EXHIBIT 4.3.5
FORM OF REFERENCE AGREEMENT
(GRANTOR TRUST/REMIC, FIXED RATE CERTIFICATES, MORTGAGE LOANS)
______________________________________________________________________________
XXXXXXX XXXXX ASSET BACKED SECURITIES CORP.
Depositor
[NAME OF MASTER SERVICER]
Master Servicer
and
[NAME OF TRUSTEE]
Trustee
______________________________
REFERENCE AGREEMENT
incorporating by reference
STANDARD TERMS AND CONDITIONS
OF POOLING AND SERVICING
Dated as of [ ], 200__
______________________________
Class A and Class B
Conduit Manufactured Housing Contract
Pass-Through Certificates, Series ___
$_____ Class A[-1
$_____ Class A-2]
$_____ Class B
______________________________________________________________________________
TABLE OF CONTENTS
ARTICLE XI
CONVEYANCE OF TRUST FUND; DESCRIPTION OF THE CERTIFICATES.....................1
Section 11.01 Designation.............................................1
Section 11.02 Conveyance of Trust Fund; Issuance of Certificates......2
Section 11.03 Delivery of Documents...................................2
Section 11.04 Denominations...........................................5
Section 11.05 Principal Balance.......................................5
Section 11.06 Distributions on the Certificates.......................5
Section 11.07 Place and Notice for Final Distribution on
Certificates............................................5
Section 11.08 Pass-Through Rate.......................................5
Section 11.09 Distribution Dates......................................5
Section 11.10 Record Dates............................................5
Section 11.11 Contracts...............................................6
Section 11.12 Forms Generally.........................................6
Section 11.14 Substitution............................................6
Section 11.15 Wire Transfer Eligibility...............................6
Section 11.16 Required Rating.........................................6
Section 11.18 Performance Bond........................................7
Section 11.19 Warranty and Servicing Agreements.......................7
Section 11.20 Custodial Agreements....................................7
Section 11.21 Retained Yield; Administrative Fee; Servicing
Compensation............................................7
Section 11.22 Cut-off Date............................................7
Section 11.23 Certificate Registrar...................................7
Section 11.24 Authenticating Agent....................................7
Section 11.25 Paying Agent............................................7
Section 11.27 Limited Guarantee and Guarantee Amount..................8
Section 11.28 Limited Guarantee Fee...................................8
ARTICLE XII
DEFINITIONS...................................................................8
ARTICLE XIII
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS; RESERVE FUND..................12
Section 13.01 Certificate Account....................................12
Section 13.02 Distributions..........................................12
Section 13.04 Monthly Statements to Certificateholders...............15
Section 13.05 Statements to Class B Certificateholders...............16
ARTICLE XIV
OPTIONAL TERMINATION.........................................................17
Section 14.01 Repurchase at the Option of the [Depositor]............17
Section 14.02 Procedure Upon Optional Termination....................17
ARTICLE XV
MISCELLANEOUS................................................................18
Section 15.01 Standard Terms.........................................18
Section 15.02 Ratification of Standard Terms.........................18
Section 15.03 Amendment..............................................18
Section 15.04 Whole Class A Certificates.............................19
Section 15.05 Counterparts...........................................19
Section 15.06 Governing Law..........................................19
Section 15.07 Recordation of Agreement...............................19
Section 15.08 Severability of Provisions.............................20
Exhibits
Form of Class A Certificate................................................ A-1
Form of Class B Certificate................................................ B-1
REFERENCE AGREEMENT, dated as of _______ 200__, by and among
Xxxxxxx Sachs Asset Backed Securities Corp. , a Delaware corporation, as
depositor (the "Depositor"), [____________________], a [_______________]
corporation, as master servicer (the "Master Servicer"), and
[________________________], a ______________ corporation, as trustee,
(together with its successors in trust thereunder as provided in the Agreement
referred to below, the "Trustee").
PRELIMINARY STATEMENT
The Depositor has duly authorized the execution and delivery
of this Reference Agreement and the incorporation, to the extent permitted
herein, of the Standard Terms and Provisions of Pooling and Servicing (the
"Standard Terms") attached hereto to provide for the issuance of its Conduit
Manufactured Housing Contract Pass-Through Certificates, Series ____ issued as
provided herein and delivered by the Trustee to the Depositor as provided
hereunder. The Reference Agreement, incorporating the Standard Terms, is
sometimes referred to herein as the Agreement. All references herein to
Sections or Articles of the Agreement shall be construed to mean Sections or
Articles of this Reference Agreement or of the Standard Terms as the Section
numbers and context may require and capitalized terms used herein shall have
the meanings ascribed to them in the Standard Terms or the Reference
Agreement. The Depositor is the owner of the Contracts (as hereinafter
defined) and the other property being conveyed by it to the Trustee as part of
the Trust Fund (as hereinafter defined) and has duly authorized the execution
and delivery of this Agreement to provide for the conveyance to the Trustee of
the Trust Fund. [By the execution and delivery of this Agreement, the
Depositor has agreed that it will elect to treat the Trust Fund as, and that
the affairs of the Trust Fund shall be conducted so as to qualify as, a "real
estate mortgage investment conduit" ("REMIC") pursuant to Section 860D of the
Code.] All covenants and agreements made by the Depositor herein and in the
Standard Terms are for the benefit and security of the Certificateholders. The
Depositor is entering into this Reference Agreement and the Standard Terms,
and the Trustee is accepting the trusts created hereby and thereby, for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained,
the Depositor, the Master Servicer and the Trustee agree as follows:
ARTICLE XI
CONVEYANCE OF TRUST FUND;
DESCRIPTION OF THE CERTIFICATES
Section 11.01 Designation.
The Certificates shall be designated generally as the
Conduit Manufactured Housing Contract Pass-Through Certificates, Series
_______.
Section 11.02 Conveyance of Trust Fund; Issuance of
Certificates.
In exchange for the Certificates, the Depositor hereby
delivers to the Trustee, without recourse, for the benefit of all present and
future Holders of the Certificates, all of the Depositor's right, title and
interest (other than with respect to any Retained Yield specified in Section
11.21) in and to (a) the Contracts listed in Schedule I to this Agreement,
which the Depositor causes to be delivered to the Trustee, together with the
Contract Files relating to the Contracts and the other property in respect of
such Contracts, as specified in Section 2.01, and the proceeds thereof payable
after the Cut-off Date, net of any amounts payable to the Servicers, the
Master Servicer and the Depositor in accordance with the provisions of the
Standard Terms, (b) the Insurance Policies, if any, relating to the Contracts,
(c) property that secured a Contract and that has been acquired by
Repossession, (d) [the Depositor's rights under the Warranty and Servicing
Agreements with respect to the Contracts, (e)] the Certificate Account and all
amounts deposited therein pursuant to the applicable provisions of the
Agreement, net of amounts payable to the Servicers, the Master Servicer and
the Depositor, as provided in Sections 3.18 and 3.19 and net of any Retained
Yield and Administrative Fee payable to the Depositor, as specified in
Sections 3.19 and 11.21 (f) [the Performance Bond and the proceeds thereof, as
provided in Section 3.17, and (g)] all proceeds of the conversion, voluntary
or involuntary, of any of the foregoing into cash or other liquid property.
The Trustee acknowledges the transfer and assignment to it
of the Contracts and the delivery of the Contract Files to it (or, with
respect to the Contracts subject to a Custodial Agreement, to the respective
Custodian on its behalf) and the other property included in the Trust Fund,
all to the extent provided above and in Section 2.01, and, concurrently with
such delivery, has delivered to or upon the order of the Depositor, in
exchange for the Contracts, Certificates duly authenticated and duly executed
by the Trustee in authorized denominations evidencing the entire ownership of
the Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the
rights referred to above for the benefit of all present and future Holders of
the Certificates and to perform the duties set forth herein and in the
Standard Terms to the best of its ability, to the end that the interests of
the Holders of the Certificates may be adequately and effectively protected.
Section 11.03 Delivery of Documents.
In connection with the foregoing conveyance, the creation of
the Trust Fund and the issuance of the Certificates pursuant to Section 11.02
and 2.01, the Depositor hereby delivers to and/or deposits with the Trustee
the following documents, instruments and property related to the Certificates:
(1) Opinion of Counsel. Opinion(s) of Counsel (in which such
counsel is entitled to rely upon certificates, opinions or representations as
to matters of fact by Authorized Officers of the Depositor or the Trustee and
governmental officials and, as to matters involving the laws of any state
other than the state in which such counsel is admitted to practice, upon an
Opinion of Counsel satisfactory to the Trustee) addressed to the Trustee to
the effect that:
(a) the Depositor has been duly incorporated and is
validly existing as corporation in good standing under the laws of
the State of Delaware, with corporate power to own its properties, to
conduct its business as now conducted by it and to enter into and
perform its obligations under this Agreement;
(b) assuming due execution and delivery thereof by the
Trustee, this Agreement, as executed and delivered by the Depositor,
is the valid, legal and binding obligation of the Depositor,
enforceable in accordance with its terms, subject to bankruptcy,
reorganization, insolvency and other laws affecting the enforcement
of creditors' rights generally and to general principles of equity;
(c) the Certificates, assuming that they have been duly
and validly authorized, executed, delivered and issued by the
Trustee, will, when authenticated by the Certificate Registrar
pursuant to this Agreement and delivered to or upon the order of the
Depositor, be valid, legal and binding instruments, entitled to the
benefits of this Agreement;
(d) immediately prior to the conveyance thereof to the
Trustee, the Depositor had corporate power and authority to convey
the Contracts and other property included in the Trust Fund to the
Trustee pursuant to this Agreement;
(e) such action has been taken with respect to delivery
of possession of the Contracts and other property included in the
Trust Fund on the Delivery Date and with respect to the execution and
delivery of all requisite documents as is necessary to make effective
the conveyance of such property to the Trustee, with either the
details of such action recited therein, or the absence of any such
action being necessary to make such conveyance effective stated
therein;
(f) the Depositor has effectively conveyed to the
Trustee all of its right, title and interest in and to the Contracts
and other property included in the Trust Fund on the Delivery Date;
(g) this Agreement is not required to be qualified under
the Trust Indenture Act of 1939; the Trust Fund created by this
Agreement is not required to be registered under the Investment
Company Act of 1940, as amended; the Registration Statement is
effective under the Securities Act of 1933, as amended (the
"Securities Act"), and to the best of such counsel's knowledge, no
stop order suspending such effectiveness has been issued;
(h) no consent, approval, authorization or order of any
state or federal court or governmental agency or body is required for
the consummation by the Depositor of the transactions contemplated
herein, except such as may be required under the blue sky laws of any
jurisdiction in connection with the acquisition of Certificates and
such other approvals as have been obtained; and
(i) the issue and sale of the Certificates and the
fulfillment of the terms of this Agreement will not conflict with or
result in a breach or violation of, any term or provision of, or
constitute a default under, the certificate of incorporation or
by-laws of the Depositor, or, to the knowledge of such counsel, any
indenture or other agreement or instrument to which the Depositor is
a party or by which it is bound, or any statute or regulation
applicable to the Depositor or, to the knowledge or such counsel, any
order of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Depositor.
