EXHIBIT 4.1
POOLING AND SERVICING AGREEMENT
among
ORIGEN RESIDENTIAL SECURITIES, INC.
as Depositor
ORIGEN FINANCIAL L.L.C.,
as Originator
ORIGEN SERVICING, INC.,
as Seller and Servicer
[______________________________]
as Backup Servicer
and
[______________________________]
as Trustee
ORIGEN RESIDENTIAL PASS-THROUGH CERTIFICATES], SERIES 200[__] - [__]
Dated as of [_________________]
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. General................................................................................. 3
SECTION 1.02. Specific Terms.......................................................................... 3
SECTION 1.03. Calculations............................................................................ 37
ARTICLE II
ESTABLISHMENT OF TRUST; TRANSFER OF ASSETS
SECTION 2.01. Closing................................................................................. 38
SECTION 2.02. Conditions to the Closing............................................................... 39
SECTION 2.03. [Conveyance of the Subsequent Assets.................................................... 40
SECTION 2.04. Acceptance by Trustee................................................................... 42
SECTION 2.05. REMIC Provisions........................................................................ 43
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties Regarding the Originator and the Seller.................. 45
SECTION 3.02. Representations and Warranties Regarding Each Contract.................................. 48
SECTION 3.03. Representations and Warranties Regarding Each Mortgage Loan............................. 52
SECTION 3.04. Representations and Warranties Regarding the Assets in the Aggregate.................... 57
SECTION 3.05. Representations and Warranties Regarding the Asset Files................................ 60
SECTION 3.06. Repurchase of Assets or Substitution of Assets for Breach of Representations and
Warranties.................................................................................... 60
SECTION 3.07. No Repurchase or Substitution Under Certain Circumstances............................... 62
ARTICLE IV
PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS
SECTION 4.01. Custody of Assets....................................................................... 63
SECTION 4.02. Filings................................................................................. 65
SECTION 4.03. Name Change or Relocation............................................................... 65
SECTION 4.04. Chief Executive Office and Place of Formation........................................... 65
SECTION 4.05. Costs and Expenses...................................................................... 65
ARTICLE V
SERVICING OF ASSETS
SECTION 5.01. Responsibility for Asset Administration................................................. 66
SECTION 5.02. Standard of Care........................................................................ 66
SECTION 5.03. Records................................................................................. 66
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SECTION 5.04. Inspection; Electronic File.............................................................. 67
SECTION 5.05. Collection Account....................................................................... 67
SECTION 5.06. Enforcement.............................................................................. 68
SECTION 5.07. Trustee to Cooperate..................................................................... 69
SECTION 5.08. Costs and Expenses....................................................................... 70
SECTION 5.09. Maintenance of Insurance................................................................. 70
SECTION 5.10. Repossession............................................................................. 73
SECTION 5.11. Title, Conservation, and Disposition of Repo Property and REO Property................... 74
SECTION 5.12. Retitling; Security Interests............................................................ 77
SECTION 5.13. Covenants, Representations and Warranties of Servicer.................................... 77
SECTION 5.14. Payment of Taxes......................................................................... 78
SECTION 5.15. Subservicing Arrangements................................................................ 79
ARTICLE VI
REPORTS AND TAX MATTERS
SECTION 6.01. Monthly Reports.......................................................................... 80
SECTION 6.02. Certificate of Servicing Officer......................................................... 80
SECTION 6.03. Other Data............................................................................... 80
SECTION 6.04. Annual Report of Accountants; Annual Statement of Compliance............................. 80
SECTION 6.05. Statements to Certificateholders......................................................... 81
SECTION 6.06. Payment of Taxes......................................................................... 83
SECTION 6.07. Reports to the Commission; Annual Certification of Commission Filing..................... 84
ARTICLE VII
SERVICE TRANSFER
SECTION 7.01. Event of Termination..................................................................... 86
SECTION 7.02. Transfer................................................................................. 87
SECTION 7.03. Backup Servicer to Act, Appointment of Successor......................................... 88
SECTION 7.04. Notification to Certificateholders....................................................... 89
SECTION 7.05. Effect of Transfer....................................................................... 89
SECTION 7.06. Transfer of Collection Account........................................................... 90
ARTICLE VIII
PAYMENTS
SECTION 8.01. Monthly Payments......................................................................... 90
SECTION 8.02. Permitted Withdrawals from the Collection Account........................................ 91
SECTION 8.03. Payments................................................................................. 92
SECTION 8.04. [Reserved]............................................................................... 95
SECTION 8.05. The Servicer's Purchase Option; Auction Sale; Additional Principal Distribution Amount... 95
SECTION 8.06. [Reserved]............................................................................... 98
