Exhibit 99.1
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ORIGEN SERVICING, INC.,
as Servicer and Administrator,
VANDERBILT MORTGAGE AND FINANCE, INC.,
as Backup Servicer
ORIGEN MANUFACTURED HOUSING CONTRACT TRUST 2004-A,
as Issuer
and
JPMORGAN CHASE BANK,
as Indenture Trustee,
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SERVICING AGREEMENT
Dated as of February 1, 2004
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Manufactured Housing Installment Sales Contracts
and Installment Loan Agreements
Origen Manufactured Housing Contract Trust 2004-A
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions..............................................................................................2
Section 1.01 Definitions................................................................................2
Section 1.02 Other Definitional Provisions..............................................................2
Section 1.03 Interest Calculations......................................................................2
ARTICLE II
Representations and Warranties...........................................................................3
Section 2.01 Covenants, Representations and Warranties Regarding the Servicer
........................................................................................................3
Section 2.02 Existence..................................................................................4
Section 2.03 Enforcement of Representations and Warranties..............................................4
ARTICLE III
Administration and Servicing of Contracts................................................................6
Section 3.01. Responsibility for Contract Administration................................................6
Section 3.02. Standard of Care..........................................................................6
Section 3.03. Records...................................................................................6
Section 3.04. Inspection; Computer Tape.................................................................6
Section 3.05. Collection Account........................................................................7
Section 3.06. Permitted Withdrawals.....................................................................8
Section 3.07. Enforcement...............................................................................9
Section 3.08. Indenture Trustee to Cooperate...........................................................10
Section 3.09. Costs and Expenses.......................................................................11
Section 3.10. Maintenance of Insurance.................................................................11
Section 3.11. Repossession.............................................................................12
Section 3.12. Subservicing Arrangements................................................................13
Section 3.13. Retitling; Security Interests............................................................13
Section 3.14. Payment of Taxes.........................................................................14
Section 3.15. Statement as to Compliance...............................................................14
Section 3.16. Independent Public Accountants' Servicing Report.........................................14
Section 3.17. Optional Redemption of Contracts.........................................................15
ARTICLE IV
Servicing Certificate...................................................................................16
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Section 4.01 Electronic Files..........................................................................16
ARTICLE V
The Servicer and the Backup Servicer....................................................................19
Section 5.01 Liability of the Servicer and the Backup Servicer.........................................19
Section 5.02 Merger or Consolidation of or Assumption of the Obligations of the Servicer
and the backup Servicer.................................................................................19
Section 5.03 Limitation on Liability of the Servicer and Others........................................19
Section 5.04 Servicer and Backup Servicer Not to Resign................................................20
Section 5.05 Delegation of Duties......................................................................21
Section 5.07 Indemnification...........................................................................21
ARTICLE VI
Default.................................................................................................22
Section 6.01. Servicer Events of Default............................................................22
Section 6.02. Transfer..............................................................................23
Section 6.03. Backup Servicer to Act, Appointment of Successor. Backup Servicer to Act,
Appointment of Successor................................................................................24
Section 6.04. Notification to Noteholders...........................................................24
Section 6.05. Effect of Transfer....................................................................25
Section 6.06. Transfer of Collection Account........................................................25
ARTICLE VII
Miscellaneous Provisions................................................................................26
Section 7.01 Amendment.................................................................................26
Section 7.02 GOVERNING LAW.............................................................................26
Section 7.03 Notices...................................................................................26
Section 7.04 Severability of Provisions................................................................27
Section 7.05 Third-Party Beneficiaries.................................................................27
Section 7.06 Counterparts..............................................................................27
Section 7.07 Effect of Headings and Table of Contents..................................................28
Section 7.08 Termination...............................................................................28
Section 7.09 No Petition...............................................................................28
Section 7.10 No Recourse...............................................................................28
ARTICLE VIII
Duties of the Servicer as Administrator.................................................................29
Section 8.01 Administrative Duties.....................................................................29
Section 8.02 Records..................................................................................30
Section 8.03 Additional Information to be Furnished....................................................30
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EXHIBIT A
LIST OF CONTRACTS......................................................................................A-1
EXHIBIT B
FORM OF CERTIFICATE REGARDING REPURCHASED CONTRACTS
ORIGEN FINANCIAL L.L.C.
CERTIFICATE REGARDING REPURCHASED CONTRACTS............................................................B-1
EXHIBIT C-1
FORM OF CERTIFICATION TO BE PROVIDED BY THE ADMINISTRATOR WITH
FORM 10-K............................................................................................C-1-1
EXHIBIT C-2
FORM OF CERTIFICATION TO BE
PROVIDED TO THE ADMINISTRATOR BY THE INDENTURE TRUSTEE...............................................C-2-1
EXHIBIT C-3
FORM OF CERTIFICATION TO BE
PROVIDED TO THE ADMINISTRATOR BY THE SERVICER........................................................C-3-1
EXHIBIT D
OFFICER'S CERTIFICATE
REGARDING ANNUAL STATEMENT OF COMPLIANCE...............................................................D-1
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This Servicing Agreement, dated as of February 1, 2004, among
Origen Servicing, Inc., as Servicer (the "Servicer" ), Vanderbilt Mortgage and
Finance, Inc., as Backup Servicer (the "Backup Servicer"), Origen Manufactured
Housing Contract Trust 2004-A, as Issuer (the "Issuer") and JPMorgan Chase Bank,
as Indenture Trustee (the "Indenture Trustee").
W I T N E S S E T H T H A T :
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WHEREAS, pursuant to the terms of the Manufactured Housing
Contract Sale Agreement, Citigroup Mortgage Loan Trust Inc. (the "Depositor")
will acquire the Contracts;
WHEREAS, the Depositor will create Origen Manufactured Housing
Contract Trust 2004-A, a Delaware statutory trust, and will transfer the
Contracts and all of its rights under the Manufactured Housing Contract Sale
Agreement to the Issuer;
WHEREAS, pursuant to the terms of an Amended and Restated
Trust Agreement dated as of February 1, 2004 (the "Trust Agreement") among the
Depositor, as depositor, Wilmington Trust Company, as owner trustee (the "Owner
Trustee") and JPMorgan Chase Bank, as certificate registrar and certificate
paying agent, the Depositor will convey the Contracts to the Issuer in exchange
for the Certificates (as defined below);
WHEREAS, pursuant to the terms of the Trust Agreement, the
Issuer will issue and transfer to or at the direction of the Depositor, the
Trust Certificates, Series 2004-A (the "Certificates");
WHEREAS, pursuant to the terms of an Indenture dated as of
February 1, 2004 (the "Indenture") between the Issuer and JPMorgan Chase Bank
(the "Indenture Trustee"), the Issuer will pledge the Contracts and issue and
transfer to or at the direction of the Purchaser the Origen Manufactured Housing
Contract Trust Notes, Series 2004-A, Class A-1, Class X-0, Xxxxx X-0, Class A-4,
Class M-1 and Class M-2 Notes (collectively, the "Notes"); and
WHEREAS, pursuant to the terms of this Servicing Agreement,
the Servicer will service the Contracts set forth on the List of Contracts
attached hereto as Exhibit A directly or through one or more Sub-Servicers;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
Section 1.01 DEFINITIONS. For all purposes of this Servicing Agreement,
except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in the Definitions contained in Appendix A to the
Indenture which is incorporated by reference herein. All other capitalized terms
used herein shall have the meanings specified herein.
Section 1.02 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Servicing Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) As used in this Servicing Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Servicing Agreement or in any such certificate or other
document, and accounting terms partly defined in this Servicing Agreement or in
any such certificate or other document, to the extent not defined, shall have
the respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Servicing Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Servicing Agreement or in any such
certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Servicing Agreement shall refer to this Servicing
Agreement as a whole and not to any particular provision of this Servicing
Agreement; Section and Exhibit references contained in this Servicing Agreement
are references to Sections and Exhibits in or to this Servicing Agreement unless
otherwise specified; and the term "including" shall mean "including without
limitation".