(2) The Contracts. The Contracts included in the Trust Fund,
in the manner specified in Section 2.01.
(3) Performance Bond. The Performance Bond as specified in
Section 2.01.
(4) Officers' Certificate of Issuer of the Performance Bond.
An Officers' Certificate of the issuer of the Performance Bond to the effect
that the Performance Bond is in full force and effect with respect to the
obligations of the Master Servicer under this Agreement.
(5) Opinion of Counsel for the Issuer of the Performance
Bond. An Opinion of Counsel for the issuer of the Performance Bond (the
"issuer") dated the Delivery Date, to the effect that:
(a) the issuer is duly organized, validly existing under
the laws of the state of its incorporation, is duly qualified to do
business in all jurisdictions where the nature of its operations as
contemplated by the Performance Bond issued by such issuer legally
requires such qualification, and has the power and authority
(corporate and other) to issue, and to take all action required of it
under, such Performance Bond;
(b) the execution, delivery and performance by the
issuer of the Performance Bond issued by such issuer has been duly
authorized by all necessary corporate action on the part of the
issuer, and under present law does not and will not contravene any
law or governmental regulation or order presently binding on the
issuer or the charter or the by-laws of the issuer or contravene any
provision of or constitute a default under any indenture, contract or
other instrument to which the issuer is a party or by which the
issuer is bound;
(c) the execution, delivery and performance by the
issuer of the Performance Bond issued by such issuer does not require
the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any federal,
state or other governmental agency or authority that has not
previously been effected; and
(d) the Performance Bond issued by such issuer has been
duly issued and constitutes a legal, valid and binding agreement of
the issuer, enforceable against the issuer in accordance with its
terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally or by general principles
of equity.
(7) Opinion of Counsel to the Master Servicer. An Opinion of
Counsel to the Master Servicer, dated not later than the Delivery Date, to the
effect that:
(a) the Master Servicer is a duly organized and validly
existing corporation in good standing under the laws of the State of
___________; the Master Servicer is duly qualified to do business as
a foreign corporation in and is in good standing under the laws of
each jurisdiction where the nature of its operations contemplated by
this Agreement requires such qualification;
(b) the Master Servicer has the corporate power and
authority to enter into this Agreement and to consummate the
transactions contemplated thereby; the execution, deliver and
performance of this Agreement have been duly authorized by all
requisite corporate action on the part of the Master Servicer and (i)
do not conflict with or result in, or will not conflict with or
result in a breach of the [certificate] [articles] of incorporation
or by-laws of the Master Servicer, or to such counsel's knowledge,
any of the provisions of any indenture, mortgage, contract or other
instrument to which the Master Servicer is a party or by which it is
bound or (ii) do not result in the creation or imposition of any
lien, charge or encumbrance upon any of its property pursuant to the
terms of any such indenture, mortgage, contract or other instruments;
and
(c) this Agreement constitutes a legal, valid and
binding agreement of the Master Servicer, enforceable against the
Master Servicer in accordance with its terms, subject, as to
enforceability, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting creditors' rights generally and
to principles of equity.
Section 11.04 Denominations.
The Certificates will be issued in fully registered form in
minimum Denominations of $_______________ and integral multiples thereof [and
one Certificate may be issued in such Denomination as may be necessary to
represent the remainder of the Principal Balance of the Contracts on the
Cut-off Date.]
Section 11.05 Principal Balance.
The Principal Balance of the Contracts on the Cut-off Date,
exclusive of principal payments due and payable on or before such date, is
$_____.
Section 11.06 Distributions on the Certificates.
On each Distribution Date, the Master Servicer shall make
distributions to the Certificateholders in the amounts and in the manner
specified in Section 13.02 and in the forms of the Certificates.
Section 11.07 Place and Notice for Final Distribution on
Certificates.
(a) The final distribution made on each Certificate on
any Distribution Date shall be distributable upon presentation and
surrender thereof at the office or agency of the Trustee maintained
for such purpose in the Borough of Manhattan, City and State of New
York pursuant to Section 5.02.
(b) Notice of final distribution on any Certificate on
any Distribution Date or Optional Termination Date shall be mailed no
later than the tenth day prior to the applicable Distribution Date or
Optional Termination Date.
Section 11.08 Pass-Through Rate.
The Pass-Through Rate is _____%.
Section 11.09 Distribution Dates.
The Distribution Dates for the Certificates are the _______
day of each month, or, if such day is not a Business Day, the next succeeding
Business Day, commencing __________ ___, 200__.
Section 11.10 Record Dates.
The Record Date for each Distribution Date will be the close
of business on the last day of the month preceding the month in which the
applicable Distribution Date occurs, or if such day is not a Business Day, the
next preceding Business Day.
Section 11.11 Contracts.
The Contracts transferred and assigned to the Trustee by the
Depositor are the Contracts identified in the Contracts Schedule attached
hereto as Schedule I.
Section 11.12 Forms Generally.
The Class A[, Class A-1, Class A-2] and Class B Certificates
and the Certificate Registrar's certificate of authentication shall be in
substantially the forms set forth as Exhibits A[, X-0, X-0] and B hereto,
respectively, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Agreement or as may, in
the judgment of the Master Servicer, the Trustee or the Depositor be
necessary, appropriate or convenient to comply, or facilitate compliance, with
applicable laws, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange on which any of
the Certificates may be listed, or as may, consistently herewith, be
determined by the officers executing such Certificates, as evidenced by their
execution thereof.
The definitive Certificates shall be printed, lithographed
or engraved or produced by any combination of these methods or may be produced
in any other manner permitted by the rules of any securities exchange on which
any of the Certificates may be listed, all as determined by the officers
executing such Certificates, as evidenced by their execution thereof.
[Section 11.13. Termination at Option of the Depositor.
The Depositor may, at its option, repurchase from the Trust
Fund all Contracts remaining outstanding on any Distribution Date on or after
the date on which the Principal Balance of such Contracts is less than ____%
of the Principal Balance of the Certificates on the Cut-off Date, in the
manner and at the Repurchase Price [provided in Article XIV].]
Section 11.14 Substitution.
The Depositor or the Servicer of a Contract may substitute
for such Contract a Substitute Contract or Contracts pursuant to Section 2.02,
2.04 or 2.08, which substitution shall be accomplished within [three months]
of the Closing Date and in the manner and subject to the conditions set forth
in Section 2.07. [Any funds deposited in the Certificate Account pursuant to
such substitution shall not exceed 1/2 of 1% of the Principal Balance of the
Contracts, after giving effect to such substitution.]
Section 11.15 Wire Transfer Eligibility.
The minimum Denomination eligible for wire transfer on
each Distribution Date is $___________.
Section 11.16 Required Rating.
The Certificates shall have been rated "_____" by
__________ ______________.
[Section 11.17 REMIC Treatment.
The provisions of this Agreement shall be construed so as to
carry out the intention of the parties that the Trust Fund be treated as a
REMIC at all times until the Certificates are retired and this Agreement is
terminated pursuant to Article IX or Article XIV.]
Section 11.18 Performance Bond.
A specimen of the Performance Bond is attached hereto as
Exhibit [ ]. The Performance Bond has been issued by __ __________, a
_________ corporation.
Section 11.19 Warranty and Servicing Agreements.
The Warranty and Servicing Agreements with respect to the
Contracts included in the Trust Fund are listed on Schedule [ ] hereto.
Section 11.20 Custodial Agreements.
The Custodial Agreements with respect to the Contracts
included in the Trust Fund are listed on Schedule [ ] hereto.
Section 11.21 Retained Yield; Administrative Fee; Servicing
Compensation.
On each Distribution Date, the Master Servicer shall remit
to the Depositor, by wire transfer of immediately available funds, from
payments of interest and other collections with respect to interest on the
Contracts deposited in the Certificate Account a Retained Yield equal to __%
of the Principal Balance of each Contract and an Administrative Fee equal to
__% of the Principal Balance of each Contract as provided in Section 3.19. The
Master Servicer shall be entitled to retain an amount in respect of each
interest payment on a Contract equal to the excess of each interest payment on
such Contract over the sum of (i) the Retained Yield, (ii) the Administrative
Fee and (iii) the Pass-Through Rate as provided in Section 3.19, and such
other amounts as provided in accordance with the provisions of the Standard
Terms.
Section 11.22 Cut-off Date.
The Cut-off Date is _______, 200_.
Section 11.23 Certificate Registrar.
The Certificate Registrar is the Trustee.
Section 11.24 Authenticating Agent.
The Authenticating Agent is the Trustee.
Section 11.25 Paying Agent.
The Paying Agent is the Master Servicer.
[Section 11.26 Limited Guarantor.
The Limited Guarantor is ____________.
Section 11.27 Limited Guarantee and Guarantee Amount.
[Relevant description and amounts to be provided.]
Section 11.28 Limited Guarantee Fee.
The Limited Guarantee Fee is ________________.]
[Section 11.29. Applicability of Certain Provisions of
Standard Terms.
The provisions of Sections 2.03(b), 3.13 with respect to the
Pool Insurance Policy, 3.14 with respect to the Special Hazard Insurance
Policy, 3.23 and 3.24 of the Standard Terms shall not apply to the
Certificates.]
ARTICLE XII
DEFINITIONS
Article One of the Standard Terms provides that the meaning
of certain defined terms used in this Agreement shall, when applied to a
particular Series of Certificates, be as defined herein. With respect to the
Certificates, the following definitions shall apply:
APR: The annualized percentage rate of interest on a Contract.
Administrative Fee: The percentage rate per annum of the
Principal Balance from time to time of each Contract that is payable to the
Depositor out of each interest payment on a Contract as compensation for the
performance of duties related to the administration of the Trust Fund, which
percentage is set forth in Article XI.
