not
personally liable to the Certificateholder for any amounts payable under this
Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement. By acceptance of this
Certificate, the Certificateholder agrees to disclosure of his, her or its
name and address to other Certificateholders under the conditions specified in
the Agreement.
C-2-2
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all amendments thereto will be provided to any Certificateholder free of
charge upon a written request to the Trustee.
No transfer of a Certificate of this Class shall be made
unless such transfer is made pursuant to an effective registration statement
under the Securities Act and any applicable state securities laws or is exempt
from the registration requirements under said Act and such laws. In the event
that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
transfer and such Certificateholder's prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding the
transfer. In the event that such a transfer is not to be made pursuant to Rule
144A of the Securities Act, there shall be delivered to the Trustee and the
Depositor of an Opinion of Counsel that such transfer may be made pursuant to
an exemption from the Securities Act, which Opinion of Counsel shall not be
obtained at the expense of the Trustee, the Seller or the Depositor; or there
shall be delivered to the Trustee and the Depositor a transferor certificate
by the transferor and an investment letter shall be executed by the
transferee. The Holder hereof desiring to effect such transfer shall, and does
hereby agree to, indemnify the Trustee and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
No transfer of a Certificate of this Class shall be made
unless the Trustee shall have received either (i) a representation letter from
the transferee of such Certificate, acceptable to and in form satisfactory to
the Trustee, to the effect that such transferee is not an employee benefit
plan subject to Section 406 of ERISA or Section 4975 of the Code, nor a person
acting on behalf of or investing plan assets of any such plan, which
representation letter shall not be an expense of the Trustee, or (ii) an
Opinion of Counsel in accordance with the provisions of the Agreement.
Notwithstanding anything else to the contrary herein, any purported transfer
of a Certificate of this Class to or on behalf of an employee benefit plan
subject to ERISA or to the Code without the opinion of counsel satisfactory to
the Trustee as described above shall be void and of no effect.
As provided in the Agreement and subject to the limitations
set forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at the Corporate Trust Office,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder thereof or
his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
The Depositor, the Seller, the Servicer, the Trustee, the
Paying Agent, the Backup Servicer and the Certificate Registrar and any agent
of the Depositor, the Seller, the Servicer, the Trustee, the Paying Agent, the
Backup Servicer or the Certificate Registrar may treat the person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the
C-2-3
Depositor, the Seller, the Servicer, the Trustee, the Paying Agent, the
Certificate Registrar, the Backup Servicer nor any such agent shall be
affected by any notice to the contrary.
C-2-4
IN WITNESS WHEREOF, Origen Manufactured Housing Contract
Senior/Subordinate Asset-Backed Certificate Trust 2002-A has caused this
Certificate to be duly executed by the manual signature of a duly authorized
officer of the Trustee.
Dated: ORIGEN MANUFACTURED HOUSING
CONTRACT TRUST 2002-A
By Bank One, National Association
By ___________________________________
Authorized Signatory
This is one of the Class X Certificates
referenced in the within-mentioned Agreement
By ___________________________________
Authorized Officer of
Bank One, National Association, as Trustee
C-2-5
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto ______________________________ the within Origen
Manufactured Housing Contract Senior/Subordinate Asset-Backed Certificate and
does hereby irrevocably constitute and appoint ______________________________
Attorney to transfer the said certificate on the Certificate Register
maintained by the Trustee, with full power of substitution in the premises.
Dated: By _____________________________
Signature
C-2-6
EXHIBIT C-3
-----------
FORM OF CLASS R CERTIFICATE
---------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS
CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE REPRESENTS THE "TAX MATTERS PERSON
RESIDUAL INTEREST" ISSUED UNDER THE AGREEMENT REFERRED TO BELOW AND MAY NOT BE
TRANSFERRED TO ANY PERSON EXCEPT IN CONNECTION WITH THE ASSUMPTION BY THE
TRANSFEREE OF CERTAIN DUTIES SPECIFIED IN THE AGREEMENT.]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
Class A CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS B CERTIFICATES AND
THE CLASS X CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO
SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT
FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 9.02 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CLASS R CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT
BEAR INTEREST AND WILL NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED
HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED, OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR AN OPINION OF
COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING
C-3-1
ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS
CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO
THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Class R No.
(Subordinate)
Cut-off Date: as defined in the Percentage Interest: ________%
Pooling and Servicing Agreement
dated as of March 1, 2002
First Distribution Date:
April 15, 2002
Servicer:
Origen Financial L.L.C.
ORIGEN MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE
ASSET-BACKED CERTIFICATES, SERIES 2002-A, CLASS R (SUBORDINATE)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN
INTEREST IN THE DEPOSITOR, THE SELLER, THE TRUSTEE OR ANY AFFILIATE THEREOF,
EXCEPT TO THE EXTENT SET FORTH IN THE AGREEMENT.
This certifies that [ ] is the registered owner of the
undivided Percentage Interest set forth above in Origen Manufactured Housing
Contract Senior/Subordinate Asset-Backed Certificate Trust 2002-A (the
"Trust"), which includes among its assets a pool of manufactured housing
installment sale contracts and installment loan agreements (including, without
limitation, all related security interests and any and all rights to receive
payments which are due pursuant thereto after the Cut-off Date). The Trust has
been created pursuant to a Pooling and Servicing Agreement (the "Agreement"),
dated as of March 1, 2002, among Asset Backed Securities Corporation, as
depositor, Origen Financial L.L.C., as seller and servicer (in such
capacities, the "Seller" and the "Servicer"), Vanderbilt Mortgage and Finance,
Inc., as backup servicer (the "Backup Servicer"), and Bank One, National
Association, as Trustee of the Trust (the "Trustee"). This Certificate is one
of the Certificates described in the Agreement and is issued pursuant and
subject to the Agreement. By acceptance of this Certificate the holder assents
to and becomes bound by the Agreement. To the extent not defined herein, all
capitalized terms have the meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on
the fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Distribution Date") of each related Due Period commencing
in April 2002 so long as the Agreement has not been terminated, by check (or
by wire transfer pursuant to instructions delivered to the Trustee at least 10
days prior to such Distribution Date) to the registered Certificateholder at
the address appearing on the Certificate Register as of the last Business Day
of the calendar month immediately preceding such Distribution Date, in an
amount equal to the Certificateholder's
C-3-2
Percentage Interest of any amount distributable to the Class R Certificates
for such Distribution Date.
THIS CERTIFICATE IS AN INTEREST ONLY CERTIFICATE. THE HOLDER
OF THIS CERTIFICATE SHALL NOT BE ENTITLED TO ANY DISTRIBUTIONS OF PRINCIPAL
WITH RESPECT TO THE CONTRACTS.
The Certificateholder, by its acceptance of this
Certificate, agrees that it will look solely to the funds in the Distribution
Account to the extent available for distribution to the Certificateholder as
provided in the Agreement for payment hereunder and that the Trustee in its
individual capacity is not personally liable to the Certificateholder for any
amounts payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement. By acceptance of this Certificate, the Certificateholder agrees to
disclosure of his, her or its name and address to other Certificateholders
under the conditions specified in the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all amendments thereto will be provided to any Certificateholder free of
charge upon a written request to the Trustee.