SECTION 8.07. [Pre-Funding Account.]................................................................... 98
SECTION 8.08. The Distribution Account................................................................. 99
SECTION 8.09. Trustee Reimbursement Account............................................................ 99
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ARTICLE IX
THE CERTIFICATES
SECTION 9.01. The Certificates......................................................................... 100
SECTION 9.02. Registration of Transfer and Exchange of Certificates.................................... 101
SECTION 9.03. No Charge; Disposition of Void Certificates.............................................. 106
SECTION 9.04. Mutilated, Destroyed, Lost or Stolen Certificates........................................ 106
SECTION 9.05. Persons Deemed Owners.................................................................... 106
SECTION 9.06. Access to List of Certificateholders' Names and Addresses................................ 106
SECTION 9.07. Authenticating Agents.................................................................... 107
ARTICLE X
INDEMNITIES; CERTAIN MATTERS RELATING TO THE ORIGINATOR, THE SELLER,
THE SERVICER AND THE DEPOSITOR
SECTION 10.01. Seller's Indemnities.................................................................... 107
SECTION 10.02. Liabilities to Obligors................................................................. 107
SECTION 10.03. Tax Indemnification..................................................................... 108
SECTION 10.04. Servicer's Indemnities.................................................................. 108
SECTION 10.05. Operation of Indemnities................................................................ 108
SECTION 10.06. Liability of the Originator, the Seller, the Servicer, the Backup Servicer and the
Depositor...................................................................................... 108
SECTION 10.07. Merger or Consolidation of, or Assumption of the Obligations of, the Originator, the
Seller, the Servicer, the Backup Servicer or the Depositor..................................... 109
SECTION 10.08. Limitation on Liability of Servicer, the Backup Servicer, Others........................ 109
SECTION 10.09. Servicer and Backup Servicer Not to Resign.............................................. 110
ARTICLE XI
THE TRUSTEE
SECTION 11.01. Duties of Trustee....................................................................... 111
SECTION 11.02. Certain Matters Affecting the Trustee................................................... 112
SECTION 11.03. Trustee Not Liable for Certificates or Assets........................................... 113
SECTION 11.04. Rights of Certificateholders to Direct Trustee and to Waive Event of Termination........ 113
SECTION 11.05. Trustee's Fees and Expenses............................................................. 114
SECTION 11.06. Eligibility Requirements for Trustee.................................................... 115
SECTION 11.07. Resignation or Removal of Trustee....................................................... 115
SECTION 11.08. Successor Trustee....................................................................... 116
SECTION 11.09. Merger or Consolidation of Trustee...................................................... 117
SECTION 11.10. Tax Returns............................................................................. 117
SECTION 11.11. Obligor Claims.......................................................................... 117
SECTION 11.12. Appointment of Co-Trustee or Separate Trustee........................................... 118
SECTION 11.13. Agents of Trustee....................................................................... 119
SECTION 11.14. Representations and Warranties of the Trustee........................................... 119
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ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Servicer and Backup Servicer Not to Assign Duties or Resign; Delegation of Servicing
Functions........................................................................................ 120
SECTION 12.02. Maintenance of Office or Agency........................................................... 120
SECTION 12.03. Termination............................................................................... 120
SECTION 12.04. Acts of Certificateholders................................................................ 122
SECTION 12.05. Calculations.............................................................................. 123
SECTION 12.06. Assignment or Delegation by Seller or the Originator...................................... 123
SECTION 12.07. Amendment................................................................................. 123
SECTION 12.08. Notices................................................................................... 125
SECTION 12.09. Merger and Integration.................................................................... 127
SECTION 12.10. Headings.................................................................................. 127
SECTION 12.11. Governing Law............................................................................. 127
SECTION 12.12. Recordation of Agreement.................................................................. 127
SECTION 12.13. Limitation on Rights of Certificateholders................................................ 127
SECTION 12.14. Severability of Provisions................................................................ 128
SECTION 12.15. Certificates Nonassessable and Fully Paid................................................. 128
SECTION 12.16. Third-Party Beneficiaries................................................................. 128
SECTION 12.17. Counterparts.............................................................................. 128
SECTION 12.18. Effect of Headings and Table of Contents.................................................. 129
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POOLING AND SERVICING AGREEMENT, dated as of [_________________], among
Origen Residential Securities, Inc., a corporation formed and existing under the
laws of the State of Delaware, as Depositor, (the "Depositor"), Origen Financial
L.L.C., a limited liability company formed and existing under the laws of the
State of Delaware as originator (the "Originator") and Origen Servicing, Inc.