Aggregate Losses: For any given period, the aggregate amount
of delinquencies, losses and other deficiencies in the amount due to the Class
A Certificateholders paid or borne by the Class B Certificateholders ("payment
deficiencies") during such period, whether by way of withdrawal from the
Reserve Fund, reduction in amounts otherwise distributable to the Class B
Certificateholders on any Distribution Date or otherwise, less the aggregate
amount of previous payment deficiencies recovered by the Trust Fund during
such period in respect of the Contracts giving rise to previous payment
deficiencies, including without limitation such recoveries resulting from the
receipt of delinquent principal and/or interest payments, Liquidation Proceeds
and insurance proceeds (net, in each case, of the Retained Yield, unpaid
Servicing Fees, foreclosure costs and other servicing costs, expenses and
advances relating to such Contracts).
Agreement: The Standard Terms and Provisions of Pooling and
Servicing together with this Reference Agreement, and all amendments and
supplements hereto.
Authenticating Agent: The authenticating agent specified in
Section 11.24.
Certificate: Any one of the Class A Certificates, [Class A-1
Certificates, Class A-2 Certificates,] or the Class B Certificates executed by
or on behalf of the Depositor and authenticated by or on behalf of the Trustee
in substantially the forms set forth in Exhibits A[, X-0, X-0] and B hereto,
respectively.
Certificate Registrar: The registrar appointed and
identified in Section 11.23.
Certificateholder: The registered holder of a Certificate.
Class A Certificate: Any one of the Class A-[1 Certificates,
Class A-2 Certificates] or Whole Class A Certificates.
[Class A-1 Certificate: A Certificate designated as a Class
A-1 Certificate in substantially the form set forth as Exhibit A-1 hereto.
Class A-2 Certificate: A Certificate designated as a Class
A-2 Certificate in substantially the form set forth as Exhibit A-2 hereto.]
Class B Certificate: A Certificate designated as a Class B
Certificate in substantially the form set forth as Exhibit B hereto.
Contracts: The Contracts listed on the Contract Schedule
attached hereto.
Contract Schedule: The list of Contracts transferred on the
Delivery Date to the Trustee as part of the Trust Fund for the Certificates,
which list is attached hereto as Schedule I.
Deleted Contract: A Contract replaced or to be replaced by a
Substitute Contract.
Delivery Date: _________ __, 200_.
Denomination: For each Certificate, the amount designated as
such on the face thereof; the aggregate of the denominations of the Class
A[-1] Certificates and Class B Certificates being equal to the aggregate
Principal Balances of the Contracts on the Cut-off Date, exclusive of
principal payments due and payable on or before such date. [The Denominations
of the Class A-2 Certificates shall be their Notional Amounts; the aggregate
Notional Amount for the Class A-2 Certificates for any month will be equal to
the aggregate unpaid principal amount of the Class A-1 Certificates.]
Distribution Date: The [ ] day of each month, or if such
day is not a Business Day, the Business Day immediately following such day,
commencing _________ __, 200_.
Due Date: The first day of the month in which the related
Distribution Date occurs.
[Notional Amount: With respect to the Class A-2
Certificates, their Denominations. The Notional Amount is used solely for the
purpose of determining interest payments and certain other rights of the Class
A-2 Certificateholders, and will be equal to the aggregate unpaid principal
amount on the Class A Certificates as of the date of determination. The
original Notional Amount of a Class A-2 Certificate will be set forth in the
form of such Certificate. The Notional Amount does not represent any interest
in principal payments on the Contracts.]
Optional Termination: The repurchase of the Contracts by the
Depositor pursuant to Section 14.01.
Optional Termination Date: The Distribution Date fixed by
the Depositor for the repurchase of the Contracts pursuant to Article XIV.
Percentage Interest: With respect to a Class A[-1 or Class
A-2 Certificate], the undivided percentage interest obtained by dividing the
Denomination of such Certificate by the aggregate Denominations of all
Certificates of the related Class.
Performance Bond: The performance letter issued by [ ], a
specimen of which is attached hereto as Exhibit [ ].
Repurchase Price: The price, calculated as set forth in
Section 14.01, to be paid by the Depositor in connection with the repurchase
of the Contracts pursuant to an Optional Termination.
Required Distribution: With respect to the Class A
Certificates, the amount described as the "Required Distribution" in the form
of Class A Certificate.
Required Reserve: That amount that, together with the then
outstanding aggregate principal amount of the Class B Certificates, equals the
Subordinated Amount at the time of determination.
Notwithstanding the foregoing, the Required Reserve may be
reduced from time to time to such amount as shall be approved by the Rating
Agencies in letters delivered by the Master Servicer to the Trustee and as
shall not result in a lowering or withdrawal of the current ratings on the
Class A Certificates.
Reserve Fund: The fund established and maintained pursuant
to Section 13.03 hereof.
Retained Yield: The percentage rate per annum of the
principal balance from time to time of each Contract that is retained by the
Depositor and payable out of each interest payment on a Contract, which
percentage is set forth in Article XI and in the Contract Schedule.
Senior Interest: The aggregate undivided interest in the
Contracts evidenced by all Class A Certificates.
Single Certificate: A Certificate issued in a minimum
Denomination of $______.
Subordinated Amount: As of any Determination Date, the
Subordinated Amount shall be the Subordinated Amount as of the preceding
______, minus additions to Aggregate Losses since such date through the last
day of the month preceding such Determination Date and plus the recovery of
prior Aggregate Losses for the same period.
The Subordinated Amount on each respective _____ for
purposes of the preceding clause shall be:
(i) on the Cut-off Date and on each anniversary of the
Cut-off Date until ________, __% of the initial aggregate Principal
Balance of the Contracts on the Cut-off Date minus Aggregate Losses since
the Cut-off Date through the last day of the month preceding such
anniversary date;
(ii) on ______, the lesser of (A) the Subordinated
Amount as of the preceding Determination Date, and (B) the sum of (x) __%
of the aggregate unpaid Principal Balance of the Contracts outstanding at
the close of business on ______, and (y) __% of the amount, if any, by
which the amount set forth under (A) exceeds the amount computed under
(x);
(iii) on _______, the lesser of (A) the Subordinated
Amount as of the preceding Determination Date, and (B) the sum of (x)
___% of the aggregate unpaid Principal Balance of the Contracts
outstanding at the close of business on _______, and (y) __% of the
amount, if any, by which the amount set forth under (A) exceeds the
amount computed under (x);
(iv) on ________, the lesser of (A) the Subordinated
Amount as of the preceding Determination Date, and (B) the sum of (x) __%
of the aggregate unpaid Principal Balance of the Contracts outstanding at
the close of business on ________, and (y) __% of the amount, if any, by
which the amount set forth under (A) exceeds the amount computed under
(x);
(v) on _______, the lesser of (A) the Subordinated
Amount as of the preceding Determination Date, and (B) the sum of (x) __%
of the aggregate unpaid Principal Balance of the Contracts outstanding at
the close of business on _______, and (y) __% of the amount, if any, by
which the amount set forth under (A) exceeds the amount computed under
(x);
(vi) and on _______, and on each _______ thereafter, the
lesser of (A) the applicable Subordinated Amount on the preceding _____
minus Aggregate Losses since such preceding _____ through the preceding
______, and (B) __% of the aggregate unpaid Principal Balance of the
Contracts at the close of business on such current ______;
provided, however, that the amount determined for part (B) of clauses (ii)
through (vi) above shall be not less than the sum of the then outstanding
Principal Balances of the then three largest Contracts at the beginning of
each such period.
Notwithstanding the foregoing, the Subordinated Amount shall
be determined in the manner prescribed in clause (i) of this definition for
each anniversary of the Cut-off Date for the entire term of this Agreement,
unless either (a) the Master Servicer certifies to the Trustee, as of the
_____ anniversary of the Cut-off Date, that for each of the past 12 calendar
months as of the Determination Date (or such other date or time period as may
be regularly used by the Master Servicer for delinquency reporting purposes in
its ordinary course of business) not more than __% of the Contracts
(determined by aggregate principal balances) have been delinquent for 60 days
or more, or (b) the Depositor provides the Trustee with a letter from the
Rating Agencies stating that the application of the other portions of this
definition is satisfactory to the Rating Agencies in respect of manufactured
housing pass-through certificates rated by the Rating Agency in one of its two
highest rating categories.
Substitute Contract: A Contract substituted by the Depositor
or the related Servicer for a Deleted Contract which must, on the date of such
substitution, (i) have an outstanding Principal Balance, after deduction of
the principal portion of the monthly payment due in the month of substitution
(or in the case of a substitution of more than one Contract for a Deleted
Contract, an aggregate Principal Balance), not in excess of the Principal
Balance of the Deleted Contract [and not less than __% of Principal Balance of
the Deleted Contract] (the amount of any shortage will be deposited by the
Depositor or the Servicer in the Certificate Account and distributed by the
Master Servicer to Certificateholders in the month of substitution); (ii) have
an APR not less than the APR of the Deleted Contract but not greater than __%
in excess of the APR of the Deleted Contract; (iii) have a remaining term to
maturity not greater than ___ years and not more than ___ years less than the
remaining term of the Deleted Contract; and (iv) comply with each
representation and warranty set forth in Section 2.04 or in the related
Warranty Servicing Agreement.
Trust Fund: The corpus of the trust created by this
Agreement consisting of (i) the Contracts described in the Contract Schedule,
exclusive of the Retained Yield, (ii) all distributions thereon payable after
the Cut-off Date, other than as provided herein, (iii) property that secured a
Contract and has been acquired by Repossession, (iv) amounts remitted from
time to time to the Master Servicer and held from time to time by the Master
Servicer in the Certificate Account, net of the amounts payable to the Master
Servicer, as provided in this Agreement, (v) the rights of the
Certificateholders in the Primary Credit Insurance Policies and any other
insurance policies with respect to the Contracts, (vi) the rights of the
Certificateholders in the Performance Bond and the proceeds thereof and (vii)
the Depositor's rights under the Warranty and Servicing Agreements with
respect to the Contracts included in the Trust Fund. The Reserve Fund is not,
and will not under any circumstances be deemed to be, included in the Trust
Fund.
Undivided Interest: The undivided interest in the Trust Fund
evidenced by a Whole Class A Certificate or a Class B Certificate, or in the
case of a Class A Certificate other than a Whole Class A Certificate, the
undivided interest evidenced by like Percentage Interests of a Class A[-1 and
a Class A-2 Certificate], as if such Certificates were combined.