No distributions are expected to be made on this
Certificate. This Certificate does not have a principal balance or
pass-through rate and will be entitled to distributions only to the extent set
forth in the Agreement. In addition, any distribution of the proceeds of any
remaining assets of the Trust will be made only upon presentment and surrender
of this Certificate at the Corporate Trust Office.
No transfer of a Certificate of this Class shall be made
unless such transfer is made pursuant to an effective registration statement
under the Securities Act and any applicable state securities laws or is exempt
from the registration requirements under said Act and such laws. In the event
that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
transfer and such Certificateholder's prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding the
transfer. In the event that such a transfer is not to be made pursuant to Rule
144A of the Securities Act, there shall be delivered to the Trustee and the
Depositor of an Opinion of Counsel that such transfer may be made pursuant to
an exemption from the Securities Act, which Opinion of Counsel shall not be
obtained at the expense of the Trustee, the Seller or the Depositor; or there
shall be delivered to the Trustee and the Depositor a transferor certificate
by the transferor and an investment letter shall be executed by the
transferee. The Holder hereof desiring to effect such transfer shall, and does
hereby agree to, indemnify the Trustee and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
No transfer of a Certificate of this Class shall be made
unless the Trustee shall have received either (i) a representation letter from
the transferee of such Certificate, acceptable
C-3-3
to and in form satisfactory to the Trustee, to the effect that such transferee
is not an employee benefit plan subject to Section 406 of ERISA or Section
4975 of the Code, nor a person acting on behalf of or investing plan assets of
any such plan, which representation letter shall not be an expense of the
Trustee, or (ii) an Opinion of Counsel in accordance with the provisions of
the Agreement. Notwithstanding anything else to the contrary herein, any
purported transfer of a Certificate of this Class to or on behalf of an
employee benefit plan subject to ERISA or to the Code without the opinion of
counsel satisfactory to the Trustee as described above shall be void and of no
effect.
Each Holder of this Certificate will be deemed to have
agreed to be bound by the restrictions of the Agreement, including but not
limited to the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Certificate may be transferred without delivery to
the Trustee of (a) a transfer affidavit of the proposed transferee and (b) a
transfer certificate of the transferor, each of such documents to be in the
form described in the Agreement, (iii) each person holding or acquiring any
Ownership Interest in this Certificate must agree to require a transfer
affidavit and to deliver a transfer certificate to the Trustee as required
pursuant to the Agreement, (iv) each person holding or acquiring an Ownership
Interest in this Certificate must agree not to transfer an Ownership Interest
in this Certificate if it has actual knowledge that the proposed transferee is
not a Permitted Transferee and (v) any attempted or purported transfer of any
Ownership Interest in this Certificate in violation of such restrictions will
be absolutely null and void and will vest no rights in the purported
transferee. The Trustee will provide the Internal Revenue Service and any
pertinent persons with the information needed to compute the tax imposed under
the applicable tax laws on transfers of residual interests to disqualified
organizations, if any person other than a Permitted Transferee acquires an
Ownership Interest on a Class R Certificate in violation of the restrictions
mentioned above.
As provided in the Agreement and subject to the limitations
set forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at the Corporate Trust Office,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder thereof or
his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
The Depositor, the Seller, the Servicer, the Trustee, the
Paying Agent, Backup Servicer and the Certificate Registrar and any agent of
the Depositor, the Seller, the Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor,
the Seller, the Servicer, the Trustee, the Paying Agent, the Certificate
Registrar, Backup Servicer nor any such agent shall be affected by any notice
to the contrary.
C-3-4
IN WITNESS WHEREOF, Manufactured Housing Contract Senior/
Subordinate Asset-Backed Certificate Trust 2002-A has caused this Certificate
to be duly executed by the manual signature of a duly authorized officer of
the Trustee.
Dated: ORIGEN MANUFACTURED HOUSING
CONTRACT TRUST 2002-A
By Bank One, National Association
By ___________________________________
Authorized Signatory
This is one of the Class R Certificates
referenced in the within-mentioned Agreement
By ___________________________________
Authorized Officer of
Bank One, National Association, as Trustee
C-3-5
EXHIBIT D
---------
FORM OF ASSIGNMENT
------------------
In accordance with the Pooling and Servicing Agreement (the
"Agreement"), dated as of March 1, 2002, among Asset Backed Securities
Corporation, as depositor, Origen Financial L.L.C., as seller and servicer (in
such capacities, the "Seller" and the "Servicer"), Vanderbilt Mortgage and
Finance, Inc., as backup servicer (the "Backup Servicer"), and Bank One,
National Association, as Trustee of the Trust (the "Trustee"), the Seller does
hereby transfer, assign, set over and otherwise convey to the Trustee (i) all
the right, title and interest of the Seller in and to the Contracts,
including, without limitation, all right, title and interest in and to the
Collateral Security and all rights to receive payments on or with respect to
the Contracts, (ii) all rights under every Hazard Insurance Policy relating to
a Manufactured Home securing a Contract for the benefit of the creditor of
such Contract, (iii) all rights of the Seller under the Transfer Agreement,
(iv) the proceeds from the Errors and Omissions Protection Policy and all
rights under any blanket hazard insurance policy to the extent they relate to
the Manufactured Homes, (v) all documents contained in the Contract Files and
the Land-and-Home Contract Files, and (vi) all proceeds and products in any
way derived from any of the foregoing. Capitalized terms used herein but not
defined herein have the meanings assigned to them in the Agreement.
This Assignment is made pursuant to and upon the
representation and warranties on the part of the undersigned contained in
Article III of the Agreement and no others.
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed this ___ day of March, 2002.
ORIGEN FINANCIAL L.L.C.
By _____________________________
[Name]
[Title]
D-1
EXHIBIT E
---------
FORM OF CERTIFICATE OF SECRETARY
--------------------------------
ORIGEN FINANCIAL L.L.C.
OFFICER'S CERTIFICATE
I, ______________ hereby certify that I am the duly elected
_________________ of Origen Financial L.L.C., and that as such I am duly
authorized to execute and deliver this certificate on behalf of Origen
Financial L.L.C. (the "Company") in connection with the Pooling and Servicing
Agreement (the "Agreement"), dated as of March 1, 2002, among Asset Backed
Securities Corporation, as depositor, Origen Financial L.L.C., as seller and
servicer (in such capacities, the "Seller" and the "Servicer"), Vanderbilt
Mortgage and Finance, Inc., as backup servicer (the "Backup Servicer"), and
Bank One, National Association, as Trustee of the Trust (the "Trustee"), and
the Underwriting Agreement relating to the Class A, Class M-1, Class M-2 and
Class B Certificates, dated March 6, 2002, (the "Underwriting Agreement"),
between Asset Backed Securities Corporation and Credit Suisse First Boston
Corporation (the "Underwriter") (all capitalized terms used herein without
definition having the respective meanings specified in the Pooling and
Servicing Agreement and the Underwriting Agreement) and further certify as
follows:
1. Attached hereto as Exhibits I and II, respectively, are true and correct
copies of the Certificate of Formation and [Restated] Bylaws of the
Company, together with all amendments thereto, both of which are in full
force and effect on the date hereof.