(d) The definitions contained in this Servicing Agreement are
applicable to the singular as well as the plural forms of such terms and to the
masculine as well as the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
Section 1.03 INTEREST CALCULATIONS. All calculations of interest
hereunder that are made in respect of the Principal Balance of a Contract shall
be made on the basis of a 360-day year consisting of twelve 30-day months,
notwithstanding the terms of the related Mortgage Note and Mortgage.
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ARTICLE II
Representations and Warranties
Section 2.01 COVENANTS, REPRESENTATIONS AND WARRANTIES REGARDING THE
SERVICER. By its execution and delivery of this Agreement, Origen Servicing,
Inc., as initial Servicer, makes the following representations, warranties and
covenants as of the Closing Date 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; provided, that Origen Financial
L.L.C. will act as Sub-Servicer for Contracts secured by Manufactured
Homes located in jurisdictions where the Servicer does not hold the
requisite licenses.
(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;
provided, that Origen Financial L.L.C. will act as Sub-Servicer for
Contracts secured by Manufactured Homes located in jurisdictions where
the Servicer does not hold the requisite licenses.
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(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 00000 Xxxxxxxx Xxxx, Xxxxx 0000, 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
3.07.
Section 2.02 EXISTENCE. The Issuer will keep in full effect its
existence, rights and franchises as a statutory trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other state or of the United States of
America, in which case the Issuer will keep in full effect its existence, rights
and franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Servicing Agreement.
Section 2.03 ENFORCEMENT OF REPRESENTATIONS AND WARRANTIES. The
Servicer shall cause the Originator to 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 Originator, the Seller, the Servicer or the
Indenture Trustee first discovers a breach of a representation or warranty of
the Originator or the Seller set forth in Sections 3.1, 3.2, 3.3, 3.4 or 3.5 of
the Manufactured Housing Contract Sale Agreement that materially adversely
affects the Issuer's, the Noteholders' 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 Originator first becomes aware of such
breach, such discovering party shall notify the Originator 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 Originator would otherwise be required to
repurchase pursuant to this Section, the Servicer may cause the Originator, in
lieu of repurchasing such Contract, to deliver to the Servicer for deposit in
the Collection 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. Upon receipt by the Indenture Trustee of a
certificate of a Servicing Officer in the form attached hereto as Exhibit B, any
such cash so deposited shall be distributed to Noteholders and
Certificateholders on the immediately following Payment Date as a collection of
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principal on such Contract. Notwithstanding any other provision of this
Agreement, the obligation of the Servicer under this Section to enforce the
Originator's obligations pursuant to Article III of the Manufactured Housing
Contract Sale Agreement shall not terminate upon a Service Transfer pursuant to
Article VI. Notwithstanding the foregoing, the Servicer shall cause the
Originator to repurchase any Land-and-Home Contract, at such Contract's
Repurchase Price, or substitute for it an Eligible Substitute Contract as
described in Section 2.03(b), if the Originator has failed to deliver the
related Land and Home Contract File to the Custodian within 30 days of the
Closing Date, subject to delays in delivery of recordable documents. Each of the
parties to this Agreement acknowledge that the provisions of this Section 2.03
are an obligation solely of the Servicer and the Originator and not of any other
party to this Agreement. Notwithstanding the foregoing, in the event the Backup
Servicer succeeds to the servicing rights and responsibilities as provided in
Section 6.02 and/or Section 6.03, the Backup Servicer shall have no obligation
under this Section 2.03 other than to use its commercially reasonable efforts to
request and/or demand the Originator to perform its obligations under this
Section 2.03.
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ARTICLE III
Administration and Servicing of Contracts
Section 3.01. RESPONSIBILITY FOR CONTRACT ADMINISTRATION. The Servicer
shall 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 Indenture 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 Indenture 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 Indenture Trustee
for any reasonable costs, liabilities and expenses (including reasonable
attorneys' fees) incurred by the Indenture 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 Indenture Trustee's written consent (i) initiate
any action, suit or proceeding solely under the Indenture Trustee's name without
indicating the Servicer's representative capacity or (ii) knowingly cause the
Indenture 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 Indenture Trustee under
any other provision of this Agreement. Origen Servicing, Inc. is hereby
appointed the Servicer until such time as any Service Transfer shall be effected
under Article VI.
Section 3.02. STANDARD OF CARE. In managing, administering, servicing
and making collections on the Contracts pursuant to this Agreement, the Servicer
shall exercise that degree of skill and care consistent with the same 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
amount of collections than the Net Liquidation Proceeds that would result from
repossessing and liquidating the related Manufactured Home.
Section 3.03. RECORDS. The Servicer shall, during the period it is
servicer hereunder, maintain such books of account and other records as will
enable the Indenture Trustee to determine the status of each Contract.
Section 3.04. INSPECTION; ELECTRONIC FILE. (a) At all times during the
term hereof, the Servicer shall afford the Indenture 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
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the Indenture 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 Indenture Trustee may make,
the Indenture 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 Section 3.26 of
the Indenture 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 Noteholders and Certificateholders.
(c) On or before the fourth Business Day prior to each Payment Date,
the Servicer shall determine the Amount Available for such Payment Date to be
remitted to the Note Payment Account and shall provide to the Indenture Trustee
and the Backup Servicer an electronic file (the "Electronic File") setting forth
such amount and any other information necessary for the Indenture Trustee to
perform the calculations required hereunder and prepare the Monthly Report. The
Indenture Trustee will be entitled to rely on information supplied by the
Servicer without independent verification.
Section 3.05. COLLECTION ACCOUNT. (a) On or before the Closing Date,
the Servicer shall establish the Collection Account with JPMorgan Chase Bank,
which must be an Eligible Account and notify the Backup Servicer of the location
of the Collection Account. The Collection Account shall be entitled "Origen
Servicing for the benefit of JPMorgan Chase Bank as Indenture Trustee for the
benefit of holders of Origen Manufactured Housing Contract Notes, Series
2004-A." The Servicer shall pay into the Collection 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;
(ii) all payments received 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 2.03 hereof or Section 3.6 of the
Manufactured Housing Contract Sale Agreement; and
(vi) any other amount required to be deposited in the
Collection 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 the related Payment Date from
payments in respect of interest on the
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Contracts in accordance with Section 3.06 hereof. The foregoing requirements
respecting deposits to the Collection Account are exclusive, it being understood
that, without limiting the generality of the foregoing, the Servicer need not
deposit in the Collection Account amounts representing late payment fees,
assumption fees, extension fees or escrow deposits payable by Obligors, which
amounts shall be property of the Servicer. The Servicer agrees that all amounts
paid into the Collection Account under this Agreement shall be held in trust for
the Indenture Trustee, the Noteholders 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 Collection
Account shall, in the name of the Indenture Trustee in its capacity as such,
invest the amounts in the Collection Account in Eligible Investments that mature
not later than one Business Day prior to the next succeeding Payment 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
Collection Account by the Servicer out of its own funds immediately as realized
provided that if the Backup Servicer succeeds to the servicing rights and
responsibilities as provided in Section 6.02 and/or Section 6.03, the Backup
Servicer shall have no obligation or responsibility for any losses occasioned by
or arising from the prior Servicer's investments.. The Indenture Trustee shall
in no way be responsible or liable for losses on amounts invested in accordance
with the provisions hereof. Funds in the Collection Account not so invested must
be insured to the extent of the maximum amount insurable by the Federal Deposit
Insurance Corporation.
(b) If at any time the Servicer receives notice (from S&P, Xxxxx'x, the
Indenture Trustee or otherwise) that the Collection 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 Collection 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 Indenture Trustee of the location of the Collection
Account.