("Origen Servicing"), a corporation organized and existing under the laws of the
State of Delaware, as servicer (the "Servicer") and as the seller (the
"Seller"), [______________________________], as the backup servicer (the "Backup
Servicer") and [________________________], [_____________________], not in its
individual capacity but solely as Trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust that is hereby conveyed to the
Trustee in return for the Certificates. The Trust [(exclusive of the Pre-Funding
Account)] for federal income tax purposes will consist of two REMICs (the
"Subsidiary REMIC" and the "Master REMIC"). The Certificates will represent the
entire beneficial ownership interest in the Trust. The assets of the Trust
[(exclusive of the Pre-Funding Account)] will constitute the assets of the
Subsidiary REMIC and the Subsidiary REMIC will issue eleven uncertificated
regular interests that will be held as the sole assets of the Master REMIC. The
Class R-1 and Class R-2 Interests will be the residual interests in each of the
Subsidiary REMIC and the Master REMIC, respectively. The Class A, Class M, Class
B and Class X Certificates will represent the "regular interests" in the Master
REMIC and the Class R Certificates will represent the single "residual interest"
in each of the Subsidiary REMIC and the Master REMIC. All interests created
hereby will be retired on or before the Latest Possible Maturity Date, which
shall be the Distribution Date in [___________].
The Subsidiary REMIC will be evidenced by the Class 1-Accrual Interest
(the "REMIC 1 Accrual Class"), and the Class 1-A-1, Class 1-A-2, Class 1-A-3,
Class 1-A-4, Class 1-A-5, Class 1-A-6, Class 1-A-7, Class 1-M-1, Class 1-M-2,
Class 1-B-1 Interests (the "REMIC 1 Accretion Directed Classes"), which will be
uncertificated and non-transferable and are hereby designated as the "regular
interests" in the Subsidiary REMIC. The REMIC 1 Accrual Class and each REMIC 1
Accretion Directed Class are each hereby designated regular interests in the
Subsidiary REMIC for federal income tax purposes and will have the following
designations, initial principal balances, pass-through rates, and Corresponding
Classes of the Master REMIC Certificates ("Corresponding Classes"):
REMIC 1 Interests Initial Balance Pass-Through Rate Corresponding Class
-------------------- --------------------------- ----------------- -------------------
Class 1-A-1 Interest (1/2 initial Corresponding Weighted Average A-1
Class Certificate Balance) Net Asset Rate
Class 1-A-2 Interest (1/2 initial Corresponding Weighted Average A-2
Class Certificate Balance) Net Asset Rate
Class 1-A-3 Interest (1/2 initial Corresponding Weighted Average A-3
Class Certificate Balance) Net Asset Rate
Class 1-A-4 Interest (1/2 initial Corresponding Weighted Average A-4
Class Certificate Balance) Net Asset Rate
Class 1-A-5 Interest (1/2 initial Corresponding Weighted Average A-5
Class Certificate Balance) Net Asset Rate
REMIC 1 Interests Initial Balance Pass-Through Rate Corresponding Class
-------------------- --------------------------- ----------------- -------------------
Class 1-A-6 Interest (1/2 initial Corresponding Weighted Average A-6
Class Certificate Balance) Net Asset Rate
Class 1-A-7 Interest (1/2 initial Corresponding Weighted Average A-7
Class Certificate Balance) Net Asset Rate
Class 1-M-1 Interest (1/2 initial Corresponding Weighted Average M-1
Class Certificate Balance) Net Asset Rate
Class 1-M-2 Interest (1/2 initial Corresponding Weighted Average M-2
Class Certificate Balance) Net Asset Rate
Class 1-B-1 Interest (1/2 initial Corresponding Weighted Average B-1
Class Certificate Balance) Net Asset Rate
Class 1 Accrual Interest (1/2 (the sum of the Pool Weighted Average N/A
Principal Balance and the Net Asset Rate
Pre-Funded Amount)
plus 1/2 Closing Date
Overcollateralization Amount)
On each Distribution Date, 50% of the increase in the
Overcollateralization Amount will be payable as a reduction of the principal
balances of the REMIC 1 Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralization
Amount that is attributable to a reduction in the Class Principal Balance of its
Corresponding Class) and will be accrued and added to the principal balance of
the REMIC 1 Accrual Class. All payments of scheduled principal and prepayments
of principal generated by the Assets shall be allocated 50% to the REMIC 1
Accrual Class, and 50% to the REMIC 1 Accretion Directed Classes (principal
payments shall be allocated among such REMIC 1 Accretion Directed Classes in an
amount equal to 50% of the principal amounts allocated to their respective
Corresponding Classes), until paid in full. Notwithstanding the above, principal
payments that are attributable to an Overcollateralization Release Amount shall
be allocated to the REMIC 1 Accrual Class (until paid in full) and payable to
the Class X Certificates. Realized losses shall be applied such that after all
distributions have been made on each Distribution Date (i) the principal
balances of each of the REMIC 1 Accretion Directed Classes is equal to 50% of
the Class Principal Balance of its respective Corresponding Class, and the REMIC
1 Accrual Class is equal to 50% of the aggregate principal balance of the Assets
plus 50% of the Overcollateralization Amount.
The following table sets forth characteristics of the Certificates, each
of which, except for the Class R Certificates, is hereby designated a "regular
interest" in the Master REMIC, together with the minimum denominations and
integral multiples in excess thereof in which such Classes shall be issuable
(except that one Certificate of each Class of Certificates may be issued in a
different amount and, in addition, one Class R Certificate representing the Tax
Matters Person Certificate may be issued in a different amount):
Initial Class Minimum Integral Multiples in
Certificate Balance Pass-Through Rate Denomination Excess of Minimum
------------------- ----------------- ------------ ----------------------
Class A-1 $1,000 $1
Class A-2 $1,000 $1
Class A-3 $1,000 $1
2
Initial Class Minimum Integral Multiples in
Certificate Balance Pass-Through Rate Denomination Excess of Minimum
------------------- ----------------- ------------ ----------------------
Class A-4 $1,000 $1
Class A-5 $1,000 $1
Class A-6 $1,000 $1
Class A-7 $1,000 $1
Class M-1 $1,000 $1
Class M-2 $1,000 $1
Class B-1 $1,000 $1
Class X (3) (4) N/A N/A
Class R $0 N/A 20% N/A
(1) As to any Distribution Date, this rate shall equal the lesser of (x) the
fixed rate per annum set forth above and (y) the Weighted Average Net Asset
Rate.
(2) After the Optional Termination Date, the Pass-Through Rate on the
Class A-6 Certificates shall increase to the lesser of (a) [_______]% per annum
and (b) the Weighted Average Net Asset Rate. After the Optional Termination
Date, the Pass-Through Rate on the Class A-7 Certificates will increase to the
lesser of (a) [_______]% per annum and (b) the Weighted Average Net Asset Rate.
(3) On each Distribution Date, the Class X Certificates will have a notional
balance equal to the Pool Principal Balance.
(4) As to any Distribution Date, the Pass-Through Rate for the Class X
Certificates shall equal the excess of: (i) the Weighted Average Adjusted Net
Contract Rate, less with respect to each of the first three Distribution Dates,
[________]% over (ii) the product of: (A) two and (B) the weighted average
Pass-Through Rate of the REMIC 1 Regular Interests, where the REMIC 1 Accrual
Class is subject to a cap equal to zero and each REMIC 1 Accretion Directed
Class is subject to a cap equal to the Pass-Through Rate on its Corresponding
Class.
In consideration of the mutual agreements herein contained, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. General.
For the purpose of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires, the terms defined in this Article
include the plural as well as the singular, the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision, and Section
references refer to Sections of the Agreement.
SECTION 1.02. Specific Terms.