2. No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of the Company are pending or contemplated.
3. There is no litigation pending, or to our knowledge, threatened, which,
if determined adversely to the Company, would affect adversely the sale
of the Contracts, the execution, delivery or enforceability of the
Pooling and Servicing Agreement and the Transfer Agreement (the
"Transaction Documents"), or the ability of the Company to service and
administer the Contracts in accordance with the terms of the Pooling and
Servicing Agreement.
4. Each person who, as an officer or representative of the Company, signed
the Transaction Documents, or any other document delivered prior hereto
or on the date hereof in connection with the sale and servicing of the
Contracts in accordance with the Transaction Documents, was at the time
of such signing and is as of the date hereof duly elected or appointed,
qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents are their genuine
signatures.
5. Neither the execution and delivery by the Company of the Transaction
Documents, nor its compliance with the terms and provisions thereof, will
conflict with, or result in a breach of, any of the terms of, or
constitute a default under, any judgment, order, injunction or decree of
any domestic court or governmental authority to which the Company is
subject or any indenture, agreement, contract or commitment to which the
Company is a party or by which
E-1
it is bound, which conflict, breach or default presents a reasonable
possibility of having a materially adverse effect on the business or
operations of the Company. No UCC-1 financing statements or statements of
assignment listing the Company as debtor and describing any of the
Contracts as collateral other than the UCC-1 financing statement in favor
of the Trustee, have been signed on behalf of the Company and filed by
any person after ________________ and prior to the date hereof.
6. Attached hereto as Exhibit IV is a certified true copy of the resolutions
of the Members of the Company (the "Resolutions") adopted with respect to
the authorization of the Company to take such actions and enter into such
agreements as are necessary to sell and service the Contracts in
accordance with the Transaction Documents; said resolutions have not been
amended, modified, annulled or revoked and are in full force and effect
on the date hereof.
7. Each of the representations and warranties contained in Sections 3.01,
3.02, 3.04 and 3.05 of the Pooling and Servicing Agreement and Article
III of the Transfer Agreement are true and correct on and as of the date
hereof.
8. The Company has complied with all the agreements by which it is bound in
connection with the transactions contemplated by the Transaction
Documents, and has satisfied all the conditions on its part to be
performed or satisfied prior to the Closing Date in connection with the
transactions contemplated by the Transaction Documents.
9. The Transaction Documents have been duly executed by the Company pursuant
to and in compliance with the Resolutions.
10. No event with respect to the Company has occurred or is continuing which
would constitute an Event of Termination or an event that with notice or
lapse of time or both would become an Event of Termination under the
Pooling and Servicing Agreement.
IN WITNESS WHEREOF, I have affixed hereunto my signature
this ___ day of March, 2002.
ORIGEN FINANCIAL L.L.C.
By __________________________
[Name]
[Title]
E-2
EXHIBIT F
---------
FORM OF OPINION OF COUNSEL
--------------------------
The opinion of Counsel to Origen Financial L.L.C. (either
internal or special outside counsel) shall be to the effect that undefined
capitalized terms have the meanings set forth in the Pooling and Servicing
Agreement):
1. The Seller is a limited liability company formed, validly
existing and in good standing under the laws of the State of Delaware, with
power to execute, deliver and perform its obligations under the Pooling and
Servicing Agreement and the Transfer Agreement (collectively, the "Transaction
Documents").
2. The Transaction Documents have been duly authorized by
all requisite action, duly executed and delivered by the Seller, and
constitute the valid and binding obligations of the Seller enforceable in
accordance with their terms.
3. No consent, approval, authorization or order of any state
or federal court or governmental agency or body is required to be obtained by
the Seller for the consummation of the transactions contemplated by the
Transaction Documents, except such as may be required under blue sky laws
under any jurisdiction in connection with the offering of the Certificates by
the Underwriter pursuant to the Underwriting Agreement.
4. The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as now in effect, and the
Trust is not required to be registered as an investment company under the
Investment Company Act of 1940.
5. Neither the transfer of the Contracts by the Seller to
the Depositor, nor the assignment of the Seller's security interest on the
related Manufactured Homes, nor the issuance or sale of the Certificates, nor
the execution and delivery of the Transaction Documents, nor the consummation
of any other of the transactions contemplated in the Transaction Documents nor
the fulfillment of the terms of the Certificates or the Transaction Documents
by the Seller, will conflict with, or result in a breach, violation or
acceleration of, or constitute a default under, any term or provision of the
Certificate of Incorporation or Bylaws of the Seller or of any indenture or
other agreement or instrument known to us to which the Seller is a party or by
which it is bound, or result in a violation of, or contravene the terms of any
statute, order or regulation, applicable to the Seller, of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over it.
6. There are no actions or proceedings pending, nor to the
best of our knowledge, are there any investigations pending or overtly
threatened against the Seller before any court, administrative agency or other
tribunal (A) asserting the invalidity of the Transaction Documents, the
Certificates, the hazard or flood insurance policies applicable to any
Contracts or the Errors and Omissions Protection Policy, (B) seeking to
prevent the issuance of the Certificates or the consummation of any of the
transactions contemplated by the Transaction Documents, (C) which is likely
materially and adversely to affect the performance by the Seller of its
obligations under, or the validity or enforceability of, the Transaction
Documents or the
F-1
Certificates, or (D) seeking adversely to affect the federal income tax
attributes of the Certificates described in the Prospectus and the Prospectus
Supplement under the heading "Federal Income Tax Consequences."
7. Pursuant to the Transfer Agreement the Seller has
transferred to the Depositor all of the Seller's right, title and interest in
the Contracts, free and clear of any and all other assignments, encumbrances,
options, rights, claims, liens or security interests (except tax or possessory
liens) that may affect the right of the Depositor in and to such Contracts,
and has delivered the Land-and-Home Contract Files to the Trustee (as the
Depositor's designee) or its custodian. No filing or other action, other than
the filing of a financing statement on Form UCC-1 with the Secretary of State
of the State of [Delaware] identifying the Contracts as collateral and naming
the Seller as debtor and the Depositor as secured party, and the filing of
continuation statements as required by the Transfer Agreement, is necessary to
perfect as against third parties the assignment of the Contracts by the Seller
to the Depositor. We have separately provided you with our opinion concerning
whether such assignment could be recharacterized as a pledge rather than a
sale in the event the Seller became a debtor under the United States
Bankruptcy Code. However, in the event such assignment were recharacterized as
a pledge securing a loan from the Depositor to the Seller, it is our opinion
that the Depositor would be deemed to have a valid and perfected security
interest in the Initial and Additional Contracts and the proceeds thereof,
which security interest would be prior to any other security interest that may
be perfected under the Uniform Commercial Code as in effect in the State of
[Delaware] and over any "lien creditor" who becomes such after the Closing
Date, except that a subsequent purchaser of any Contract who gives new value
and takes possession thereof in the ordinary course of his business would have
priority over the Depositor's security interest in such Contracts, if such
purchaser acts without knowledge that such Contract was subject to a security
interest.