Section 3.06. PERMITTED WITHDRAWALS. The Servicer may, from time to
time as provided herein, make withdrawals from the Collection Account of amounts
deposited in said account pursuant to Section 3.05 that are attributable to the
Contracts for the following purposes:
(a) to remit the Amount Available to the Indenture Trustee for
deposit in the Note Payment Account to make payments in the amounts and
in the manner provided for in Section 8.02 of the Indenture;
(b) to pay to the Originator with respect to each Contract or
property acquired in respect thereof that has been repurchased or
replaced pursuant to Section 2.03 hereof or Section 3.6 of the
Manufactured Housing Contract Sale Agreement, all amounts received
thereon and not required to be distributed to Noteholders or
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 3.09, and to reimburse the Servicer as
provided in Sections 3.08, 3.11, 3.13 and 6.02;
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(d) to withdraw any amount deposited in the Collection Account
that was not required to be deposited therein;
(e) to make any rebates or adjustments deemed necessary by the
Servicer pursuant to Section 3.07(d); or
(f) to reimburse the Servicer (1) for any accrued unpaid
Monthly Servicing Fees and (2) for unreimbursed Servicing Advances,
including Nonrecoverable Advances, to the extent not otherwise
retained. The Servicer's right to reimbursement for Servicing Advances
that are not Nonrecoverable Advances 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 Servicing Advances shall be limited to
late collections of interest on any Contract and to Liquidation
Proceeds and Insurance Proceeds on related Obligors. In addition,
expenses incurred by the Servicer in connection with a defaulted
Contract which is subsequently reinstated, worked out or cured, shall
be reimbursable to the Servicer as a Nonrecoverable Advance at the time
of the cure .
Since, in connection with withdrawals pursuant to clause (b), the
Originator'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 Collection Account pursuant to such clause.
Two Business Days before each Payment Date, no later than 1:00 p.m. New
York time, the Indenture Trustee shall notify the Servicer of the Interest
Deficiency Remedy Amount, if any, payable on the Notes for such Payment Date.
One Business Day before each Payment Date, no later than 1:00 p.m. New York
time, the Servicer shall remit to the Indenture Trustee for deposit into the
Note Payment Account (i) the Amount Available and (ii) from Amounts Held for
Future Distribution, the Interest Deficiency Remedy Amount for such Payment
Date.
Section 3.07. ENFORCEMENT. (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 Issuer's and the Indenture 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.
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(d) The Servicer may grant to the Obligor on any Contract any rebate,
refund or adjustment out of the Collection 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 3.02, grant to the Obligor on any
Contract an extension of payments due under such Contract, provided that, no
such extension may extend beyond the final scheduled payment date of the
Contract with the latest maturity, as specified in Section 3.03(b)(3) of the
Manufactured Housing Contract Sale Agreement, and no more than three 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 3.01, 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 Noteholders (taking into account any estimated loss that
might result absent such action). However, the Servicer shall not 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.
(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 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.
Section 3.08. INDENTURE TRUSTEE TO COOPERATE. (a) Upon payment in full
of any Contract, the Servicer shall notify the Indenture Trustee, the Originator
and the Seller on the next succeeding Payment Date by certification of a
Servicing Officer (which certification shall include a statement to the effect
that all amounts received in connection with such payments which are required to
be deposited in the Collection Account pursuant to Section 3.05 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 but are otherwise incorrectly 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, provided that the Servicer may reimburse
itself for such shortfall payment from the Collection Account if the Servicer
corrects the error and
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receives amounts in respect of such shortfall payment from future collections
with respect to such Contract.
(b) From time to time as appropriate for servicing and foreclosure in
connection with any Land-and-Home Contract, the Indenture Trustee shall, upon
written request of a Servicing Officer and delivery to the Indenture 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
Indenture 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 Indenture Trustee. Upon request of a Servicing Officer, the
Indenture Trustee shall perform such other acts as reasonably requested by the
Servicer and otherwise cooperate with the Servicer in enforcement of the
Noteholders' and the Certificateholders' rights and remedies with respect to
Contracts. The Indenture Trustee shall not be liable for the performance of any
such acts at the request of the Servicer.
(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
Indenture Trustee when its need by the Servicer has ceased unless the Contract
shall be liquidated or repurchased or replaced as described in Section 2.03.
Section 3.09. 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. Furthermore, the Servicer shall be reimbursed out of the
Liquidation Proceeds of a Liquidated Contract for Liquidation Expenses incurred
by it and if such Liquidation Expenses are deemed Nonrecoverable Advances, the
Servicer may reimburse itself as provided in Section 3.06(f). 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 3.10. MAINTENANCE OF INSURANCE. (a) Except as otherwise
provided in subsection (b) of this Section 3.10, 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 Servicer
shall cause the Originator to obtain (i) a statement from the Obligor's
insurance agent or through other information sources that the Manufactured Home
was, at the time of origination of the Contract, not in a federally designated
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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 Collection
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 3.10, 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 Collection 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 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 Collection 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 3.11. REPOSSESSION. Consistently with the standard of care
specified in Section 3.02, 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
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judgment will maximize the receipt of principal and interest or Net Liquidation
Proceeds with respect to a delinquent 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. Notwithstanding the standard of care specified in Section 3.02,
the Servicer shall commence procedures for the repossession of any Manufactured
Home or the foreclosure upon any Mortgaged Property with respect to a Contract,
and to liquidate such Manufactured Home or Mortgaged Property, as soon as
commercially reasonably practicable after the time when such Contract becomes a
Charged-off Contract (or sooner in the Servicer's reasonable judgment).
Notwithstanding the foregoing provisions of this Section 3.11 or any other
provision of this Agreement, with respect to any Contract as to which the
Servicer has received actual notice of, or has actual knowledge of, the presence
of any toxic or hazardous substance on the related Mortgaged Property, the
Servicer shall not, on behalf of the Indenture Trustee, either (i) obtain title
to such Mortgaged Property as a result of or in lieu of foreclosure or otherwise
or (ii) otherwise acquire possession of, or take any other action with respect
to, such Mortgaged Property, if, as a result of any such action, the Indenture
Trustee, the Trust Estate or the Noteholders would be considered to hold title
to, to be a "mortgagee-in-possession" of, or to be an "owner" or "operator" of
such Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Servicer has also previously determined, based
on its reasonable judgment and a report prepared by a Person who regularly
conducts environmental audits using customary industry standards, that:
(1) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best economic
interest of the Indenture Trustee to take such actions as are necessary
to bring the Mortgaged Property into compliance therewith; and
(2) there are no circumstances present at such Mortgaged
Property relating to the use, management or disposal of any hazardous
substances, hazardous materials, hazardous wastes, or petroleum-based
materials for which investigation, testing, monitoring, containment,
clean-up or remediation could be required under any federal, state or
local law or regulation, or that if any such materials are present for
which such action could be required, that it would be in the best
economic interest of the Indenture Trustee to take such actions with
respect to the affected Mortgaged Property.
The cost of the environmental audit report contemplated by
this Section 3.11 shall be advanced by the Servicer as Servicing Advances,
subject to the Servicer's right to be reimbursed therefor from the Collection
Account as provided in Section 3.06(c) or 3.06(f), as appropriate, such right of
reimbursement being prior to the rights of Noteholders to receive any amount in
the Collection Account received in respect of the affected Contract or other
Contracts.
If the Servicer determines, as described above, that it is in the best
economic interest of the Indenture Trustee to take such actions as are necessary
to bring any such Mortgaged Property into compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials, hazardous
wastes or petroleum-based materials affecting any such Mortgaged Property, then
the Servicer shall take such action as it deems to be in the best economic
interest of the Indenture Trustee. Provided,
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however, that the Servicer shall not proceed with foreclosure or acceptance of a
deed in lieu of foreclosure if the estimated costs of the environmental clean
up, as estimated in the environmental audit report, together with the Servicing
Advances made by the Servicer and the estimated costs of foreclosure or
acceptance of a deed in lieu of foreclosure exceeds the estimated value of the
Mortgaged Property. The cost of any such compliance, containment, cleanup or
remediation shall be advanced by the Servicer, subject to the Servicer's right
to be reimbursed therefor from the Collection Account as provided in Section
3.06(c) or 3.06(f), as appropriate, such right of reimbursement being prior to
the rights of Noteholders to receive any amount in the Collection Account
received in respect of the affected Contract or other Contracts.