Voting Rights: As to any Certificate of any Class, the
portion of the aggregate voting rights of such Class evidenced by such
Certificate which is obtained by dividing the Denomination of such Certificate
by the aggregate Denominations of all Certificates of such Class.
Whole Class A Certificate: Any Class A Certificate that has
been issued upon combination of one or more Class A-1 Certificates and one or
more Class A-2 Certificates pursuant to Section 15.04 hereof, in substantially
the form set forth in Exhibit A hereto.
ARTICLE XIII
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
RESERVE FUND
Section 13.01 Certificate Account.
The Master Servicer shall, prior to the Delivery Date,
establish and maintain, in the name of the Trustee on behalf of the
Certificateholders the Certificate Account, into which the Master Servicer
shall deposit not later than each Distribution Date, the amounts specified in
Section 3.08 and any amounts withdrawn from the Reserve Fund and deposited in
the Certificate Account, as provided in Section 13.03. All distributions to be
made from time to time to the Certificateholders out of funds in the
Certificate Account shall be made by the Master Servicer.
Section 13.02 Distributions.
Subject to Section 9.01 and Section 14.02 hereof respecting
the final distribution, on each Distribution Date the Master Servicer shall
distribute from the Certificate Account to each Certificateholder of record on
the related Record Date, the amount to be distributed to such
Certificateholder pursuant to the respective Certificate or Certificates held
by such Certificateholder, and in accordance with the provisions of Section
13.03. Such distribution shall be made by check mailed on the Distribution
Date to the address of each Certificateholder appearing in the Certificate
Register, except that, with respect to any Holder eligible for wire transfer,
as provided in Section 11.15, distributions shall be made on the Distribution
Date by wire transfer in immediately available funds, provided that such
Certificateholder, not less than two Business Days prior to the related
Distribution Date, shall have furnished the Master Servicer with appropriate
wiring instructions. Distributions may also be made by such other means of
payment as to which each Certificateholder and the Master Servicer shall
agree.
[Section 13.03 Subordination; Reserve Fund; Priority of
Distribution.
(a) The rights of the Class B Certificateholders to receive
distributions with respect to principal of the Class B Certificates on any
Distribution Date shall be subordinated to the rights of the Class A
Certificateholders to receive distributions in respect of the Class A
Certificates to the extent, and only to the extent, of the Subordinated Amount
as of the immediately preceding Determination Date, all in accordance with the
terms of the Class A Certificates and this Agreement. The right of the Master
Servicer to retain or to receive funds from the Certificate Account in
accordance with Section 3.12 for its Servicing Fee on each Contract,
assumption or substitution fees, late payment charges and other obligor
charges, reimbursement of Monthly Advances and expenses or otherwise, shall
not be subordinated to the rights of the Class A Certificateholders or the
Class B Certificateholders. In addition, the Depositor's right to the Retained
Yield and the Administrative Fee shall not be subordinated to the rights of
the Class A Certificateholders or Class B Certificateholders.
(b) The Depositor shall establish and maintain with the
Trustee a separate investment account (the "Reserve Fund"). All amounts shall
be deposited into and withdrawn from the Reserve Fund in accordance with this
Section. The Reserve Fund is not, and will not under any circumstances be
deemed to be, included in the Trust Fund.
(c) The initial Holders of the Class B Certificates grant,
and any future Holders of the Class B Certificates shall be deemed to have
granted, to the Trustee, for the exclusive benefit of the Class A
Certificateholders, a valid and perfected first priority security interest
under the Uniform Commercial Code as in effect from time to time in the State
of [__________________] (the "UCC") in and to all of their right, title and
interest in and to the Reserve Fund, the amounts deposited therein (or
theretofore deposited into the Certificate Account and required pursuant to
this Agreement to be deposited in the Reserve Fund) and all proceeds of the
conversion, voluntary or involuntary, of any of the foregoing into cash,
instruments, securities or other property; provided, however, that all income
from the investment of funds in the Reserve Fund shall be excluded from such
grant and security interest. This grant is made in trust, pursuant to a trust
agreement (the "Reserve Fund Trust Agreement") attached hereto as Exhibit D,
to secure the Class A Certificates equally and ratably and to secure the
obligations of the Class B Certificateholders pursuant to the Class B
Certificates.
(d) The Trustee acknowledges this grant and accepts the
trust under this Section 13.03 in accordance with the provisions hereof.
(e) The Master Servicer, on behalf of the Depositor, will
cause a valid and perfected first priority security interest under the UCC to
be maintained in the Reserve Fund, the amount deposited therein and the
investments thereof (other than any income from the investment of funds in the
Reserve Fund) in order to secure the full and timely performance with respect
to the subordination of the Class B Certificates pursuant to this Section
13.03.
(f) All principal distributions allocable to Class B
Certificateholders and not distributed to Class A Certificateholders pursuant
to Section 13.03(a) hereof shall be paid into the Reserve Fund until the
Reserve Fund has reached the Required Reserve. Thereafter, such distributions
shall be paid to Class B Certificateholders, except that, if the amount of the
Reserve Fund, after distribution to the Class A Certificateholders on any
Distribution Date, is less than the Required Reserve on such Distribution
Date, the Master Servicer shall withhold from the amounts otherwise
distributable to the Class B Certificateholders all amounts due on account of
principal (or such lesser amounts as may be required to restore the amount of
the Reserve Fund to the Required Reserve) and deposit these amounts in the
Reserve Fund. If at any time, the balance of the Reserve Fund is reduced to
zero, distributions of principal and interest otherwise allocable to the Class
B Certificateholders will be retained until the Reserve Fund balance reaches
an amount equal to the Required Reserve.
(g) If the amount of the Reserve Fund, after taking into
account the distributions to the Class A Certificateholders on any
Distribution Date, is greater than the Required Reserve on that Distribution
Date, the Master Servicer will distribute the amount of the excess to the
Class B Certificateholders on a pro rata basis according to their ownership of
the Class B Certificates. Amounts properly distributed by the Master Servicer
to the Class B Certificateholders pursuant to this Section 13.03 shall be
released from the security interest established by this Section 13.03, and the
Class B Certificateholders will not be required to refund any such distributed
amounts.
(h) Amounts held in the Reserve Fund from time to time shall
continue to be the property of the Class B Certificateholders until withdrawn
from the Reserve Fund pursuant to Section 13.03(i) hereof. Amounts held in the
Reserve Fund shall be invested for the benefit of the Class B
Certificateholders in one or more Eligible Investments, in the manner set
forth in the Reserve Fund Trust Agreement, in the name of the Trustee, as
trustee, in accordance with written instructions from the Master Servicer
unless other written instructions are submitted by the Holders of Class B
Certificates evidencing Voting Rights aggregating not less than 51% of the
Voting Rights evidenced by all of the Class B Certificates, or their designee.
Any investment earnings on funds in the Reserve Fund shall be held by the
Trustee for the benefit of the Class B Certificateholders in accordance with
their respective interests therein and will not be subject to any claims or
rights of the Class A Certificateholders. The Master Servicer shall distribute
to the Class B Certificateholders their share of all earnings not invested in
unmatured Eligible Investments on any Distribution Date. Realized losses, if
any, on amounts invested pursuant to this Section 13.03(h) shall first be
credited against undistributed investment earnings on amounts invested
pursuant to this Section 13.03(h), and shall thereafter be deemed to reduce
the amount on deposit in the Reserve Fund. The Trustee shall in no way be
liable for losses incurred in respect of such investments.
(i) If, on any Distribution Date immediately following a
Determination Date on which the Subordinated Amount was more than zero, the
amount of the distribution to Class A Certificateholders, after taking into
account any Monthly Advance to be made by the Master Servicer with respect to
such Distribution Date, and after giving effect to the distribution to Class A
Certificateholders of amounts otherwise allocable to Class B
Certificateholders on such Distribution Date and amounts in the Certificate
Account being held for future distribution, but before giving effect to any
amount withdrawn from the Reserve Fund, is less than the Required Distribution
on such date, the Master Servicer shall withdraw from the Reserve Fund and
deposit into the Certificate Account the lesser of (a) the entire amount on
deposit in the Reserve Fund; or (b) the amount necessary to make up such
shortage. However, in no event will any amount representing investment
earnings on amounts held in the Reserve Fund be transferred into the
Certificate Account or otherwise used in any manner for the benefit of the
Class A Certificateholders. Amounts so transferred to the Certificate Account
will be withdrawn pursuant to Section 3.12 of the Standard Terms, and will be
applied in the following order:
(1) to the reimbursement of the Master Servicer for
Advances determined by the Master Servicer to be otherwise
nonrecoverable pursuant to Section 3.12(vii), if sufficient funds for
such reimbursement are not otherwise available in the Certificate
Account;
(2) to the payment to the Class A
Certificateholders of amounts distributable to them on such
Distribution Date for scheduled payments of principal and interest
due on the Contracts on the related Due Date;
(3) to the payment to the Class A
Certificateholders of the Principal Balance of Contracts repurchased,
liquidated or repossessed during the calendar month preceding the
month of the Distribution Date and interest thereon at the
Pass-through Rate, as provided in the form of Class A Certificate;
and
(4) to any other permitted application of funds in
the Certificate Account.
The Reserve Fund will terminate when the Subordinated Amount
has been reduced to zero or upon termination of this Agreement pursuant to
Section 9.01 or 14.01 hereof. Upon termination, all amounts remaining in the
Reserve Fund shall be distributed to the Class B Certificateholders in
accordance with their pro rata ownership thereof, and such amounts will not be
subject to any claims or rights of the Class A Certificateholders.]
Section 13.04 Monthly Statements to Certificateholders.