F-2
EXHIBIT G
---------
FORM OF TRUSTEE'S ACKNOWLEDGMENT
--------------------------------
Bank One, National Association, a national banking
association, acting as trustee (the "Trustee") of the trust created pursuant
to the Pooling and Servicing Agreement (the "Agreement"), dated as of March 1,
2002, among Asset Backed Securities Corporation, as depositor, Origen
Financial L.L.C., as seller and servicer (in such capacities, the "Seller" and
the "Servicer"), Vanderbilt Mortgage and Finance, Inc., as backup servicer
(the "Backup Servicer"), and Bank One, National Association, as Trustee of the
Trust (the "Trustee"), acknowledges, pursuant to Section 2.03(a) of the
Agreement, that the Trustee has received and holds in trust the Contracts
identified on the applicable List of Contracts and the related Contract Files
and Land-and-Home Contract Files.
The Trustee further acknowledges that the Trustee, directly
or through a custodian, will hold all rights, interests and proceeds in such
assets of the Trust for the use and benefit of all Certificateholders.
All capitalized terms used herein without definition having
the respective meanings specified in the Agreement.
IN WITNESS WHEREOF, Bank One, National Association, as
Trustee, has caused this acknowledgment to be executed by its duly authorized
officer as of the 27th day of March, 2002.
BANK ONE, NATIONAL ASSOCIATION
as Trustee
By ____________________________________________
Name
Title
G-1
EXHIBIT H
---------
FORM OF CUSTODIAN'S ACKNOWLEDGMENT
----------------------------------
Bank One, National Association, a national banking
association (the "Custodian") acting as Custodian under the Pooling and
Servicing Agreement (the "Agreement"), dated as of March 1, 2002, among Asset
Backed Securities Corporation, as depositor, Origen Financial L.L.C., as
seller and servicer (in such capacities, the "Seller" and the "Servicer"),
Vanderbilt Mortgage and Finance, Inc., as backup servicer (the "Backup
Servicer"), and Bank One, National Association, as Trustee of the Trust (the
"Trustee"), pursuant to which the Custodian holds on behalf of the Trustee the
"Contract Files" and the "Land-and-Home Contract Files," as described in the
Agreement, hereby acknowledges receipt of such Land-and-Home Contract Files,
except as noted on the exception list attached hereto as Schedule A. The
Custodian has reviewed the Contract Files and the Land-and-Home Contract Files
in accordance with the provisions of Section 2.04(b) of the Pooling and
Servicing Agreement and hereby certifies that the Contract Files and the
Land-and-Home Contract Files contain the documents described in the
definitions of "Contract File" and "Land-and-Home Contract File", subject to
the exceptions set forth on the attached Schedule A. The Custodian will not
otherwise review the Contracts and Land-and-Home Contract Files for compliance
with the terms of the Agreement.
IN WITNESS WHEREOF, Bank One, National Association has
caused this acknowledgment to be executed by its duly authorized officer as of
the ___ day of March, 2002.
Bank One, National Association,
as Trustee
By ____________________________________________
Its_________________________________________
Its ___________
H-1
EXHIBIT I
---------
FORM OF CERTIFICATE OF SERVICING OFFICER
----------------------------------------
ORIGEN FINANCIAL L.L.C.
The undersigned certifies that he is a [title] of Origen
Financial L.L.C., a Delaware limited liability company (the "Company"), and
that as such he is duly authorized to execute and deliver this certificate on
behalf of the Company pursuant to Section 6.02 of the Pooling and Servicing
Agreement (the "Agreement"), dated as of March 1, 2002, among Asset Backed
Securities Corporation, as depositor, Origen Financial L.L.C., as seller and
servicer (in such capacities, the "Seller" and the "Servicer"), Vanderbilt
Mortgage and Finance, Inc., as backup servicer (the "Backup Servicer"), and
Bank One, National Association, as Trustee of the Trust (the "Trustee") (all
capitalized terms used herein without definition having the respective
meanings specified in the Agreement), and further certifies that:
1. The Monthly Report for the period from
_____________________ to ___________________ attached to
this certificate is complete and accurate in accordance
with the requirements of Sections 6.01 and 6.02 of the
Agreement; and
2. As of the date hereof, no Event of Termination or
event that with notice or lapse of time or both would
become an Event of Termination has occurred.
IN WITNESS WHEREOF, I have affixed hereunto my signature
the ___ day of _________, ____.
ORIGEN FINANCIAL L.L.C.
By __________________________
[Name]
[Title]
I-1
EXHIBIT J
---------
FORM OF INVESTMENT LETTER [NON-RULE 144A]
-----------------------------------------
[DATE]
Asset Backed Securities Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Trustee]
[Trustee Address]
Re: Origen Manufactured Housing Contract Senior/
Subordinated Asset-Backed Certificates,
Series 2002-A, Class [R][X]
---------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above-captioned
Certificates, we certify that (a) we understand that the Certificates are not
being registered under the Securities Act of 1933, as amended (the "Act"), or
any state securities laws and are being transferred to us in a transaction
that is exempt from the registration requirements of the Act and any such
laws, (b) we are an "accredited investor," as defined in Regulation D under
the Act, and have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of investments
in the Certificates, (c) we have had the opportunity to ask questions of and
receive answers from the Depositor and the Seller concerning the purchase of
the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates, (d)
we are not an employee benefit plan that is subject to the Employee Retirement
Income Security Act of 1974, as amended, or a plan that is subject to Section
4975 of the Internal Revenue Code of 1986, as amended, nor are we acting on
behalf of or investing plan assets of any such plan, (e) we are acquiring the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with
clause (g) below), (f) we have not offered or sold any Certificates to, or
solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, or taken any
other action which would result in a violation of Section 5 of the Act, and
(g) we will not sell, transfer or otherwise dispose of any Certificates unless
(1) such sale, transfer or other disposition is made pursuant to an effective
registration statement under the Act or is exempt from such registration
requirements, and if requested, we will at our expense provide an opinion of
counsel satisfactory to the addressees of this Certificate that such sale,
transfer or other disposition may be made pursuant to an exemption from the
Act, (2) the purchaser or transferee of such Certificate has executed and
delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with
any conditions for transfer set forth in the Pooling Agreement.
J-1
Very truly yours,
[NAME OF TRANSFEREE]
By:_______________________
Authorized Officer
J-2
FORM OF RULE 144A LETTER
[DATE]
Asset Backed Securities Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Trustee]
[Trustee Address]
Re: Origen Manufactured Housing Contract Senior/
Subordinated Asset-Backed Certificates,
Series 2002-A, Class [R][X]
--------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates
we certify that (a) we understand that the Certificates are not being
registered under the Securities Act of 1933, as amended (the "Act"), or any
state securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
have had the opportunity to ask questions of and receive answers from the
Depositor and the Seller concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (c) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended, nor are we acting on behalf of or investing plan
assets of any such plan, (d) we have not, nor has anyone acting on our behalf
offered, transferred, pledged, sold or otherwise disposed of the Certificates,
any interest in the Certificates or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other disposition
of the Certificates, any interest in the Certificates or any other similar
security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Securities Act
or that would render the disposition of the Certificates a violation of
Section 5 of the Securities Act or require registration pursuant thereto, nor
will act, nor has authorized or will authorize any person to act, in such
manner with respect to the Certificates, (e) we are a "qualified institutional
buyer" as that term is defined in Rule 144A under the Securities Act and have
completed either of the forms of certification to that effect attached hereto
as Annex 1 or Annex 2. We are aware that the sale to us is being made in
reliance on Rule 144A. We are acquiring the Certificates for our own account
or for resale pursuant to Rule 144A and further, understand that such
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its own account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or transfer is being made in reliance
on Rule 144A, or (ii) pursuant to another exemption from registration under
the Securities Act.