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 3.02. 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 Indenture
Trustee, as Indenture Trustee, or, at its election, to its nominee on behalf of
the Indenture Trustee, as Indenture Trustee.
Section 3.12. 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 Issuer, the
Indenture Trustee, the Originator, the Seller, the Noteholders 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 L.L.C. 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 3.13. 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 Indenture 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
Indenture Trustee as the
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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 3.13.
(b) In order to facilitate the Servicer's actions, as described in
subsection (a) of this section, Origen Servicing, Inc. will provide the Servicer
with any necessary power of attorney permitting it to retitle the Manufactured
Home.
(c) If the Servicer is still unable to retitle the Manufactured Home,
Origen Servicing, Inc. 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.
Section 3.14. 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 3.02, shall advance, but only to the extent
that the Servicer deems, in its sole judgement, such advance recoverable, 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 Noteholders, the Certificateholders and the
Indenture 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
reimburse the Servicer for payment of such taxes or charges pursuant to this
Section 3.14 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.
Section 3.15. STATEMENT AS TO COMPLIANCE.
Not later than March 15th of each calendar year commencing in 2005, the
Servicer will deliver to the Indenture Trustee and the Depositor an Officers'
Certificate (upon which the Indenture Trustee can conclusively rely in
connection with its obligations under Section 7.05 of the Indenture)
substantially in the form of Exhibit D attached hereto stating, as to each
signatory thereof, that (i) a review of the activities of the Servicer during
the preceding calendar year and of performance under this Servicing 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 of its
obligations
15
under this Servicing 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. Copies of any such
statement shall be provided by the Indenture Trustee to any Noteholder and to
any Person identified to the Indenture Trustee as a prospective transferee of a
Note, upon request at the expense of the requesting party, provided such
statement is delivered by the Servicer to the Indenture Trustee.
Section 3.16. INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
Not later than March 15th of each calendar year commencing in 2005, the
Servicer, at its expense, shall cause a nationally recognized firm of
independent certified public accountants to furnish to the Servicer a report
stating that (i) it has obtained a letter of representation regarding certain
matters from the management of the Servicer which includes an assertion that the
Servicer has complied with certain minimum servicing standards, identified in
the Uniform Single Attestation Program for Mortgage Bankers established by the
Mortgage Bankers Association of America, with respect to the servicing of
manufactured housing installment sales contracts and installment loan agreements
during the most recently completed calendar year and (ii) on the basis of an
examination conducted by such firm in accordance with standards established by
the American Institute of Certified Public Accountants, such representation is
fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. In rendering its report such firm may
rely, as to matters relating to the direct servicing of manufactured housing
installment sales contracts and installment loan agreements by Sub-Servicers,
upon comparable reports of firms of independent certified public accountants
rendered on the basis of examinations conducted in accordance with the same
standards (rendered within one year of such report) with respect to those
Sub-Servicers. Immediately upon receipt of such report, the Servicer shall, at
its own expense, furnish a copy of such report to the Indenture Trustee and each
Rating Agency. Copies of such statement shall be provided by the Indenture
Trustee to any Noteholder upon request, provided that such statement is
delivered by the Servicer to the Indenture Trustee.
Section 3.17. OPTIONAL REDEMPTION OF CONTRACTS.
(a) The Servicer shall have the option to purchase all outstanding
Contracts on any Payment Date on or after the Payment Date on which the Pool
Principal Balance is less than or equal to 20% of the Cut-off Date Pool Balance.
The aggregate redemption price for the Contracts will be equal to the greater of
(a) the sum of: (i)100% of the Principal Balance of each Contract, other than
any Contract as to which the related manufactured home has been repossessed and
whose fair market value is included in clause (ii) hereof, and (ii) the fair
market value of any acquired property, as determined by the Servicer; and (b)
the aggregate fair market value of all assets of the Trust Estate (as determined
by the Servicer), in each case plus accrued and unpaid Interest Payment Amounts
on each Class of Notes at the applicable Note Rate (the "Redemption Price"). If
the determination of the fair market value of the Contracts shall be required to
be made by the Servicer as provided above, (A) such appraisal shall be obtained
at no expense to the Indenture Trustee and (B) the Indenture Trustee may
conclusively rely on, and shall be protected in relying on, such appraisal.
(b) In order to exercise the foregoing option, the Servicer shall
provide written notice of its exercise of such option to the Indenture Trustee
and the Owner Trustee at least 30 days prior to
16
its exercise. In addition, the Servicer shall, not less than one Business Day
prior to the proposed Payment Date on which such redemption is to be made,
deposit the Redemption Price specified in (a) above with the Indenture Trustee.
ARTICLE IV
Servicing Certificate
Section 4.01 ELECTRONIC FILES. (a) No later than 1:00 p.m. on the
fourth Business Day prior to each Payment Date, the Servicer shall deliver to
the Indenture Trustee and the Backup Servicer, the Electronic File referred to
in Section 3.04(c).
(b) With the delivery of each Electronic File pursuant to Section
4.01(a), the Servicer shall be deemed to certify as to the accuracy of the
Electronic File and that no Servicer Event of Default or event that with notice
or lapse of time or both would become an Servicer Event of Default has occurred,
or if such event has occurred and is continuing, specifying the event and its
status.
Section 4.02 EXCHANGE ACT REPORTING. (a) The Indenture Trustee and the
Servicer shall reasonably cooperate with the Issuer and the Administrator in
connection with the Trust's satisfying the reporting requirements under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) Reserved.
(c) The Indenture Trustee shall sign a certification (in the form
attached hereto as Exhibit C-2) for the benefit of the Administrator and its
officers, directors and Affiliates regarding certain aspects of the
Certification (provided, however, that the Indenture Trustee shall not undertake
an analysis of the accountant's report attached as an exhibit to the Form 10-K).
The Indenture Trustee's certification shall be delivered to the Administrator by
no later than March 20th of each year (or if such day is not a Business Day, the
immediately preceding Business Day).
(d) The Servicer shall sign a certification (in the form attached
hereto as Exhibit C-3) for the benefit of the Administrator and its officers,
directors and Affiliates regarding certain aspects of the Certification relating
to Electronic Files delivered by the Servicer pursuant to this Agreement. The
Servicer's certification shall be delivered to the Administrator by no later
than March 20th of each year (or if such day is not a Business Day, the
immediately preceding Business Day).
In addition, the Servicer shall indemnify and hold harmless the
Administrator, the Depositor, the Indenture Trustee and their respective
officers, directors and Affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon a
breach of such Servicer's obligations under this Section 4.02(d) or such
Servicer's negligence, bad faith or willful misconduct in connection therewith.
The Administrator shall indemnify and hold harmless the Servicer and its
officers, directors and Affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon a
breach of the Administrator's obligations under this Section 4.02 or the
Administrator's negligence, bad faith or willful misconduct in connection
therewith. If the
17
indemnification provided for herein is unavailable or insufficient to hold
harmless the Administrator or the Servicer, as applicable, then the other party,
in connection with a breach of its respective obligations under this Section
4.02 with respect to the Administrator or Section 4.02(d) with respect to the
Servicer or its respective negligence, bad faith or willful misconduct in
connection therewith, agrees that it shall contribute to the amount paid or
payable by the other party as a result of the losses, claims, damages or
liabilities of the other party in such proportion as is appropriate to reflect
the relative fault and the relative benefit of the Administrator on the one hand
and the Servicer on the other.
(e) To the extent that, following the Closing Date, the Administrator
certifies to the Indenture Trustee and the Servicer that reports and
certifications differing from those required under this Section 4.02 comply with
the reporting requirements under the Exchange Act, each of the Servicer and the
Indenture Trustee hereby agrees that it will reasonably cooperate to amend the
provisions of this Section 4.02 (in accordance with Section 7.01) in order to
comply with such amended reporting requirements and such amendment of this
Section 4.02. Any such amendment may result in the reduction of the reports
filed by the Administrator under the Exchange Act. Notwithstanding the
foregoing, neither the Indenture Trustee nor the Servicer shall be obligated to
enter into any amendment pursuant to this Section that adversely affects its
rights, protections, obligations and immunities under this Servicing Agreement.