Prior or concurrently with each distribution from the
Certificate Account to the Class A Certificateholders made on a Distribution
Date, the Master Servicer shall cause to be forwarded by mail to each
Certificateholder and to the Trustee a statement setting forth:
(i) the amount of such distribution with respect to each
Class of Certificates;
(ii) the amount of such distribution allocable to principal
on the Contracts, separately identifying the aggregate amount of any
Principal Prepayments included therein;
(iii) the amount of such distribution allocable to interest
on the Contracts;
(iv) the aggregate amount of any Advances by the Servicers
and the Master Servicer included in the amounts actually distributed to
the Class A Certificateholders on the preceding Distribution Date;
(v) the amount of any withdrawal from the Reserve Fund
pursuant to Section 13.03(i) or Section 4.01 included in the amounts
actually distributed to the Class A Certificateholders on the preceding
Distribution Date;
(vi) the amount of servicing compensation received by the
Servicers and the Master Servicer with respect to the monthly period
preceding the related Distribution Date and such other customary
information as the Master Servicer deems necessary or desirable to enable
Certificateholders to prepare their tax returns;
(vii) the amount of Retained Yield and the Administrative
Fee paid to the Depositor;
(viii) the aggregate Principal Balance of the Contracts as
of the close of business on a date not earlier than the Due Date, after
giving effect to payments allocated to principal reported under (ii)
above;
(ix) the number and aggregate Principal Balance of Contracts
(1) more than 30 days delinquent, (2) more than 60 days delinquent, and
(3) in foreclosure, as of the close of business on a date not earlier
than the Due Date;
(x) the book value of any collateral acquired through
Repossession as of the close of business on a date not earlier than the
Due Date;
(xi) the Subordinated Amount as of a date not earlier than
the Due Date, expressed as a dollar amount and as a percentage of the
aggregate Principal Balance of the Contracts reported under (ix) above;
and (xii) the amount remaining in the Reserve Fund on the Distribution
Date after any withdrawal reported under (v) above.
In the case of information furnished pursuant to clauses
(ii) through (vii) above, the amounts shall be expressed as a dollar amount
per Single Certificate.
Upon reasonable advance notice in writing, the Master
Servicer shall provide to each Class A Certificateholder that is a savings and
loan association, bank or insurance company certain reports and access to
information and documentation regarding the Contracts sufficient to permit
such Class A Certificateholders to comply with applicable regulations of the
Federal Home Loan Bank Board or other regulatory authorities with respect to
their investment in the Class A Certificates; provided, however, that the
Master Servicer shall be entitled to be reimbursed by each such Class A
Certificateholder for the actual expenses incurred by the Master Servicer in
providing such reports and access.
Within a reasonable period of time after the end of each
calendar year, the Master Servicer shall cause to be furnished to each Person
who at any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (ii) through (vii) of this
Section 13.04 aggregated for such calendar year or applicable portion thereof
during which such Person was a Certificateholder. Such obligation of the
Master Servicer shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Master Servicer
pursuant to any requirements of the Code as from time to time in effect.
Section 13.05 Statements to Class B Certificateholders.
On each Distribution Date the Master Servicer shall forward
to each Class B Certificateholder and to the Trustee a copy of the report
forwarded to the Class A Certificateholders on such Distribution Date and a
statement setting forth the amounts actually distributed to such Class B
Certificateholder on such Distribution Date and the amounts withheld and
placed in the Reserve Fund on such Distribution Date, together with such other
information as the Master Servicer deems necessary or appropriate. Within a
reasonable period of time after the end of each calendar year, the Master
Servicer shall furnish to each Person who at any time during the calendar year
was a Class B Certificateholder a statement containing the information
provided pursuant to this Section 13.05 aggregated for such calendar year or
applicable portion thereof during which such Person was a Class B
Certificateholder. Such obligation of the Master Servicer shall be deemed to
have been satisfied to the extent that substantially comparable information
shall be provided by the Master Servicer pursuant to any requirements of the
Code, as from time to time in force.
ARTICLE XIV
OPTIONAL TERMINATION
Section 14.01 Repurchase at the Option of the [Depositor].
To the extent specified in Article XI, the Contracts
included in the Trust Fund shall be subject to repurchase at the option of the
[Depositor] as permitted herein on any Optional Termination Date at the
Repurchase Price specified herein.
[The Repurchase Price for any such Optional Termination
shall be equal to the lesser of (a) the aggregate Principal Balance of the
Contracts as of the date of repurchase, together with accrued and unpaid
interest thereon at the Pass-Through Rate through the last day of the month of
such repurchase, plus the Appraised Value of any property acquired in respect
thereof, or (b) the fair market value of the Contracts (as specified below).
For purposes of this Section 14.01, the fair market value of
the Contracts shall be deemed to be the aggregate market value of the
Certificates (determined, in the event that the Certificates are traded in the
over-the- counter securities market, by the most recent bid price for the
Certificates in such market, or, in the event that the Certificates are traded
on a securities exchange, by the average closing sale price for the
Certificates on such exchange for the last five trading days of such exchange
immediately preceding such repurchase or, in the event that the Certificates
are not so traded, on the basis of current prices of securities as determined
by the latest bids made by two dealers making a market in securities deemed by
the Depositor and the Trustee to be most comparable to the Certificates), plus
accrued interest at the Pass-Through Rate through the last day of the month of
repurchase. The right of the Depositor to repurchase the Contracts is
conditioned upon the Depositor's having previously given notice of termination
as required by Section 14.02.]
Section 14.02 Procedure Upon Optional Termination.
(a) In case of any Optional Termination pursuant to Section
14.01, the [Depositor] shall, at least 20 days prior to the Optional
Termination Date (unless a shorter period shall be satisfactory to the Trustee
and the Master Servicer), notify the Trustee and the Master Servicer of such
Optional Termination Date and of the Repurchase Price of the Contracts to be
purchased.
(b) Any repurchase by the [Depositor] of the Contracts shall
be made on the Optional Termination Date by deposit of the Repurchase Price
into the Certificate Account on or before the Distribution Date on which such
repurchase is effected. Upon receipt by the Trustee of an Officer's
Certificate of the Master Servicer certifying as to the deposit of the
Repurchase Price into the Certificate Account, the Trustee and each co-trustee
and separate trustee, if any, then acting as such under this Agreement, shall,
upon the request of the [Depositor] and at the expense of the [Depositor],
execute and deliver all such instruments of transfer or assignment, in each
case without recourse, as shall be reasonably requested by the [Depositor] to
vest title in the Contracts so repurchased to the [Depositor] and shall
transfer or deliver or shall cause the applicable Custodian to transfer or
deliver to the [Depositor] or its designee the repurchased Contracts. Any
distributions on the Contracts received by the Trustee or the Master Servicer
subsequent to the Optional Termination Date shall be promptly remitted by it
to the [Depositor].
(c) Notice of any Optional Termination pursuant to the
provisions of this Article XIV, specifying the Distribution Date upon which
the final distribution shall be made, shall be given promptly by the Master
Servicer by first class mail to Holders of the Certificates mailed no earlier
than the 15th day and not later than the tenth day preceding the Optional
Termination Date. Such notice shall specify (A) the Distribution Date upon
which final distribution on the Certificates will be made upon presentation
and surrender of the Certificates at the office or agency of the Master
Servicer therein designated, (B) the amount of such final distribution and (C)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, such distribution being made only upon presentation and surrender
of the Certificates at the office or agency of the Master Servicer maintained
for such purposes (the address of which shall be set forth in such notice).
The Master Servicer shall give such notice to the Certificate Registrar at the
time such notice is given to Holders of the Certificates. Upon deposit in the
Certificate Account on the applicable Distribution Date of an amount equal to
the Repurchase Price pursuant to Section 14.01 and presentation and surrender
of the Certificates, the Master Servicer shall cause to be distributed to the
Holders of Certificates an amount equal to the Repurchase Price. Payments
received by the Master Servicer with respect to the Contracts in excess of the
Repurchase Price, after giving effect to any amounts to be retained or
distributed by it pursuant to Section 3.12, and all funds, if any, remaining
in the Reserve Fund after allocation of funds to Holders of Certificates,
shall be promptly remitted by the Master Servicer to the [Depositor].
ARTICLE XV
MISCELLANEOUS
Section 15.01 Standard Terms.
The Standard Terms attached hereto is hereby incorporated
herein by reference, to the extent specified herein, and hereby forms a part
of this instrument with the same force and effect as if set forth in full
herein. In the event that any term or provision contained herein shall
conflict or be inconsistent with any term or provision contained in the
Standard Terms, the terms and provisions of this Reference Agreement shall
govern.
Section 15.02 Ratification of Standard Terms.
As incorporated by reference into this Reference Agreement,
the Standard Terms is in all respects ratified and confirmed, and the Standard
Terms and this Reference Agreement shall be read, taken and construed as one
and the same instrument.
Section 15.03 Amendment.
In addition to the amendments permitted by Section 10.01,
this Agreement may also be amended from time to time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of
Certificates aggregating not less than 66% of the interest in the Trust Fund
evidenced by each Class of Certificates for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders of
the Certificates; provided, however, that no such amendment shall (i) reduce
in any manner the amount of, delay the timing of, or change the manner in
which payments received on the Contracts are required to be distributed with
respect to any Certificate, without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of
the Holders of the Certificates, of any Class in a manner other than as
described in (i) above without the consent of the Holders of Certificates of
such Class evidencing Voting Rights aggregating not less than ___% of the
Voting Rights evidenced by all Certificates of such Class or (iii) reduce the
aforesaid percentage of the Certificates of any Class, the Holders of which
are required to consent to any such amendment without the consent of the
Holders of all Certificates of such Class affected thereby then Outstanding.
Promptly after the execution of any amendment to this
Agreement requiring the consent of Certificateholders, the Trustee shall
furnish written notification of the substance of such amendment to each
Certificateholder.
It shall not be necessary for the consent of
Certificateholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
Section 15.04 Whole Class A Certificates.
In addition to the provisions for registration of transfer
and exchange of Certificates in Section 5.02 of the Standard Terms, like
Percentage Interests of Class A-1 Certificates and Class A-2 Certificates may
be exchanged for one or more Whole Class A Certificates having an undivided
interest determined by the matching Percentage Interests of the Class A-1
Certificates and Class A-2 Certificates so exchanged, upon surrender of such
Certificates to be exchanged in accordance with Section 5.02 of the Standard
Terms. For purposes of subclause (ii) of the proviso to Section 15.03, Whole
Class A Certificates shall be treated as if they were not so exchanged.
Section 15.05 Counterparts.
For the purpose of facilitating the recordation of this
Reference Agreement as herein provided and for other purposes, this Reference
Agreement may be executed in any number of counterparts, each of which when so
executed shall be deemed to be an original, but all of such counterparts shall
together constitute but one and the same instrument.
Section 15.06 Governing Law.
This Reference Agreement shall be construed in accordance
with and governed by the substantive laws of the State of [______________]
applicable to agreements made and to be performed in the State of
[_________________] and the obligations, rights and remedies of the parties
hereto and the Certificateholders shall be determined in accordance with such
laws.
Section 15.07 Recordation of Agreement.
This Reference Agreement is subject to recordation in all
appropriate public offices for records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the
Manufactured Homes are situated, and in any other appropriate public recording
office or elsewhere, such recordation to be effected by the Master Servicer at
the expense of the Depositor, or upon direction by the Trustee, but only upon
direction by the Trustee accompanied by an Opinion of Counsel to the effect
that such recordation materially and beneficially affects the interests of
Certificateholders.