J-3
Very truly yours,
[NAME OF TRANSFEREE]
By:_____________________________
Authorized Officer
J-4
ANNEX 1 TO EXHIBIT J
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
i. As indicated below, the undersigned is the President,
Chief Financial Officer, Senior Vice President or other executive officer of
the Buyer.
ii. In connection with purchases by the Buyer, the Buyer is
a "qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer
owned and/or invested on a discretionary basis $ 1 in securities (except for
the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a
corporation (other than a bank, savings and loan association
or similar institution), Massachusetts or similar business
trust, partnership, or charitable organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended.
___ Bank. The Buyer (a) is a national bank
or banking institution organized under the laws of any
State, territory or the District of Columbia, the business
of which is substantially confined to banking and is
supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Savings and Loan. The Buyer (a) is a
savings and loan association, building and loan association,
cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or
Federal authority having supervision over any such
institutions or is a foreign savings and loan association or
equivalent institution and (b) has an audited net worth of
at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto.
--------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
J-5
___ Broker-dealer. The Buyer is a
dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934.
___ Insurance Company. The Buyer is an
insurance company whose primary and predominant business
activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a
similar official or agency of a State, territory or the
District of Columbia.
___ State or Local Plan. The Buyer is
a plan established and maintained by a State, its
political subdivisions, or any agency or instrumentality
of the State or its political subdivisions, for the benefit
of its employees.
___ ERISA Plan. The Buyer is an employee
benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
___ Investment Advisor. The Buyer is
an investment advisor registered under the Investment
Advisors Act of 1940.
___ Small Business Investment Company.
Buyer is a small business investment company licensed by
the U.S. Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of 1958.
___ Business Development Company. Buyer
is a business development company as defined in Section
202(a)(22) of the Investment Advisors Act of 1940.
iii. The term "securities" as used herein does not include
(i) securities of issuers that are affiliated with the Buyer, (ii) securities
that are part of an unsold allotment to or subscription by the Buyer, if the
Buyer is a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
iv. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Buyer, the
Buyer used the cost of such securities to the Buyer and did not include any of
the securities referred to in the preceding paragraph, except (i) where the
Buyer reports its securities holdings in its financial statements on the basis
of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market. Further, in
determining such aggregate amount, the Buyer may have included securities
owned by subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in accordance
with generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such securities
were not included if the Buyer is a majority-owned, consolidated subsidiary of
another enterprise and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
J-6
v. The Buyer acknowledges that it is familiar with Rule 144A
and understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule 144A.
vi. Until the date of purchase of the Rule 144A Securities,
the Buyer will notify each of the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice is
given, the Buyer's purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Buyer is a bank or savings and loan is provided above, the
Buyer agrees that it will furnish to such parties updated annual financial
statements promptly after they become available.
-------------------------------------
Print Name of Buyer
By: ________________________________
Name:
Title:
Date: ____________________________
J-7
ANNEX 2 TO EXHIBIT J
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President,
Chief Financial Officer or Senior Vice President of the Buyer or, if the Buyer
is a "qualified institutional buyer" as that term is defined in Rule 144A
under the Securities Act of 1933, as amended ("Rule 144A") because Buyer is
part of a Family of Investment Companies (as defined below), is such an
officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in securities
(other than the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year. For purposes of determining the amount of
securities owned by the Buyer or the Buyer's Family of Investment Companies,
the cost of such securities was used, except (i) where the Buyer or the
Buyer's Family of Investment Companies reports its securities holdings in its
financial statements on the basis of their market value, and (ii) no current
information with respect to the cost of those securities has been published.
If clause (ii) in the preceding sentence applies, the securities may be valued
at market.
___ The Buyer owned $ in securities (other
than the excluded securities referred to below) as of the
end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
___ The Buyer is part of a Family of
Investment Companies which owned in the aggregate $ in
securities (other than the excluded securities referred to
below) as of the end of the Buyer's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that
have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed
by the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii)
currency, interest rate and commodity swaps.
J-8
5. The Buyer is familiar with Rule 144A and under-stands
that the parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the
undersigned will notify the parties listed in the Rule 144A Transferee
Certificate to which this certification relates of any changes in the
information and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
----------------------------------------------
Print Name of Buyer or Adviser
By: ___________________________________________
Name:
Title:
IF AN ADVISER:
----------------------------------------------
Print Name of Buyer or Adviser
Date:___________________________________________
J-9
EXHIBIT K
Form of Transferor Certificate
---------------------
Date
Asset Backed Securities Corporation
Eleven Madison Avenue
New York, New York 10010
[Trustee]
[Trustee's Address]
Re: Origen Manufactured Housing Contract
Senior/Subordinate Asset-Backed Certificates,
Series 2002-A, Class R,
--------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates
we certify that (a) we understand that the Certificates have not been
registered under the Securities Act of 1933, as amended (the "Act"), and are
being disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of a
Class R Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very truly yours,
________________________
Print Name of Transferor
By:______________________
Authorized Officer
K-1
EXHIBIT L-1
-----------
FORM OF CERTIFICATE REGARDING REPURCHASED CONTRACTS
---------------------------------------------------
ORIGEN FINANCIAL L.L.C.
CERTIFICATE REGARDING REPURCHASED CONTRACTS
The undersigned certifies that he is a [title] of Origen
Financial L.L.C., a Delaware limited liability company (the "Company"), and
that as such he is duly authorized to execute and deliver this certificate on
behalf of the Company pursuant to Section 3.06 of the Pooling and Servicing
Agreement (the "Agreement"), dated as of March 1, 2002, among Asset Backed
Securities Corporation, as depositor, Origen Financial L.L.C., as seller and
servicer (in such capacities, the "Seller" and the "Servicer"), Vanderbilt
Mortgage and Finance, Inc., as backup servicer (the "Backup Servicer"), and
Bank One, National Association, as Trustee of the Trust (the "Trustee") (all
capitalized terms used herein without definition having the respective
meanings specified in the Agreement), and further certifies that:
1. The Contracts on the attached schedule are
to be repurchased by the Company on the date hereof pursuant
to Section 3.06 of the Agreement.
2. Upon deposit of the Repurchase Price for such
Contracts, such Contracts may, pursuant to Section 3.06 of
the Agreement, be assigned by the Trustee to the Company.
IN WITNESS WHEREOF, I have affixed hereunto my signature this
___ day of _______, ____.
ORIGEN FINANCIAL L.L.C.
By _____________________
[Name]
[Title]
X-0-0
XXXXXXX X-0
-----------
FORM OF CERTIFICATE REGARDING SUBSTITUTED CONTRACTS
---------------------------------------------------
ORIGEN FINANCIAL L.L.C.