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ARTICLE V
The Servicer and the Backup Servicer
Section 5.01 LIABILITY OF THE SERVICER AND THE BACKUP SERVICER. The
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by the Servicer herein. The
Backup Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken herein by the Backup
Servicer.
Section 5.02 MERGER OR CONSOLIDATION OF OR ASSUMPTION OF THE
OBLIGATIONS OF THE SERVICER AND THE BACKUP SERVICER. Any Person into which the
Servicer or the Backup Servicer may be merged or consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Servicer or
the Backup Servicer shall be a party, or any Person succeeding to the business
of the Servicer or the Backup Servicer, shall be the successor of the Servicer
or the Backup Servicer, 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 5.03 LIMITATION ON LIABILITY OF THE SERVICER AND 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, the Noteholders 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. 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, the Notes 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 indemnity/hold harmless amounts as
provided for in this sentence shall be payable only pursuant to Section 8.02
(xi) of the Indenture after payments to the Noteholders for the related Payment
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 Noteholders or 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 therefor
19
only after payments to the Notes for the related Payment 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 5.04 or 6.01 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 Noteholders 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 Indenture Trustee, the initial Servicer, the
Originator, the Seller, the Depositor or the Issuer or any other party to this
Agreement prior to, on or following the Servicer Transfer Date, or (iii) any
breach or default by the initial Servicer, the Originator, the Seller, the
Depositor or the Indenture 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 Noteholders 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 Notes or the Certificates in full, the timing of
payment of the Notes or the Certificates or the enforceability or collectability
of the Contracts.
Section 5.04 SERVICER AND BACKUP SERVICER NOT TO RESIGN. Subject to the
provisions of Section 5.02, 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 Indenture 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 Indenture Trustee in writing and such proposed successor
servicer is reasonably acceptable to the Indenture Trustee; and (b) each Rating
Agency shall have delivered a letter to the Indenture 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 any
Class of the Notes; 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
20
responsibilities and obligations hereunder in accordance with this Agreement or
the Indenture Trustee shall have designated a successor servicer in accordance
with Section 6.02. Any such resignation shall not relieve the Servicer or Backup
Servicer of responsibility for any of the obligations specified in Sections 6.01
and 6.02 or this Article V 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 Indenture Trustee.
Section 5.05 DELEGATION OF DUTIES. 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 Amounts Advanced and (without duplication) Nonrecoverable Advances.
Section 5.06 RIGHTS OF THE ISSUER IN RESPECT OF THE SERVICER. The
Servicer shall afford (and any Sub-Servicing Agreement shall provide that each
Sub-Servicer shall afford) the Issuer and the Indenture Trustee, upon reasonable
notice, during normal business hours, access to all records maintained by the
Servicer (and any such Sub-Servicer) in respect of the Servicer's rights and
obligations hereunder and access to officers of the Servicer (and those of any
such Sub-Servicer) responsible for such obligations. The Issuer may, but is not
obligated to, enforce the obligations of the Servicer under this Servicing
Agreement and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of the Servicer under this Servicing Agreement
or exercise the rights of the Servicer under this Servicing Agreement; provided
that the Servicer shall not be relieved of any of its obligations under this
Servicing Agreement by virtue of such performance by the Issuer or its designee.
The Issuer shall not have any responsibility or liability for any action or
failure to act by the Servicer and is not obligated to supervise the performance
of the Servicer under this Servicing Agreement or otherwise.
Section 5.07 INDEMNIFICATION. The Servicer shall indemnify and hold
harmless the Trust, the Backup Servicer, the Owner Trustee and the Indenture
Trustee and their 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. 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
5.07 shall survive termination of this Agreement.
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ARTICLE VI
Default
Section 6.01. SERVICER EVENTS OF DEFAULT.
"Servicer Event of Default," wherever used herein, means any one of the
following events:
(a) (1) The failure by the Servicer to deposit in the Note
Payment Account any deposit required to be made under the terms of this
Agreement which continues unremedied for a period of one Business Day
after the date upon which written notice of such failure shall have
been given to the Servicer by the Indenture Trustee or to the Servicer
and the Indenture Trustee by any Noteholders of at least 25% of the
aggregate Note Balances of the Notes;
(b) Failure on the Servicer's part duly 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 Indenture
Trustee or to the Servicer and the Indenture Trustee by Noteholders of
at least 25% of the aggregate Note Balances of the Notes;
(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 Indenture Trustee or to the Servicer and the
Indenture Trustee by any Noteholders of at least 25% of the aggregate
Note Balances of the Notes;
(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, 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;
22
(f) So long as the Originator is an affiliate of the Servicer,
any failure of the Originator, to repurchase, or substitute an Eligible
Substitute Contract for, any Contract as required by Section 2.03 of
the Servicing Agreement and Section 3.6(b) of the Manufactured Housing
Contract Sale Agreement, respectively;
(g) The Average Sixty-Day Delinquency Ratio exceeds 9.00%;
(h) The Current Realized Loss Ratio exceeds 6.00%; or
(i) The Cumulative Realized Loss Ratio exceeds 17.00%.
Section 6.02. TRANSFER. (a) If a Servicer Event of Default has occurred
and is continuing, either the Indenture Trustee or Noteholders of 51% or more of
the aggregate Note Balances of the Notes, by notice in writing to the Servicer
(and to the Indenture Trustee if given by the Noteholders) may terminate all
(but not less than all) of the Servicer's management, administrative, servicing
and collection functions as provided herein (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 5.04, 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 Collection Account, the
transfer of which shall be governed by Section 6.06), shall pass to and be
vested in the Backup Servicer pursuant to and under this Section 6.02; 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 and to do any and all acts or things
necessary or appropriate to effect the purposes of such notice of termination.
The Servicer agrees to cooperate with the Backup Servicer in effecting the
termination of the responsibilities and rights of the Servicer as provided
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
Collection Account pursuant to Section 6.06, or for its own account in
connection with its services hereafter or thereafter received with respect to
the Contracts. The Servicer shall be entitled to receive any other amounts which
are payable to the Servicer under this 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 Servicer shall be reimbursed
as provided in clause (b) of this Section 6.02. The Backup Servicer shall not be
liable to and shall be held harmless by the Issuer, the Noteholders, the
Certificateholders, the Seller, the Originator, the Depositor, the Indenture
Trustee and the initial Servicer for any and all claims arising from or related
to (i) any missing or 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.
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(b) On or before the Closing Date the Servicer shall deposit into an
account (the "Reserve Account") maintained with the Indenture Trustee an amount
equal to $100,000. The Reserve Account shall not be a trust account. In the
event that, upon a Service Transfer, 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, are not paid by the initial
Servicer within 10 days following invoice therefor, and to the extent not paid
in a timely manner, the Backup Servicer shall forward such invoice to the
Indenture Trustee and the Indenture Trustee shall reimburse the Backup Servicer
from amounts on deposit in the Reserve Account, to the extent of available
funds. If amounts on deposit in the Reserve Account are not sufficient therefor,
the Backup Servicer may reimburse itself for such costs and expenses from the
Collection Account. The Backup Servicer shall promptly notify the Indenture
Trustee upon reimbursement of all invoiced costs and expenses regardless of the
source of reimbursement. Upon the earlier to occur of (i) reimbursement to the
Backup Servicer of all invoiced costs and expenses incurred in connection with a
Service Transfer, or (ii) the final Payment Date with respect to the Notes, any
amounts on deposit in the Reserve Account shall be remitted to the initial
Servicer by the Indenture Trustee.