Section 15.08 Severability of Provisions.
If any one or more of the covenants, agreements, provisions
or terms of this Agreement shall be for any reason whatsoever held invalid,
then such covenants, agreements, provisions or terms shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the
other provisions of this Reference Agreement or of the Certificates or the
rights of the Holders thereof.
IN WITNESS WHEREOF, the Depositor, the Master Servicer and
the Trustee have caused their names to be signed hereto by their respective
officers thereunto duly authorized and their respective seals, duly attested,
to be hereunto affixed, all as of the day and year first above written.
XXXXXXX XXXXX ASSET BACKED
SECURITIES CORP., as Depositor
By____________________________
[SEAL]
ATTEST:
[NAME OF TRUSTEE], as Trustee
By____________________________
[SEAL]
ATTEST:
[NAME OF MASTER SERVICER],
as Master Servicer
By____________________________
[SEAL]
ATTEST:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this _____ day of __________________, 200_, before me
personally appeared ___________, to me known, who being by me duly sworn, did
depose and say that he resides at ________________, that he is the
_________________ of [ ], one of the corporations described in and which
executed the above instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was
so affixed by order of the Board of Directors of said corporation; and that he
signed his name thereto by like order.
__________________________
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ______ day of ________________, before me personally
appeared _________________, to me known, who being by me duly sworn, did
depose and say, that he resides at ______________, that he is the
____________________ of ______________, the corporation described in and which
executed the above instrument; that he knows the seal of said banking
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said banking
corporation; and that he signed his name thereto by like order.
__________________________
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ______ day of ________________, before me personally
appeared _________________, to me known, who being by me duly sworn, did
depose and say, that he resides at ______________, that he is the
____________________ of [Name of Master Servicer], one of the corporations
described in and which executed the above instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation; and that he signed his name thereto by like order.
__________________________
Notary Public
[NOTARIAL SEAL]
Exhibit A
(Form of Face of Class A - __ Certificate)
CONDUIT MANUFACTURED HOUSING CONTRACT
PASS-THROUGH CERTIFICATES
CLASS A-___, SERIES ___
Evidencing an undivided Percentage Interest in the Class
A-__ Distribution Amount from a trust, consisting of certain manufactured
housing conditional sales contracts and installment loan agreements
transferred by [ ]
____________________
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF [ ] OR OF
ANY OF ITS AFFILIATES EXCEPT AS SET FORTH HEREIN AND IN THE AGREEMENT.
[THE AGGREGATE NOTIONAL AMOUNT OF THE CLASS A-2 CERTIFICATES IS EQUAL TO THE
UNPAID PRINCIPAL AMOUNT OF THE CLASS A-1 CERTIFICATES, BUT IS USED SOLELY FOR
PURPOSES OF DETERMINING INTEREST PAYMENTS AND CERTAIN OTHER RIGHTS AND
OBLIGATIONS OF HOLDERS OF CLASS A-2 CERTIFICATES AND DOES NOT REPRESENT ANY
INTEREST IN PRINCIPAL PAYMENTS OF THE CONTRACTS].
__________________
[The following information is provided solely for purposes of applying federal
income tax original issue discount ("OID") rules to this instrument:
OID:______%
ISSUE DATE:___________________, 200_
YIELD (ASSUMING NO PREPAYMENTS):______%
SHORT ACCRUAL PERIOD YIELD COMPUTATION: EXACT
OID ALLOCABLE TO SHORT ACCRUAL PERIOD: ______%
CUSIP:_____________
ISSUE PRICE: _____%]
No. ____________________ Denomination $__________
Aggregate Denominations of all
Class A-__ Certificates $__________
First Distribution Date: Final Scheduled Distribution Date:
______________, 200_ ___________________________
THIS CERTIFIES THAT ________ is the registered owner of the
undivided Percentage Interest obtained by dividing the Denomination of this
Certificate specified above by the aggregate Denominations of all Class A-__
Certificates specified above in each Class A-__ Distribution Amount from the
Trust Fund referred to below consisting of certain manufactured housing
conditional sales contracts and installment loan agreements (the "Contracts")
sold to the Trust by the [ ] (the "Depositor"), exclusive of a portion of the
interest payable on each Contract, the ownership of which has been retained by
the Depositor (the "Retained Yield"), and certain related property transferred
to the Trust by the Depositor. The Trust Fund was created pursuant to the
Standard Terms and Provisions of Pooling and Servicing dated as of _____, 200_
(the "Standard Terms") and the Reference Agreement dated as of ______, 200_
(the "Reference Agreement" and, together with the Standard Terms, the
"Agreement"), each among the Depositor, _____________, as master servicer (the
"Master Servicer") and, ____________________, as trustee (the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain
of the pertinent provisions of which is set forth herein below. The aggregate
Principal Balance of the Contracts included in the Trust Fund as of _______,
200_ (the "Cut-off Date"), exclusive of payments due on or before such date,
was $__________. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned to them in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate and the Agreement set forth on the reverse hereof, which
provisions shall for all purposes have the same effect as though fully set
forth at this place.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this certificate
to be duly executed under its corporate seal.
Date:
[Seal]
[NAME OF TRUSTEE],
as Trustee
By: ________________________
[Title]
Attest
-----------------------------
Authorized Officer of
[Name of Trustee]
[Form of Certificate of Authentication]
THIS IS ONE OF THE CLASS A-__ CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT
[ ]
REGISTRAR
BY _________________________
AUTHORIZED OFFICER
(Form of Reverse of Class A-___ Certificate)
[ ]
CONDUIT MANUFACTURED HOUSING CONTRACT
PASS-THROUGH CERTIFICATES
CLASS A-___, SERIES ___
This Certificate is one of a duly authorized issue of
Certificates of [ ] designated as its Conduit Manufactured Housing Contract
Pass-Through Certificates, Class A-___, Series ___ (the "Class A-___
Certificates") issued under and subject to the terms, provisions and
conditions of the Agreement. Also issued under the Agreement are Certificates
designated as Conduit Manufactured Housing Contract Pass-Through Certificates,
Class A-___, Series ___ (the "Class A-___ Certificates" and, together with the
Class A-___ Certificates, the "Class A Certificates"), and Certificates
designated as Conduit Manufactured Housing Contract Pass-Through Certificates,
Class B, Series ___ (the "Class B Certificates") which are subordinated in
right of payment to the Class A Certificates to the extent of [the
Subordinated Amount,] as described herein and in the Agreement. (The Class A
Certificates and the Class B Certificates are hereinafter collectively
referred to as the "Certificates.") The aggregate Undivided Interest evidenced
by all Class A Certificates is ___% and the aggregate Undivided Interest
evidenced by all Class B Certificates is ___%. Reference is hereby made to the
Agreement for a statement of the respective rights thereunder of the
Depositor, the Master Servicer, the Trustee and the Holders of the
Certificates and the terms upon which the Certificates are authenticated and
delivered.
This Certificate represents the Percentage Interest obtained
by dividing the Denomination set forth on the face hereof by the aggregate
Denominations of all Class A-___ Certificates in each Class A-___ Distribution
Amount from (i) the Contracts and the proceeds thereof payable after the
Cut-off Date, net of any amounts payable to the Depositor, the Master Servicer
and the Servicers in accordance with the provisions of the Agreement, (ii) the
Certificate Account and all amounts deposited therein pursuant to the
applicable provisions of the Agreement, net of the Retained Yield, the
Administrative Fee and amounts payable to the Servicers, the Master Servicer
and the Depositor, as provided in the Agreement, (iii) property acquired by
repossession or otherwise with respect to the Contracts and (iv) the interest
of the Certificateholders in the Performance Bond, [Alternative Credit
Support,] and all proceeds thereof as provided in the Agreement (such
Contracts, funds, property and interests are herein collectively called the
"Trust Fund").
The Master Servicer shall distribute on the ___ day of each
month or, if such ___ day is not a Business Day, the Business Day immediately
following such ___ day (the "Distribution Date"), commencing ____________,
200_, to the Person in whose name this Certificate is registered at the close
of business on the last Business Day of the month immediately preceding the
month of such distribution (the "Record Date"), an amount equal to the product
of the Percentage Interest evidenced by this Class A-___ Certificate and the
Class A- ___ Distribution Amount. The Class A-___ Distribution Amount on any
Distribution Date shall be an amount equal to ___% of the portion of the
Required Distribution that is allocable to principal that is distributable
with respect to the Senior Interest as defined below, and ___% of the portion
of the Required Distribution that is allocable to interest that is
distributable with respect to the Senior Interest as defined below.
[Until the Subordinated Amount, as defined below, has been
reduced to zero, if the aggregate amount distributable on the Class A
Certificates on any Distribution Date, as described above and after giving
effect to any Monthly Advance, is less than the Required Distribution as
defined below, the Master Servicer shall distribute to the Class A
Certificateholders all or such portion of the amounts otherwise distributable
on such Distribution Date to the Class B Certificateholders as may be required
to cover such shortage. If a shortage remains, the Trustee shall, on or before
such Distribution Date, transfer funds to the Certificate Account from amounts
deposited in the Reserve Fund required to be maintained pursuant to Section
3.25 of the Agreement, in an amount equal to such remaining shortage, or such
lesser amount as is then on deposit in the Reserve Fund.]
[The Required Distribution with respect to the Class A
Certificates on any Distribution Date shall be the sum of:
(i) the aggregate Undivided Interest evidenced by all Class
A Certificates (such aggregate Undivided Interest being the sum of the
aggregate Percentage Interests evidenced by the Class A-1 and Class A- 2
Certificates in the Class A-1 Distribution Amount and Class A-2
Distribution Amount, respectively) (the "Senior Interest") in: (a) until
such time as the Subordinated Amount is reduced to zero, all scheduled
payments of principal and interest (including any advances thereof),
adjusted to a ___% Pass-Through Rate, which payments became due on the
due date to which such Distribution Date related (the "Due Date"),
whether or not such payments are actually received; and (b) after the
Subordinated Amount is reduced to zero, all payments of principal and
interest, adjusted to a ___% Pass-Through Rate, due on such Due Date or
due, but not previously received, since the time the Subordinated Amount
was reduced to zero, but only to the extent such payments are actually
received or advanced prior to the Determination Date;
(ii) the Senior Interest in all Principal Prepayments
received during the month prior to the month of distribution and interest
at the Pass-Through Rate to the end of the month in which such Principal
Prepayments occur;
(iii) the Senior Interest in the sum of (a) the outstanding
Principal Balance of each Contract or property acquired in respect
thereof that was repurchased pursuant to the Agreement or liquidated or
repossessed during the monthly period ending on the day prior to the Due
Date to which such distribution relates, calculated as of the date each
such Contract was repurchased, liquidated or repossessed, and (b) accrued
but unpaid interest on such principal balance, adjusted to the
Pass-Through Rate, to the first day of the month following the month of
such repurchase, liquidation or repossession.]