CERTIFICATE REGARDING SUBSTITUTED CONTRACTS
The undersigned certify that they are [title] and [title], of Origen
Financial L.L.C., a limited liability company formed under the laws of
Delaware ("the Company"), and that as such they are duly authorized to execute
and deliver this certificate on behalf of the Company pursuant to Section
3.06(b) of the Pooling and Servicing Agreement (the "Agreement"), dated as of
March 1, 2002, among Asset Backed Securities Corporation, as depositor, Origen
Financial L.L.C., as seller and servicer (in such capacities, the "Seller" and
the "Servicer"), Vanderbilt Mortgage and Finance, Inc., as backup servicer
(the "Backup Servicer"), and Bank One, National Association, as Trustee of the
Trust (the "Trustee") (all capitalized terms used herein without definition
having the respective meanings specified in the Agreement), and further
certify that:
1. The Contract and Contract File [or Land-and-Home
Contract File, as applicable] for each such Eligible
Substitute Contract [are being held by the Company, as
Servicer] have been delivered to [the Trustee or its
Custodian] [_________, the successor Servicer].
2. The Contracts on the attached schedule are to be
substituted on the date hereof pursuant to Section 3.06(b)
of the Agreement and each such Contract is an Eligible
Substitute Contract.
3. The UCC-1 financing statements in respect of the
Contracts to be substituted, in the form required by
Section 3.06 (b)(iii) of the Agreement, have been filed
with the appropriate offices.
4. (x) the Company shall have delivered to the
Trustee, or its Custodian, the related Land-and-Home
Contract Files; and
(y) the Company has delivered to the Trustee an
opinion of counsel satisfactory to the Trustee to the
effect that the Trustee holds a perfected first priority
lien in the real estate securing such Eligible Substitute
Contracts, or evidence of recordation of the assignment to
the Trustee on behalf of the Trust of each Mortgage
securing such Eligible Contracts.
5. There has been deposited in the Certificate
Account the amounts listed on the schedule attached hereto
as the amount by which the Principal Balance of each
Replaced Contract exceeds the Principal Balance of each
Contract being substituted therefor.
IN WITNESS WHEREOF, we have affixed hereunto our signatures this
___ day of _______ ____.
L-2-1
ORIGEN FINANCIAL L.L.C.
By _______________________
[Name]
[Title]
L-2-2
EXHIBIT M
---------
M-1
EXHIBIT N
---------
FORM OF MONTHLY REPORT
----------------------
Origen MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE
ASSET-BACKED CERTIFICATES, SERIES 2002-A
[AVAILABLE FROM TRUSTEE]
N-1
EXHIBIT O
[RESERVED]
O-1
EXHIBIT P
FORM OF ERISA REPRESENTATION LETTER
Bank One, National Association
[Address]
Re: Origen Manufactured Housing Contract Senior/
Subordinate Asset Backed Certificates,
Series 2002-A, Class [R][X] Certificates
----------------------------------------
Ladies and Gentlemen:
Reference is made to the pooling and servicing agreement,
dated as of March 1, 2002 (the "Pooling and Servicing Agreement") by and among
Asset Backed Securities Corporation, as Depositor, Origen Financial L.L.C., as
seller and servicer (in such capacities, the "Seller" and the "Servicer,"
respectively), Vanderbilt Mortgage and Finance, Inc., as backup servicer, and
Bank One, National Association, as trustee (the "Trustee"), pursuant to which
the Origen Manufactured Housing Contract Senior/Subordinate Asset Backed
Certificates, Series 2002-A, Class [R][X] (the "ERISA-Restricted
Certificates") were issued. Capitalized terms used herein but not defined
shall have the meanings given them in the Pooling and Servicing Agreement.
The undersigned intends to acquire the ERISA-Restricted
Certificates referenced above. The undersigned acknowledges that the
ERISA-Restricted Certificates may not be transferred except in accordance with
the transfer provisions of the Pooling and Servicing Agreement.
Pursuant to Section 9.02 of the Pooling and Servicing
Agreement, the undersigned hereby represents and warrants:
[ ] that it is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, or a plan
subject to Section 4975 of the Code, nor a person acting on
behalf of any such plan or arrangement or using the assets
of any such plan or arrangement to effect the transfer of
the ERISA-Restricted Certificates.
[ ] that it is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, or a plan
subject to Section 4975 of the Code, nor a person acting on
behalf of any such plan or arrangement nor using the assets
of any such plan or arrangement to effect the transfer of
the ERISA-Restricted Certificates.
[ ] that it is an employee benefit plan subject to
ERISA, or a plan or arrangement subject to Section 4975 of
the Code, or a trustee of any such plan or any other person
acting on behalf of any such plan or arrangement or using
such plan's or arrangement's assets; however, the
undersigned has provided an Opinion of Counsel satisfactory
to the Trustee to the effect that the purchase or
P-1
holding of the ERISA-Restricted Certificates by the
undersigned will not result in the assets of the Trust
being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA and the Code
and will not subject the Trustee to any obligation or
liability (including obligations or liabilities under
ERISA or Section 4975 of the Code) in addition to those
undertaken in the Pooling and Servicing Agreement.
--------------------------
By:
---------------------------
Name:
Title:
P-2
EXHIBIT Q
AFFIDAVIT OF TRANSFER OF RESIDUAL CERTIFICATES
PURSUANT TO SECTION 9.02(d)
ORIGEN MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE
Asset-Backed Certificates,
Series 2002-A
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of ___________, the proposed
Transferee of an Ownership Interest in a Class R Certificate (the
"Certificate") issued pursuant to the Pooling Agreement, (the "Agreement"),
relating to the above-referenced Series, among Asset Backed Securities
Corporation as Depositor (the "Depositor"), Origen Financial L.L.C., as Seller
and Servicer (in such capacities, the "Seller" and "Servicer"), Vanderbilt
Mortgage and Finance, Inc., as backup servicer, and Bank One, National
Association, as Trustee (the "Trustee"). Capitalized terms used, but not
defined herein or in Exhibit 1 hereto, shall have the meanings ascribed to
such terms in the Agreement. The Transferee has authorized the undersigned to
make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as
of the date of the Transfer, a Permitted Transferee. The Transferee is
acquiring its Ownership Interest in the Certificate for its own account.
3. The Transferee has been advised of, and understands that
(i) a tax will be imposed on Transfers of the Certificate to Persons that are
not Permitted Transferees; (ii) such tax will be imposed on the transferor;
and (iii) the Person otherwise liable for the tax shall be relieved of
liability for the tax if the subsequent Transferee furnished to such Person an
affidavit that such subsequent Transferee is a Permitted Transferee and, at
the time of Transfer, such Person does not have actual knowledge that the
affidavit is false.