Section 6.03. BACKUP SERVICER TO ACT, APPOINTMENT OF SUCCESSOR. BACKUP
SERVICER TO ACT, APPOINTMENT OF SUCCESSOR. On and after the time the Servicer
receives a notice of termination pursuant to Section 6.02 or the resignation of
the Servicer in accordance with Section 5.04, the Backup Servicer, upon two (2)
Business Days' written notice from the Indenture 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) except as provided herein 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 shall not be liable for any acts or omissions of the initial or any
prior Servicer (or subservicer) accruing prior to such Service Transfer or for
any breach or default by the initial or any prior Servicer, the Originator, the
Seller, the Issuer or Indenture Trustee of any of their respective obligations
contained herein or in any related document or agreement, and (ii) 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 and in the Indenture. If the Backup Servicer is
legally unable so to act, the Indenture 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 or the Indenture Trustee 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 Noteholders, exceed the
Monthly Servicing Fee. The Indenture Trustee and the Backup
24
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 Originator, the Seller, the Depositor, the
Issuer, the Indenture Trustee, the Owner Trustee and the initial Servicer set
forth in this Agreement and any related document including the Basic Documents,
and the Backup Servicer shall be held harmless by the Issuer, the Seller, the
Originator, the Depositor, the Noteholders, the Indenture Trustee 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
Issuer, the Seller, the Originator, the Indenture Trustee or the Servicer as set
forth herein or in any related document or agreement, including the Basic
Documents.
Section 6.04. NOTIFICATION TO NOTEHOLDERS.
(a) Promptly following the occurrence of any Servicer Event of Default,
the Servicer shall give written notice thereof to the Indenture Trustee, the
Backup Servicer, the Rating Agencies and the Noteholders at their respective
addresses appearing on the Note Register.
(b) Within ten days following any termination or appointment of a
successor to the Servicer pursuant to this Article VI, the Indenture Trustee
shall give written notice thereof to the Rating Agencies and the Noteholders at
their respective addresses appearing on the Note Register.
(c) The Indenture Trustee shall give written notice to the Rating
Agencies prior to the date upon which any Eligible Servicer (other than the
Indenture Trustee) is to assume the responsibilities of Servicer pursuant to
Section 6.03, naming such successor Servicer.
Section 6.05. EFFECT OF TRANSFER.
(a) After the Service Transfer, the Backup Servicer or new Servicer
shall 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 except as provided herein 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. In any event, the initial Servicer shall remain obligated to fulfill
its indemnity and hold harmless obligations following a Service Transfer or
termination of this Agreement.
(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
pursuant to Section 5.07) other than
25
those relating to the management, administration, servicing or collection of the
Contracts following the effective Service Transfer. Upon and following a
Servicer Transfer and commencement of servicing by the Backup Servicer, 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 and the Backup Servicer shall have no further rights to
the Monthly Backup Servicing Fee.
Section 6.06. TRANSFER OF COLLECTION ACCOUNT. Notwithstanding the
provisions of Section 6.02, if the Collection Account shall be maintained with
the Servicer and a Servicer Event of Default shall occur and be continuing, the
Servicer shall, after five days' written notice from the Indenture Trustee, or
in any event within ten days after the occurrence of the Servicer Event of
Default, establish an Eligible Account with an institution other than the
Servicer and promptly transfer all funds in the Collection Account to such new
account, which shall thereafter be deemed the Collection Account for the
purposes hereof. Upon a Service Transfer, the Collection Account shall be
transferred to an Eligible Account as directed by the successor Servicer.
26
ARTICLE VII
Miscellaneous Provisions
Section 7.01 AMENDMENT. This Servicing Agreement may be amended from
time to time by the parties hereto, provided that any amendment be accompanied
by a letter from the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to the Notes or the rating
then assigned to the Notes, and the consent of the Indenture Trustee. None of
the Basic Documents shall be amended or modified so as to adversely affect the
rights or impose additional obligations upon the Servicer or the Backup Servicer
without the express written consent of both the Servicer and the Backup
Servicer.
Section 7.02 GOVERNING LAW. THIS SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (EXCEPT SECTION 5- 1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.03 NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if when
delivered to:
(a) in the case of the Servicer: Origen Servicing, Inc.
00000 Xxxxx Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx and Xxxx
Xxxxxxxxxx
(b) in the case of the Backup Servicer:Vanderbilt Mortgage and Finance, Inc.
000 Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
(c) in the case of Rating Agencies: Xxxxx'x Investors Service, Inc.
4th Floor
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgage Monitoring
Unit
Standard & Poor's, a division of The
XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
27
Attention: Asset Backed Surveillance Group
(d) in the case of the Owner Trustee,
the Corporate Trust Office: Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
(e) in the case of the Issuer,
to Origen Manufactured Housing Contract Trust 2004-A:
c/o Citigroup Mortgage Loan Trust Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
(f) in the case of the Indenture Trustee: JPMorgan Chase Bank
4 New York Xxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services, Origen
2004-A
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party. Any notice required or permitted to be
mailed to a Noteholder shall be given by first class mail, postage prepaid, at
the address of such Noteholder as shown in the Note Register. Any notice so
mailed within the time prescribed in this Servicing Agreement shall be
conclusively presumed to have been duly given, whether or not the Noteholder
receives such notice. Any notice or other document required to be delivered or
mailed by the Indenture Trustee to any Rating Agency shall be given on a
reasonable efforts basis and only as a matter of courtesy and accommodation and
the Indenture Trustee shall have no liability for failure to deliver such notice
or document to any Rating Agency.
Section 7.04 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Servicing 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 Servicing Agreement and shall in no way
affect the validity or enforceability of the other provisions of this Servicing
Agreement or of the Notes or the rights of the Noteholders thereof.
Section 7.05 THIRD-PARTY BENEFICIARIES. This Servicing Agreement will
inure to the benefit of and be binding upon the parties hereto, the Noteholders,
the Owner Trustee, the Indenture Trustee and their respective successors and
permitted assigns. Except as otherwise provided in this Servicing
28
Agreement, no other Person shall have any right or obligation hereunder. The
Indenture Trustee shall have the right to exercise all rights of the Issuer
under this Servicing Agreement.
Section 7.06 COUNTERPARTS. This instrument 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 7.07 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.
Section 7.08 TERMINATION. The respective obligations and
responsibilities of the Servicer (and Backup Servicer) and the Issuer created
hereby shall terminate (except as provided herein) upon the satisfaction and
discharge of the Indenture pursuant to Section 4.10 thereof.
Section 7.09 NO PETITION. The Servicer, by entering into this Servicing
Agreement, hereby covenants and agrees that it will not at any time institute
against the Issuer, or join in any institution against the Issuer, any
bankruptcy proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations of the Issuer. This section shall
survive the termination of this Servicing Agreement by one year.
Section 7.10 NO RECOURSE. The Servicer acknowledges that no recourse
may be had against the Issuer, except as may be expressly set forth in this
Servicing Agreement.
Section 7.11 INDENTURE TRUSTEE RIGHTS. The Indenture Trustee shall be
entitled to the same rights, protections, indemnities and immunities afforded to
it under the Indenture as if specifically set forth herein.
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ARTICLE VIII
DUTIES OF THE SERVICER AS ADMINISTRATOR
Section 8.01 ADMINISTRATIVE DUTIES. (a) DUTIES WITH RESPECT TO THE
INDENTURE. The Servicer as administrator (the "Administrator") shall perform all
its duties and the duties of the Issuer under the Indenture. In addition, the
Administrator shall consult with the Owner Trustee as the Administrator deems
appropriate regarding the duties of the Issuer under the Indenture. The
Administrator shall monitor the performance of the Issuer and shall advise the
Owner Trustee when action is necessary to comply with the Issuer's duties under
the Indenture. The Administrator shall prepare for execution by the Issuer or
shall cause the preparation by other appropriate Persons of all such documents,
reports, filings, instruments, certificates and opinions as it shall be the duty
of the Issuer to prepare, file or deliver pursuant to the Indenture. In
furtherance of the foregoing, the Administrator shall take all necessary action
that is the duty of the Issuer to take pursuant to the Indenture.