The Required Distribution will be distributed to the Class A
Certificateholders to the extent that there are sufficient eligible funds
available for distribution to such Class A Certificateholders on a
Distribution Date.
Funds eligible for such purpose with respect to each
Distribution Date shall be the sum of (i) all previously undistributed
payments or other receipts on account of principal (including Principal
Prepayments, if any) and interest on the Contracts, exclusive of the Retained
Yield, subject at any time to the Agreement, including any Liquidation
Proceeds, received by the Master Servicer after the Cut-off Date set forth on
the face hereof, or received prior to the Cut-off Date but due thereafter, and
prior to the Determination Date except (a) payments that were due and payable
on or before the Cut-off Date; (b) Principal Prepayments and Liquidation
Proceeds and all proceeds of any Contracts or property acquired in respect
thereof repurchased pursuant to Sections [2.02, 2.04, 2.08 and 9.01] of the
Agreement received during the month of distribution and all related payments
of interest representing interest for the month of distribution or any portion
thereof; (c) payments, other than Principal Prepayments, that represent early
receipt of scheduled payments of principal and interest due on or after the
first day of the month of distribution; (d) late payments of principal or
interest in respect of which there are any unreimbursed Monthly Advances; (e)
amounts representing reimbursement for certain losses and expenses, all as
described in the Agreement; (f) that portion of each payment of interest on
each Contract in excess of interest at the Pass-Through Rate set forth above
on the unpaid principal balance of such Contract outstanding for the period
for which such payment was received; and (g) to the extent specified in the
Agreement, that portion of the Liquidation Proceeds of Contracts in excess of
the unpaid principal balances thereof and unpaid interest thereon; and (ii)
the Monthly Advance, if any, made by the Master Servicer for the related
period. For the purposes hereof, amounts received by the Master Servicer in
connection with the liquidation of Contracts through repossession, sale, deed
in lieu of foreclosure or otherwise shall be deemed to be payments on account
of principal of Contracts. Any amount in the Certificate Account after the
Required Distribution is made to the Class A Certificateholders will be paid
to the Holders of the Class B Certificates.
[All distributions of principal allocable to Class B
Certificateholders and not distributed to Class A Certificateholders pursuant
to the foregoing provisions hereof will be paid into the Reserve Fund until
the Reserve Fund has reached the Required Reserve, as defined in the
Agreement, and thereafter will be paid to the Class B Certificateholders
except for any amounts of principal required to be paid into the Reserve Fund
to restore it to the Required Reserve. The interests of the Class B
Certificateholders in amounts so deposited in the Reserve Fund, to the extent
described below, are pledged to secure the obligations of the Class B
Certificateholders as described in the Agreement and such amounts are
available for distribution to the Class A Certificateholders in the manner
described above. The subordination of distributions allocable to Class B
Certificateholders is limited to the Subordinated Amount, as defined in the
Agreement, that decreases over time as described in the Agreement and such
subordination applies only to the extent set forth herein and in the
Agreement.
Distributions on this Certificate will be made by the Master
Servicer by check mailed to the address of the Holder hereof entitled thereto
at the address appearing in the Certificate Register or, if eligible for wire
transfer as set forth in Section [11.15] of the Agreement, by wire transfer in
immediately available funds or by such other means of payment as the Holder
hereof and the Master Servicer shall agree upon. Except as otherwise provided
in the Agreement, the final distribution on this Certificate will be made, in
the applicable manner described above, after due notice by the Master Servicer
of the pendency of such distribution and only upon presentation and surrender
of this Certificate at the office or agency designated in such notice.
As provided in the Agreement, deductions and withdrawals
from the Certificate Account may be made by the Master Servicer from time to
time for purposes other than distributions to the Certificateholders, such
purposes including payment of the Retained Yield and Administrative Fee to the
Depositor and reimbursement to the Master Servicer of Monthly Advances and of
certain expenses incurred by it.
The Agreement permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Master Servicer, the Depositor and the Trustee and the
rights of the Holders of the Certificates under the Agreement at any time by
the Depositor, the Master Servicer and the Trustee with the consent of the
Holders of Certificates evidencing Voting Rights aggregating not less than
___% of the aggregate Voting Rights of each Class of Certificates affected
thereby; provided, however, that no such amendment may, without the consent of
the Holders of Certificates evidencing 100% of the Voting Rights of each Class
affected thereby, (i) reduce in any manner the amount of, delay the timing of
or change the manner in which payments received on the contracts are required
to be distributed in respect of any Certificate of such Class or (ii) reduce
the aforesaid percentage of Certificates of each Class, the Holders of which
are required to consent to any such amendments. Any such consent by the Holder
of this Certificate shall be conclusive and binding upon such Holder and upon
all future Holders of this Certificate and of any Certificate issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the Depositor, the Master Servicer and the Trustee to
amend certain terms and conditions set forth in the Agreement without the
consent of Holders of the Certificates issued thereunder.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
on the Certificate Register maintained by the Trustee upon surrender of this
Certificate for registration of transfer at the office or agency maintained
for that purpose by the Trustee in New York, New York, duly endorsed by, or
accompanied by a written instrument of transfer in a form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Class A-___ Certificates
of authorized denominations and for the same aggregate Denomination and
Percentage Interest will be issued to the designated transferee or
transferees.
The Certificates are issuable only in registered form in
minimum Denominations of $_______, and integral multiples of $__________ in
excess thereof, and one Certificate may be issued in such Denomination as may
be necessary to represent the remainder of the aggregate Principal Balance of
the Contracts on the Cut-off Date. As provided in the Agreement and subject to
certain limitations therein set forth, this Certificate is exchangeable for
one or more new Class A-___ Certificates of authorized Denomination and
Percentage Interest, as requested by the Holder surrendering the same. As
further provided in the Agreement, like Percentage Interests of Class A-1
Certificates and Class A-2 Certificates may be exchanged for one or more Whole
Class A Certificates having an Undivided Interest determined by the matching
Percentage Interests of the Class A-1 Certificates and Class A-2 Certificates
so exchanged, upon surrender of such Certificates to be exchanged.
No service charge will be made for such registrations,
transfers or exchanges, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Master Servicer, the Certificate Registrar and the Trustee and
any agent of the Master Servicer, the Certificate Registrar or the Trustee may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Master Servicer, the Certificate
Registrar nor the Trustee nor any such agent thereof shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligation of the Master Servicer to provide
for payments to Certificateholders pursuant to the Agreement) shall terminate
upon the earlier of (a) the repurchase by the Depositor from the Trust Fund of
all Contracts remaining in the Trust Fund and all property acquired with
respect thereto and (b) the later of (i) the maturity or other liquidation of
the last Contract subject thereto and the disposition of all property acquired
upon repossession and (ii) the distribution to Certificateholders of all
amounts in the Certificate Account required to be distributed to them pursuant
to the Agreement. Any such purchase by the [Depositor] will be made in
accordance with Article [ ] of the Agreement. The exercise of such right will
effect early retirement of the Certificates.
Any term used herein that is defined in the Agreement shall
have the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s)
and transfer(s)unto:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address, including postal zip code, or
assignee)
the Percentage Interest in each Class A-___ Distribution Amount evidenced by
the within Certificate and hereby authorize(s) the transfer of registration of
such interest to the assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Certificate
of a like Denomination and Undivided Interest to the above-named assignee and
to deliver such Certificate to the following address:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Dated:_______________________
Social Security or Other Identification: ______________________________________
(signature must be signed as registered)
Tax No. of Assignee ______________________________________
Signature Guaranteed ______________________________________
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the
information of the Master Servicer:
Distribution shall be mailed by check to_____________________
_______________________________________________________________________________
_________________________________________________________________ the account
of ______________________, account number ______________, or, if mailed by
check, to ______________. This information is provided by __________, the
assignee named above, or __________________________, its agent.
EXHIBIT B
[Form of Face of Class B Certificate]
[THE OFFERING AND SALE OF THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, IN RELIANCE ON THE
EXEMPTIONS PROVIDED IN SECTIONS 4(2) AND 4(5) OF SUCH ACT. ANY RESALE OR OTHER
TRANSFER OF THIS CERTIFICATE MUST BE MADE PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR AN APPLICABLE EXEMPTION UNDER SUCH ACT, AND ONLY IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.]
[LEGEND INSERT FOR REMIC RESIDUAL
TRANSFER RESTRICTIONS]
CONDUIT MANUFACTURED HOUSING CONTRACT
PASS-THROUGH CERTIFICATES
CLASS B, SERIES _____
evidencing an undivided interest in a trust fund consisting of certain
manufactured housing conditional sales contracts and installment loan
agreements transferred by
[ ]
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR
OBLIGATION OF [ ] OR OF ANY OF ITS AFFILIATES EXCEPT AS SET FORTH HEREIN AND
IN THE AGREEMENT.
[The following information is provided solely for purposes
of applying federal income tax original issue discount ("OID") rules to this
instrument:
OID:____________
ISSUE DATE:______________, 200__
YIELD (ASSUMING NO REPAYMENTS):_________%
SHORT ACCRUAL PERIOD YIELD COMPUTATION: EXACT
OID ALLOCABLE TO SHORT ACCRUAL PERIOD:_________%
CUSIP: ______________
ISSUE PRICE: ______________%]
Denomination $_________________
First Distribution Date: Final Scheduled Distribution Date:
______________, 200_ __________________________________
THIS CERTIFIES THAT ______________ is the registered owner
of the Undivided Interest obtained by dividing the Denomination set forth
above by the aggregate of the Principal Balances of the Contracts included in
the Trust Fund on the Cut-off Date, as defined below, in the Trust Fund
referred to below consisting of certain manufactured housing conditional sales
contracts and installment loan agreements (the "Contracts") sold to the Trust
by [ ] (the "Depositor"), exclusive of a portion of the interest payable on
each Contract the ownership of which has been retained by the Depositor (the
"Retained Yield"), and certain related property transferred to the Trust by
the Depositor. The Trust Fund was created pursuant to the Standard Terms and
Provisions of Pooling and Servicing dated of ______________, 200___ (the
"Standard Terms") and the Reference Agreement dated as of _____________, 200__
(the "Reference Agreement" and, together with the Standard Terms, the
Agreement") each among the Depositor, _____________________________________,
as master servicer (the "Master Servicer") and _________________________, as
trustee (the "Trustee," which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth herein below. The aggregate Principal Balance of the Contracts included
in the Trust Funds as of _______, 200__ (the "Cut-off Date"), exclusive of
payments due on or before such date, was $_________. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate and the Agreement set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as though fully set
forth at this place.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate
to be duly executed under its corporate seal.