In accordance with Revenue Procedure 2001-12, I.R.B. 2001-2
(December 8, 2000), the Transferee represents and warrants that one of the
following applies:
(i) the consideration paid to the Transferee for accepting the Class R
Certificates is greater than the present value of the anticipated net
federal income taxes and tax benefits ("Tax Liability Present Value")
associated with owning such Certificates, with such present value
computed using a discount rate equal to the "applicable federal rate"
prescribed by Section 1274 of the Internal Revenue Code as of the
date hereof (with all applicable computations done in accordance with
Rev. Proc. 2001-12) or, to the extent it is not, if the Transferee
has asserted that it regularly borrows, in the ordinary course of its
trade or business, substantial funds from
R-1
unrelated third parties at a lower interest rate than such
applicable federal rate and the consideration paid to the Transferee
is greater than the Tax Liability Present Value using such lower
interest rate as the discount rate, the transactions with the
unrelated third party lenders, the interest rate or rates, the date
or dates of such transactions, and the maturity dates or, in the
case of adjustable rate debt instruments, the relevant adjustment
dates or periods, with respect to such borrowings, are accurately
stated in Exhibit A to this letter; or
(ii)the Transferee (A) is an "eligible corporation" as defined in
Section 860L(a)(2) of the Internal Revenue Code, as to which the
income of Class R Certificates will only be subject to taxation in
the United States, (B) has, and has had in each of its two preceding
fiscal years, gross assets for financial reporting purposes
(excluding any obligation of a person related to the transferee
within the meaning of Section 860L of the Internal Revenue Code) in
excess of $100 million and net assets of $10 million, and (C) hereby
agrees only to transfer the Certificate to another corporation
meeting the criteria set forth in this letter.
4. The Transferee has been advised of, and understands that
a tax will be imposed on a "pass-through entity" holding the Certificate if at
any time during the taxable year of the pass-through entity a Person that is
not a Permitted Transferee is the record holder of an interest in such entity.
The Transferee understands that such tax will not be imposed for any period
with respect to which the record holder furnishes to the pass-through entity
an affidavit that such record holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is
false. (For this purpose, a "pass-through entity" includes a regulated
investment company, a real estate investment trust or common trust fund, a
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass-through
entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section
9.02(d) of the Agreement (attached hereto as Exhibit 2 and incorporated herein
by reference) and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by
and to abide by the provisions of Section 9.02(d) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit
from any Person to whom the Transferee attempts to Transfer its Ownership
Interest in the Certificate, and in connection with any Transfer by a Person
for whom the Transferee is acting as nominee, trustee or agent, and the
Transferee will not Transfer its Ownership Interest or cause any Ownership
Interest to be Transferred to any Person that the Transferee knows is not a
Permitted Transferee. In connection with any such Transfer by the Transferee,
the Transferee agrees to deliver to the Trustee a certificate substantially in
the form set forth as Exhibit K to the Agreement (a "Transferor Certificate")
to the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
Q-2
7. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect
to the Certificate.
8. The Transferee's taxpayer identification number is
______________.
9. The Transferee is a U.S. Person as defined in Code
Section 7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer was to impede the assessment or collection of tax.
11. The Transferee is not an employee benefit plan that is subject to
ERISA or a plan that is subject to Section 4975 of the Code, nor is it acting
on behalf of or investing plan assets of such a plan.
12. The Transferee has provided financial statements or other
financial information requested by the Transferor in connection with the
transfer of the Class R Certificates to permit the Transferor to assess the
financial capability of the Transferee to pay such taxes.
* * *
Q-3
IN WITNESS WHEREOF, the Transferee has caused this
instrument to be executed on its behalf, pursuant to authority of its Board of
Directors, by its duly authorized officer and its corporate seal to be
hereunto affixed, duly attested, this day of , 20 .
[NAME OF TRANSFEREE]
By:
--------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named ____________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the of the Transferee, and acknowledged that he executed
the same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ______day of _________,
20__.
_____________________________
NOTARY PUBLIC
My Commission expires the ___ day of
________, 20__.
Q-4
EXHIBIT 1 to EXHIBIT Q
Certain Definitions
-------------------
"Ownership Interest" means as to any Certificate or security
interest in such Certificate, any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial, as owner or as pledgee.
"Permitted Transferee" means any Person other than (i) the
United States, any State or any political subdivision thereof or any agency or
instrumentality of any of the foregoing, (ii) a foreign government,
international organization or any agency or instrumentality of either of the
foregoing, (iii) an organization which is exempt from tax imposed by Chapter 1
of the Code (including the tax imposed by section 511 of the Code on unrelated
business taxable income) (except certain farmers' cooperatives described in
Code section 521) on any excess inclusions (as defined in Section 860E(c)(1))
with respect to any Class R Certificate, (iv) rural electric and telephone
cooperatives described in Code section 1381(a)(2)(C), (v) a Person that is not
a citizen or resident of the United States, a corporation, partnership or
other entity created or organized in or under the laws of the United States,
any state thereof or the District of Columbia, or an estate whose income from
sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the
conduct of a trade or business within the United States, or a trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States Persons have the
authority to control all substantial decisions of the trust, (vi) an "electing
large partnership" within the meaning of Section 775 of the Code, and (vii)
any other Person so designated by the Trustee based on an Opinion of Counsel
to the effect that any transfer to such Person may cause the Trust to fail to
qualify as a REMIC at any time the Certificates are outstanding. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Code section 7701 or successor provisions. A corporation
will not be treated as an instrumentality of the United States or of any State
or political subdivision thereof if all of its activities are subject to tax
and, with the exception of the Xxxxxxx Mac, a majority of its board of
directors is not selected by such governmental unit.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
Q-5
EXHIBIT 2 to EXHIBIT Q
Section 9.02(d) of the Agreement
--------------------------------
(d) Except with respect to the initial transfer of the Class X and
Class R Certificates (together, the "Private Certificates") by
the Depositor to the Seller, no transfer, sale, pledge or other
disposition of any Private Certificate shall be made unless (x)
except to the extent such transfer is made to an entity the
equity of which is owned by the Seller or an affiliate of the
Seller, and (y) such disposition is exempt from the
registration requirements of the Securities Act of 1933, as
amended (the "1933 Act"), and any applicable state securities
laws or is made in accordance with the 1933 Act and laws. In
the event of any such transfer, other than the transfer of the
Tax Matters Person Residual Interest (i) unless such transfer
is made in reliance upon Rule 144A (as evidenced by the
investment letter delivered to the Trustee, in substantially
the form attached hereto as Exhibit J) under the 1933 Act, the
Trustee and the Depositor shall require a written Opinion of
Counsel (which may be in-house counsel) acceptable to and in
form reasonably satisfactory to the Trustee and the Depositor
that such transfer may be made pursuant to an exemption,
describing the applicable exemption and the basis therefor,
from the 1933 Act or is being made pursuant to the 1933 Act,
which Opinion of Counsel shall not be an expense of the Trustee
or the Depositor or (ii) the Trustee shall require the
transferor to execute a transferor certificate (in
substantially the form attached hereto as Exhibit K) and the
transferee to execute an investment letter (in substantially
the form attached hereto as Exhibit J) acceptable to and in
form reasonably satisfactory to the Depositor and the Trustee
certifying to the Depositor and the Trustee the facts
surrounding such transfer, which investment letter shall not be
an expense of the Trustee or the Depositor. The Holder of a
Private Certificate desiring to effect such transfer shall, and
does hereby agree to, indemnify the Trustee and the Depositor
against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state
laws.