(b) DUTIES WITH RESPECT TO THE ISSUER.
(i) In addition to the duties of the Administrator set forth
in this Servicing Agreement or any of the Basic Documents, the
Administrator shall perform such calculations and shall prepare for
execution by the Issuer or the Owner Trustee or shall cause the
preparation by other appropriate Persons of all such documents,
reports, filings, instruments, certificates and opinions as it shall be
the duty of the Issuer or the Owner Trustee to prepare, file or deliver
pursuant to this Servicing Agreement or any of the Basic Documents or
under state and federal tax and securities laws (including, but not
limited to, UCC filings in applicable jurisdictions and annual
compliance certificates, if any), and shall take all appropriate action
that it is the duty of the Issuer to take pursuant to this Servicing
Agreement or any of the Basic Documents. In accordance with the
directions of the Issuer or the Owner Trustee, the Administrator shall
administer, perform or supervise the performance of such other
activities in connection with the Notes (including the Basic Documents)
as are not covered by any of the foregoing provisions and as are
expressly requested by the Issuer, the Indenture Trustee or the Owner
Trustee.
(ii) Reserved.
(iii) In carrying out the foregoing duties or any of its other
obligations under this Servicing Agreement, the Administrator may enter
into transactions with or otherwise deal with any of its Affiliates;
PROVIDED, HOWEVER, that the terms of any such transactions or dealings
shall be in accordance with any directions received from the Issuer and
shall be, in the Administrator's opinion, no less favorable to the
Issuer in any material respect than with terms made available to
unrelated third parties.
(c) TAX MATTERS. The Administrator shall prepare and file on behalf of
the Owner Trustee or the Issuer, all tax returns (if any) and information
reports, tax elections and such annual or other reports of the Issuer as are
necessary for preparation of tax returns and information reports as
30
provided in Section 5.03 of the Trust Agreement, other than each Form 1099 which
shall be prepared by the Indenture Trustee.
(d) NON-MINISTERIAL MATTERS. With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the Administrator
shall not take any action pursuant to this Article VIII unless within a
reasonable time before the taking of such action, the Administrator shall have
notified the Owner Trustee and the Indenture Trustee of the proposed action and
the Owner Trustee and, with respect to items (A), (B), (C) and (D) below, the
Indenture Trustee shall not have withheld consent or provided an alternative
direction. For the purpose of the preceding sentence, "non-ministerial matters"
shall include:
(A) the amendment of or any supplement to the
Indenture;
(B) the initiation of any claim or lawsuit by the
Issuer and the compromise of any action, claim or lawsuit
brought by or against the Issuer (other than in connection
with the collection of the Contracts);
(C) the amendment, change or modification of this
Servicing Agreement or any of the Basic Documents to which the
Indenture Trustee or the Owner Trustee, as applicable, is a
party;
(D) the appointment of successor Certificate Paying
Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Servicers or the
consent to the assignment by the Certificate Registrar, Paying
Agent or Indenture Trustee of its obligations under the
Indenture; and
(E) the removal of the Indenture Trustee.
(e) SERVICER SHALL ACT AS ADMINISTRATOR. By execution of this
Agreement, the Servicer agrees to be bound as Administrator and shall perform
the obligations of the Administrator as described herein. Notwithstanding any
provision to the contrary contained herein or otherwise, the Backup Servicer
shall not assume any obligations or responsibilities as the "Administrator" as
contemplated by this Agreement even in the event the Backup Servicer succeeds to
the servicing rights and responsibilities as provided in Section 6.02 and/or
6.03 hereof. Upon the occurrence of a Service Transfer, the Servicer shall
continue to act as "Administrator" hereunder unless a successor Administrator is
appointed by 100% of the holders of the Owner Trust Certificates and notice of
such appointment is promptly given to the Backup Servicer and the Indenture
Trustee.
Section 8.02 RECORDS. The Administrator shall maintain appropriate
books of account and records relating to services performed under this Servicing
Agreement, which books of account and records shall be accessible for inspection
by the Issuer, the Indenture Trustee and the Owner Trustee at any time during
normal business hours.
Section 8.03 ADDITIONAL INFORMATION TO BE FURNISHED. The Administrator
shall furnish to the Issuer, the Indenture Trustee and the Owner Trustee from
time to time such additional information
31
regarding the Contracts and the Notes as the Issuer, the Indenture Trustee or
the Owner Trustee shall reasonably request.
Section 8.04 NO RECOURSE TO OWNER TRUSTEE. It is expressly understood
and agreed by the parties hereto that (a) this Agreement is executed and
delivered by Wilmington Trust Company, not individually or personally, but
solely as Owner Trustee of Origen Manufactured Housing Contract Trust 2004-A, in
the exercise of the powers and authority conferred and vested in it, (b) each of
the representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as personal representations, undertakings and
agreements by Wilmington Trust Company but is made and intended for the purpose
for binding only the Issuer, (c) nothing herein contained shall be construed as
creating any liability of Wilmington Trust Company, individually or personally,
to perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by any
Person claiming by, through or under the parties hereto and (d) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Agreement or any other related documents.
Section 8.05 EXCHANGE ACT REPORTING. (a) The Administrator shall
prepare or cause to be prepared on behalf of the Trust any Forms 8-K and 10-K
customary for similar securities as required by the Exchange Act and the Rules
and Regulations of the Securities and Exchange Commission thereunder, and the
Administrator shall sign (or shall cause another entity acceptable to the
Securities and Exchange Commission to sign) and the Administrator shall file or
cause to be filed (via the Securities and Exchange Commission's Electronic Data
Gathering and Retrieval System) such forms on behalf of the Depositor or the
Issuer (or such other entity). The Depositor and the Issuer hereby grant to the
Administrator a limited power of attorney to execute any Form 8-K and file each
such document on behalf of the Depositor and the Issuer. Such power of attorney
shall continue until the earlier of (i) receipt by the Servicer from the
Depositor and the Issuer of written termination of such power of attorney and
(ii) the termination of the Trust. Notwithstanding anything herein to the
contrary, the Administrator, and not the Servicer, shall be responsible for
executing each Form 10-K filed on behalf of the Trust.
(b) Each Form 8-K shall be filed by the Administrator or its delegatee
within 15 days after each Payment Date, with a copy of the statement to the
Noteholders for such Payment Date as an exhibit thereto. Prior to March 30th of
each year (or such earlier date as may be required by the Exchange Act and the
Rules and Regulations of the Securities and Exchange Commission), beginning in
2005, the Administrator shall file (or cause to be filed) a Form 10-K, in
substance as required by applicable law or applicable Securities and Exchange
Commission staff's interpretations. Such Form 10-K shall include as exhibits the
Servicer's annual statement of compliance described under Section 3.15 and the
accountant's report described under Section 3.16, in each case to the extent
they have been timely delivered to the Administrator. If they are not so timely
delivered, the Administrator shall file (or cause to be filed) an amended Form
10-K including such documents as exhibits reasonably promptly after they are
delivered to the Administrator. The Administrator shall have no liability with
respect to any failure to properly prepare or file such periodic reports
resulting from or relating to the Administrator's inability or failure to obtain
any information not resulting from its own negligence or willful misconduct. The
Form 10-K shall also include a certification in
32
the form attached hereto as Exhibit C-1 (the "Certification"), which shall be
signed by the senior officer of the Administrator.
(c) Upon any filing with the Securities and Exchange Commission, the
Administrator shall promptly deliver to the Issuer a copy of any executed
report, statement or information.
(d) Prior to January 30 of the first year in which the Administrator is
able to do so under applicable law, the Administrator shall file (or cause to be
filed) a Form 15 Suspension Notification with respect to the Trust.
33
IN WITNESS WHEREOF, the Servicer, the Issuer, the Backup Servicer and
the Indenture Trustee have caused this Servicing Agreement to be duly executed
by their respective officers or representatives all as of the day and year first
above written.
ORIGEN SERVICING, INC.,
as Servicer
By: /s/ X. Xxxxxxxx Xxxxxx, Jr.