Date:
[NAME OF TRUSTEE]
as Trustee
By: _____________________________
[Title]
[SEAL]
ATTEST
_____________________________
Authorized officer of
[Name of Trustee]
[Form of Certificate of Authentication]
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT
[ ]
REGISTRAR
By:___________________________________
AUTHORIZED OFFICER
Exhibit B
[FORM OF REVERSE OF CLASS B CERTIFICATE]
[ ]
CONDUIT MANUFACTURED HOUSING CONTRACT
PASS-THROUGH CERTIFICATES
CLASS B, SERIES ______
This Certificate is one of a duly authorized issues of
Certificates of [ ] designated as its Conduit manufactured Housing Contract
Pass-Through Certificates, Class B, Series ___ (the "Class B Certificates")
issued under and subject to the terms, provisions and conditions of the
Agreement. Also issued under the Agreement are Certificates designated as
Conduit Manufactured Housing Contract Pass-Through Certificates, Class A,
Series ___ (the "Class A Certificates") issued in two sub-classes (the "Class
X- 0 Certificates" and the "Class A-2 Certificates"). The Class B Certificates
are subordinated in right of payment to the Class A Certificates to the extent
of the Subordinated Amount as described herein and in the Agreement. (The
Class A Certificates and the Class B Certificates are hereinafter collectively
referred to as the "Certificates.") The aggregate undivided interest evidenced
by all Class A Certificates is __% and the aggregate undivided interest
evidenced by all Class B Certificates is __%. Reference is hereby made to the
Agreement for a statement of the respective rights thereunder of the
Depositor, the Master Servicer, the Trustee and the Holders of the
Certificates and the terms upon which the Certificates are authenticated and
delivered.
This Certificate represents the undivided interest obtained
by dividing the Denomination set forth on the face hereof by the aggregate of
the Principal Balances of the Contracts included in the Trust Fund on the
Cut-off Date in (i) the Contracts and the proceeds thereof payable after the
Cut-off Date, net of any amounts payable to the Depositor, the Master Servicer
and the Servicers in accordance with the provisions of the Agreement, (ii) the
Certificate Account and all amounts deposited therein pursuant to the
applicable provisions of the Agreement, net of the Retained Yield, the
Administrative Fee and amounts payable to the Servicers, the Master Servicer
and the Depositor, as provided in the Agreement, (iii) property acquired by
repossession or otherwise with respect to the Contracts and (iv) the interest
of the Certificateholders in the Performance Bond, and all proceeds thereof as
provided in the Agreement (such Contracts, funds, property and interest are
herein collectively called the "Trust Fund")
The Master Servicer shall distribute on the __ day of each
month, or, if such ___ day is not a Business Day, the Business Day immediately
following such ___ day (the "Distribution Date"), commencing on _______, 200_,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (the "Record Date"), an amount equal to the product of
the Undivided Interest evidenced by this Certificate and the aggregate of (i)
all previously undistributed payments or other receipts on account of
principal (including Principal Prepayments, if any) and interest on the
Contracts, exclusive of the Retained Yield, subject at any time to the
Agreement, including any Liquidation Proceeds, received by the Master Servicer
after the Cut-off Date set forth on the face hereof, or received prior to the
Cut-off Date but due thereafter, and prior to the Determination Date except:
(a) payments that were due and payable on or before the Cut-off Date; (b)
Principal Prepayments and Liquidation Proceeds and all proceeds of any
Contracts or property acquired in respect thereof repurchased pursuant to
Sections 2.02, 2.04, 2.08 and 9.01 of the Agreement received during the month
of distribution and all related payments of interest representing interest for
the month of distribution or any portion thereof; (c) payments, other than
Principal Prepayments, that represent early receipt of scheduled payments of
principal and interest due on or after the first day of the month of
distribution; (d) late payments of principal or interest in respect of which
there are any unreimbursed Monthly Advances; (e) amounts representing
reimbursement for certain losses and expenses, all as described in the
Agreement; (f) that portion of each payment of interest on each Contract in
excess of interest at the Pass-Through Rate set forth above on the unpaid
principal balance of such Contract outstanding for the period for which such
payment was received; and (g) to the extent specified in the Agreement, that
portion of the Liquidation Proceeds of Contracts in excess of the unpaid
principal balances thereof and unpaid interest thereon; and (ii) the Monthly
Advance, if any, made by the Master Servicer for the related period. For the
purposes hereof, amounts received by the Master Servicer in connection with
the liquidation of Contracts through repossession, sale or otherwise shall be
deemed to be payments on account of principal of Contracts.
As provided in the Pooling and Servicing Agreement,
distributions otherwise payable to the Holders of the Class B Certificates are
subordinated to the rights of the Class A Certificateholders to receive
amounts due them to the extent of the Subordinated Amount as defined in the
Agreement. To the extent such distributions otherwise payable to the Holders
of the Class B Certificates on any Distribution Date are not needed to cover
any shortage with respect to the Class A Certificates, the portion of such
distributions representing principal on the Contracts shall be deposited in
the Reserve Fund established pursuant to Section [ ] of the Agreement to
permit the Reserve Fund to attain and maintain the Required Reserve as
specified in the Agreement, and may be released to the Holders of the Class B
Certificates, if at all, only in accordance with the provisions of the
Agreement. Holders of Class B Certificates are not required to refund any
amounts that have previously been properly distributed to them.
Distributions on this Certificate will be made by the Master
Servicer by check mailed to the address of the Holder hereof entitled thereto
at the address appearing in the Certificate Register or, if eligible for wire
transfer as set forth in Section [11.15] of the Agreement, by wire transfer in
immediately available funds or by such other means of payment as the Holder
hereof and the Master Servicer shall agree upon. Except as otherwise provided
in the Agreement, the final distribution on this Certificate will be made, in
the applicable manner described above, after due notice by the Master Servicer
of the pendency of such distribution and only upon presentation and surrender
of this Certificate at the office or agency designated in such notice.
As provided in the Agreement, deductions and withdrawals
from the Certificate Account may be made by the Master Servicer from time to
time for purposes other than distributions to the Certificateholders, such
purposes including payment of the Retained Yield and Administrative Fee to the
Depositor and reimbursement to the Master Servicer of Monthly Advances and of
certain expenses incurred by it.
The Agreement permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Master Servicer, the Depositor and the Trustee and the
rights of the Holders of Certificates under the Agreement at any time by the
Depositor, the Master Servicer and the Trustee with the consent of the Holders
of Certificates evidencing Voting Rights aggregating not less than __% of the
aggregate Voting Rights of each Class of Certificates affected thereby;
provided, however, that no such amendment may, without the consent of the
Holders of Certificates evidencing __% of the Voting Rights of each Class
affected thereby, (i) reduce in any manner the amount of, delay the timing of
or change the manner in which payments received on Contracts are required to
be distributed in respect of any Certificate of such Class, or (ii) reduce the
aforesaid percentages of Certificates of each Class, the Holders of which are
required to consent to any such amendments. Any such consent by the Holder of
this Certificate shall be conclusive and binding upon such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the Depositor, the Master Servicer and the Trustee to
amend certain terms and conditions set forth in the Agreement without the
consent of Holders of the Certificates issued thereunder.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
on the Certificate Register maintained by the Trustee upon surrender of this
Certificate for registration of transfer at the office or agency maintained
for that purpose by the Trustee in New York, New York, duly endorsed by, or
accompanied by a written instrument of transfer in a form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Class B Certificates of
authorized denominations and for the same aggregate Denomination and undivided
interest will be issued to the designated transferee or transferees.
[Additional restrictions to be set forth here]
The Certificates are issuable only in registered form in
minimum Denominations of $_____ and integral multiples of $____ in excess
thereof, and one Certificate may be issued in such Denomination as necessary
to represent the remainder of the aggregate Principal Balance of the Contracts
on the Cut-off Date. As provided in the Agreement and subject to certain
limitations therein set forth, this Certificate is exchangeable for one or
more new Class B Certificates of authorized denominations evidencing a like
aggregate Denomination and Undivided Interest, as requested by the Holder
surrendering the same.
No service charge will be made for such registrations,
transfers or exchanges, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Master Servicer, the Certificate Registrar and the Trustee and
any agent of the Master Servicer, the Certificate Registrar or the Trustee may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Master Servicer, the Certificate
Registrar nor the Trustee nor any such agent thereof shall be affected by
notice of the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligation of the Master Servicer to provide
for payments to Certificateholders pursuant to the Agreement) shall terminate
upon the earlier of (a) the repurchase by the [Depositor] from the Trust Fund
of all Contracts remaining in the Trust Fund and all property acquired with
respect thereto and (b) the later of (i) the maturity or other liquidation of
the last Contract subject thereto and the disposition of all property acquired
upon repossession and (ii) the distribution to Certificateholders of all
amounts in the Certificate Account required to be distributed to them pursuant
to the Agreement. Any such purchase by the [Depositor] will be made in
accordance with Article [XIV] of the Agreement.
The exercise of such right will effect early retirement of
the Certificates. Any term used herein that is defined in the Agreement shall
have the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s)
and transfer(s)unto:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address, including postal zip code, or
assignee)
the Undivided Interest in the Trust Fund evidenced by the within Certificate
and hereby authorize(s) the transfer of registration of such interest to the
assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Certificate
of a like Denomination and Undivided Interest to the above-named assignee and
to deliver such Certificate to the following address:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Dated:_______________________
Social Security or Other Identification: ______________________________________
(signature must be signed as registered)
Tax No. of Assignee ______________________________________
Signature Guaranteed ______________________________________
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the
information of the Master Servicer:
Distribution shall be made by wire transfer in immediately available funds to
______________________________________________________________________________
_________________________________________________________________ the account
of _____________________, account number ______________, or, if mailed by
check, to ______________. This information is provided by __________, the
assignee named above, or __________________________, its agent.