No transfer of an ERISA-Restricted Certificate shall be made
unless the Trustee shall have received either (i) a representation from the
transferee of such Certificate, acceptable to and in form satisfactory to the
Trustee and the Depositor, (such requirement is satisfied by the Trustee's
receipt of a representation letter from the transferee substantially in the
form of Exhibit P hereto, as appropriate), to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA
or a plan subject to Section 4975 of the Code, nor a person acting on behalf
of any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such transfer or (ii) in the case of an ERISA Restricted
Certificate that has been the subject of an ERISA-Qualifying Underwriting, if
the purchaser is an insurance company, a representation that the purchaser is
an insurance company which is purchasing such Certificates with funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificates are covered
under Sections I and III of PTCE 95-60 or (iii) in the case of any such
ERISA-Restricted Certificate presented for registration in the name of an
employee benefit plan subject to ERISA or a plan or arrangement subject to
Q-6
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan or arrangement or using such plan's or arrangement's
assets, an Opinion of Counsel in form and substance satisfactory to the
Trustee which Opinion of Counsel shall not be an expense of either the Trustee
or the Trust, addressed to the Trustee, to the effect that the purchase or
holding of such ERISA-Restricted Certificate will not result in the assets of
the Trust being deemed to be "plan assets" and subject to the prohibited
transaction provisions of ERISA and the Code and will not subject the Trustee
to any obligation in addition to those expressly undertaken in this Agreement
or to any liability. For purposes of clause (i) and (ii) of the preceding
sentence, such representation shall be deemed to have been made to the Trustee
by the transferee's acceptance of an ERISA-Restricted Certificate (or the
acceptance by a Certificate Owner of the beneficial interest in any such Class
of ERISA-Restricted Certificates) in book-entry form unless the Trustee shall
have received from the transferee an alternative representation acceptable in
form and substance to the Depositor or an Opinion of Counsel described in
clause (iii). Notwithstanding anything else to the contrary herein, any
purported transfer of an ERISA-Restricted Certificate to or on behalf of an
employee benefit plan subject to Section 406 of ERISA or a plan subject to
Section 4975 of the Code without the delivery to the Trustee of an Opinion of
Counsel in form and substance satisfactory to the Trustee as described above
shall be void and of no effect. The Trustee shall be under no liability to any
Person for any registration of transfer of any ERISA-Restricted Certificate
that is in fact not permitted by this Section 9.02(d) or for making any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the transfer was registered by the Trustee in accordance with the
foregoing requirements. The Trustee shall be entitled, but not obligated, to
recover from any Holder of any ERISA-Restricted Certificate that was in fact
an employee benefit plan subject to Section 406 of ERISA or a plan subject to
Section 4975 of the Code or a Person acting on behalf of any such plan at the
time it became a Holder or, at such subsequent time as it became such a plan
or Person acting on behalf of such a plan, all payments made on such
ERISA-Restricted Certificate at and after either such time. Any such payments
so recovered by the Trustee shall be paid and delivered by the Trustee to the
last preceding Holder of such Certificate that is not such a plan or Person
acting on behalf of a plan.
Each Person who has or who acquires any Ownership Interest
in a Class R Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably appointed the Depositor or its designee as its
attorney-in-fact to negotiate the terms of any mandatory sale under clause (v)
below and to execute all instruments of transfer and to do all other things
necessary in connection with any such sale, and the rights of each Person
acquiring any Ownership Interest in a Class R Certificate are expressly
subject to the following provisions:
(i) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate shall be a Permitted
Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted
Transferee.
(ii) No Person shall acquire an Ownership Interest
in a Class R Certificate unless such Ownership Interest is a
pro rata undivided interest.
Q-7
(iii) In connection with any proposed transfer of
any Ownership Interest in a Class R Certificate, the Trustee
shall as a condition to registration of the transfer,
require delivery to it, in form satisfactory to it, of each
of the following:
A. an affidavit in the form of Exhibit Q
hereto from the proposed transferee to the effect
that such transferee is a Permitted Transferee and
that it is not acquiring its Ownership Interest in
the Class R Certificate that is the subject of the
proposed transfer as a nominee, trustee or agent
for any Person who is not a Permitted Transferee;
and
B. a covenant of the proposed transferee
to the effect that the proposed transferee agrees
to be bound by and to abide by the transfer
restrictions applicable to the Class R
Certificates.
(iv) Any attempted or purported transfer of any
Ownership Interest in a Class R Certificate in violation of
the provisions of this Section shall be absolutely null and
void and shall vest no rights in the purported transferee.
If any purported transferee shall, in violation of the
provisions of this Section, become a Holder of a Class R
Certificate, then the prior Holder of such Class R
Certificate that is a Permitted Transferee shall, upon
discovery that the registration of transfer of such Class R
Certificate was not in fact permitted by this Section, be
restored to all rights as Holder thereof retroactive to the
date of registration of transfer of such Class R
Certificate. The Trustee shall be under no liability to any
Person for any registration of transfer of a Class R
Certificate that is in fact not permitted by this Section or
for making any distributions due on such Class R Certificate
to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this
Agreement so long as the Trustee received the documents
specified in clause (iii). The Trustee shall be entitled to
recover from any Holder of a Class R Certificate that was in
fact not a Permitted Transferee at the time such
distributions were made all distributions made on such Class
R Certificate. Any such distributions so recovered by the
Trustee shall be distributed and delivered by the Trustee to
the prior Holder of such Class R Certificate that is a
Permitted Transferee.
(v) If any Person other than a Permitted Transferee
acquires any Ownership Interest in a Class R Certificate in
violation of the restrictions in this Section, then the
Trustee shall have the right but not the obligation, without
notice to the Holder of such Class R Certificate or any
other Person having an Ownership Interest therein, to notify
the Depositor to arrange for the sale of such Class R
Certificate. The proceeds of such sale, net of commissions
(which may include commissions payable to the Depositor or
its affiliates in connection with such sale), expenses and
taxes due, if any, will be remitted by the Trustee to the
previous Holder of such Class R Certificate that is a
Permitted Transferee, except that in the event that the
Trustee determines that the Holder of such Class R
Certificate may be liable for any amount due under this
Section or any other provisions of this Agreement, the
Trustee may withhold a corresponding amount
Q-8
from such remittance as security for such claim. The terms
and conditions of any sale under this clause (v) shall be
determined in the sole discretion of the Trustee and it
shall not be liable to any Person having an Ownership
Interest in a Class R Certificate as a result of its
exercise of such discretion.
(vi) If any Person other than a Permitted
Transferee acquires any Ownership Interest in a Class R
Certificate in violation of the restrictions in this
Section, then the Trustee will provide to the Internal
Revenue Service, and to the persons specified in Sections
860E(e)(3) and (6) of the Code, information needed to
compute the tax imposed under Section 860E(e)(5) of the Code
on transfers of residual interests to disqualified
organizations.
The foregoing provisions of this Section shall cease to apply to transfers
occurring on or after the date on which there shall have been delivered to the
Trustee, in form satisfactory to the Trustee, (i) written notification from
each Rating Agency that the removal of the restrictions on transfer set forth
in this Section will not cause such Rating Agency to downgrade its rating of
the Certificates and (ii) an Opinion of Counsel to the effect that such
removal will not cause the Trust to fail to qualify as a REMIC. The Servicer
shall be the initial holder of the Tax Matter Person Residual Interest.
Q-9
EXHIBIT R
Ineligible Foreclosure Property Contract Schedule
-------------------------------------------------
[to be prepared by Origen Financial L.L.C. within 15 days of the Closing Date]
R-1