-----------------------------------------------
Name: X. Xxxxxxxx Xxxxxx, Jr.
Title: Chief Financial Officer
ORIGEN MANUFACTURED HOUSING CONTRACT
TRUST 2004-A,
as Issuer
By: Wilmington Trust Company, not in its individual
capacity, but solely as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Financial Service Officer
JPMORGAN CHASE BANK,
as Indenture Trustee
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Attorney-in-Fact
VANDERBILT MORTGAGE AND FINANCE, INC.,
as Backup Servicer
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxxx
Title: President
Acknowledged and agreed with respect to Section
2.03 hereof:
ORIGEN FINANCIAL L.L.C.,
as Originator
By: /s/ X. Xxxxxxxx Xxxxxx, Jr.
-----------------------------------------------
Name: X. Xxxxxxxx Xxxxxx, Jr.
Title: Chief Financial Officer
EXHIBIT A
---------
LIST OF CONTRACTS
(Filed Manually)
(In accordance with Rule 202 of Regulation S-T, this List of Contracts is being
filed in paper pursuant to a continuing hardship exemption.)
A-1
EXHIBIT B
---------
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 2.03 of the Servicing Agreement, dated as of
February 1, 2004 (the " Agreement"), among the Origen Servicing, Inc., the
Origen Manufactured Housing Trust 2004-A, Vanderbilt Mortgage and Finance, Inc.
as backup servicer (the "Backup Servicer") and JPMorgan Chase Bank (the
"Indenture Trustee") (all capitalized terms used herein without definition
having the respective meanings specified in the Indenture (the "Indenture"),
dated as of February 1, 2004, between Origen Manufactured Housing Contract Trust
2004-A (the "Issuer") and the Indenture Trustee), 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 2.03 of the Agreement.
2. Upon deposit of the Repurchase Price for such Contracts, such
Contracts may, pursuant to Section 2.03 of the Agreement, be assigned by the
Indenture Trustee to the Company.
IN WITNESS WHEREOF, I have affixed hereunto my signature this ___ day
of _______, _____.
ORIGEN FINANCIAL L.L.C.
By
[Name]
[Title]
B-1
EXHIBIT C-1
-----------
FORM OF CERTIFICATION TO BE PROVIDED BY THE ADMINISTRATOR WITH FORM
10-K
Re: Origen Manufactured Housing Contract Trust 2004-A (the "Trust"
or the "Issuer") Manufactured Housing Contract Trust Notes,
Series 2004-A
I, [identify the certifying individual], the senior officer of
Origen Servicing, Inc., the Administrator for Origen Manufactured Housing
Contract Trust 2004-A (the "Registrant"), certify that:
l. I have reviewed this annual report on Form 10-K, and all
reports on Form 8-K containing distribution and servicing reports filed in
respect of periods included in the year covered by this annual report, of
Registrant;
2. Based on my knowledge, the information in these reports,
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the distribution information
required to be provided by the Indenture Trustee under the Indenture, and the
servicing information required to be provided to the Indenture Trustee by the
Servicer under the Servicing Agreement for inclusion in these reports, is
included in these reports;
4. Based on my knowledge and upon the annual compliance
statements included in the report and required to be delivered to the Indenture
Trustee in accordance with the terms of the Servicing Agreement, and except as
disclosed in the reports, the Servicer has fulfilled its obligations under the
Servicing Agreement; and
The reports disclose all significant deficiencies relating to
the servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a review
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
or similar procedure, as set forth in the servicing, or similar, agreement, that
is included in these reports.
In giving the certifications above, I have reasonably relied
on information provided to me by the Indenture Trustee and the Servicer.
Capitalized terms used but not defined herein have the
meanings ascribed to them in Appendix A to the Indenture, dated February 1, 2004
(the "Indenture"), between Origen Manufactured Housing Contract Trust 2004-A, as
issuer, and JPMorgan Chase Bank, as indenture trustee.
[ADMINISTRATOR].
By:___________________________________
Name:
C-1-1
Title:
Date:
C-1-2
EXHIBIT C-2
-----------
FORM OF CERTIFICATION TO BE
PROVIDED TO THE Administrator BY THE INDENTURE TRUSTEE
Re: Origen Manufactured Housing Contract Trust 2004-A (the "Trust"
or the "Issuer") Manufactured Housing Contract Trust Notes,
Series 2004-A
I, [identify the certifying individual], a [title] of JPMorgan
Chase Bank, as Indenture Trustee, hereby certify to Origen Servicing, Inc. (the
"Administrator"), and its officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification, that:
To date, the information and statements required to be
provided by the Indenture Trustee pursuant to Section 7.05 of the Indenture have
been provided and, taken as a whole and based on the information provided to the
Indenture Trustee by the Servicer (as to which provided information we make no
representation), do not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
date of each of such statements.
Capitalized terms used but not defined herein have the
meanings ascribed to them in Appendix A to the Indenture, dated February 1, 2004
(the "Indenture"), between Origen Manufactured Housing Contract Trust 2004-A, as
issuer, and JPMorgan Chase Bank, as indenture trustee.
JPMORGAN CHASE BANK, as Indenture Trustee
By:__________________________________
Name:
Title:
Date:
C-2-1
EXHIBIT C-3
-----------
FORM OF CERTIFICATION TO BE
PROVIDED TO THE ADMINISTRATOR BY THE SERVICER
Re: Origen Manufactured Housing Contract Trust 2004-A
(the "Trust" or the "Issuer") Manufactured Housing
Contract Trust Notes, Series 2004-A
I, [identify the certifying individual], a [title] of Origen Servicing,
Inc., as Servicer, hereby certify to Origen Servicing, Inc. (the
"Administrator"), and its officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification, that:
l. I have reviewed this annual report on Form 10-K, and all
reports on Form 8-K containing distribution or servicing reports filed in
respect of periods included in the year covered by this annual report, of the
above referenced trust (the "Registrant");
2. Based on my knowledge, the information provided by the
Servicer to the Indenture Trustee for inclusion in these reports, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;
3. Based on my knowledge, the servicing information required
to be provided to the Indenture Trustee by the servicer under the servicing, or
similar, agreement for inclusion in these reports is included in these reports;
4. I am responsible for reviewing the activities performed by
the servicer under the servicing, or similar, agreement and based upon my
knowledge and the annual compliance review required under that agreement, and
except as disclosed in the reports, the servicer has fulfilled its obligations
under that agreement; and
5. The reports disclose all significant deficiencies relating
to the servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a review
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
as set forth in the servicing, or similar, agreement, that is included in these
reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [the Indenture
Trustee and Sub-Servicers]
Date:
_________________________________
[Signature]
[Title]
[Company]
C-3-1
EXHIBIT D
---------
OFFICER'S CERTIFICATE
REGARDING ANNUAL STATEMENT OF COMPLIANCE
___________________ Trust Notes, Series 200_-___
I, _____________________, hereby certify that I am a duly
appointed __________________________ of _______________________________ (the
"[Servicer]"), and further certify as follows:
1. This certification is being made pursuant to the terms of
the Servicing Agreement, dated as of ____________, _____ (the "Servicing
Agreement"), among _____________________, as issuer, the [Servicer], as
[servicer] and ________________, as indenture trustee.
2. I have reviewed the activities of the [Servicer] during the
preceding year and the [Servicer's] performance under the Servicing Agreement
and to the best of my knowledge, based on such review, the [Servicer] has
fulfilled all of its obligations under the Servicing Agreement throughout the
year.
Capitalized terms not otherwise defined herein have the
meanings set forth in the Servicing Agreement.
Dated: _________________
D-1
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of ___________________.
By: _____________________________
Name:
Title:
I, _________________________, a (an) __________________ of the
[Servicer], hereby certify that _________________ is a duly elected, qualified,
and acting _______________________ of the [Servicer] and that the signature
appearing above is his/her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of ___________________.
By: ______________________________
Name:
Title:
D-2