"Accrual Period": With respect to any Distribution Date and Class of
Certificates, the period from the preceding Distribution Date (or the Closing
Date for the first Distribution Date) through and including the day preceding
the current Distribution Date.
"Additional Asset" means an Additional Contract or an Additional Mortgage
Loan.
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"Additional Contract" means a Contract identified in the List of Contracts
that is not an Initial Contract or a Subsequent Contract.
"Additional Mortgage Loan" means a Mortgage Loan identified in the
Mortgage Loan Schedule that is not an Initial Mortgage Loan or a Subsequent
Mortgage Loan.
"Addition Notice" means, with respect to each transfer of Subsequent
Assets to the Trust pursuant to Section 2.03 of this Agreement, a notice,
substantially in the form of Exhibit O, which shall be given not less than five
Business Days prior to the related Subsequent Transfer Date, of the Seller's
designation of Subsequent Assets to be sold to the Trust and the aggregate
Cut-off Date Principal Balances of such Subsequent Assets.
"Additional Principal Distribution Amount" means, as to any Distribution
Date, the lesser of (1) the Distributable Excess Spread and (2) the
Overcollateralization Deficiency Amount.
["Adjusted Amount Available" means, as to any Distribution Date, the sum
of the Amount Available and any amount withdrawn from the Pre-Funding Account
and deposited in the Distribution Account on such Distribution Date.]
"Adjusted Certificate Principal Balance" means, as of any Distribution
Date, the sum of the Class A Principal Balance, the Class M-1 Adjusted Principal
Balance, the Class M-2 Adjusted Principal Balance and the Class B-1 Adjusted
Principal Balance as of that Distribution Date.
"Advance Payment" means any payment by an Obligor in advance of the
related Due Period in which it would be due under such Contract and which
payment is not a Principal Prepayment.
"Affiliate" of any specified Person means any other Person controlling or
controlled by or under common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" or "controlled" have meanings
correlative to the foregoing.
"Agreement" means this Pooling and Servicing Agreement, as the same may be
amended or supplemented from time to time.
"Amount Available" means, as to any Distribution Date, an amount equal to
(a) the sum of
(i) the amount on deposit in the Collection Account as of the
close of business on the last day of the related Due Period,
and
(ii) any amounts deposited into the Distribution Account on the
Business Day immediately preceding such Distribution Date
pursuant to Section 5.09, minus
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(b) amounts permitted to be withdrawn by the Servicer from the Collection
Account pursuant to clauses (b) - (f), inclusive, of Section 8.02 as of the
close of business on the Business Day preceding such Distribution Date.
"Applicants" has the meaning assigned in Section 9.06.
"Appraised Value" means, with respect to any Manufactured Home, the value
of such Manufactured Home as determined by a professional appraiser (who may be
an employee of the Servicer).
"Asset" means a Contract or Mortgage Loan.
"Asset Documents" mean, collectively, the documents contained in the
Contract Files, Land-and-Home Contract Files and the Mortgage Loan Files.
"Asset File" means with respect to any Contract, Land-and-Home Contract
and Mortgage Loan, the related Contract File, the Land-and-Home Contract File
and the Mortgage Loan File, respectively.
"Asset Purchase Agreement" means the asset purchase agreement, dated as of
__________, 20__, among the Seller, the Depositor and the Originator.
"Asset Rate" As to any Asset, the related Contract Rate or Mortgage Rate,
as applicable.
"Asset Schedule" means the list or lists attached to this Agreement
consisting of the related List of Contracts, if any and the related Mortgage
Loan Schedule, if any.
"Assignment" means an assignment of Mortgage, notice of transfer or
equivalent instrument, in recordable form (excepting therefrom, if applicable,
the mortgage recordation information which has not been required pursuant to the
definition of "Land-and Home Contract File" or "Trustee Mortgage Loan File," as
applicable, or returned by the appropriate recorder's office) which is
sufficient under the laws of the jurisdiction wherein the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which may be
in the form of one or more blanket assignments covering Mortgages secured by
Mortgaged Properties located in the same county, if permitted by law.
"Assumption Fee" means any assumption or other similar fee paid by the
Obligor on a Contract.
"Auction Date" has the meaning assigned in Section 8.05(e).
"Authenticating Agent" means any authenticating agent appointed pursuant
to Section 9.07.
["Backup Servicer" means [__________________________________] its
successors in interest or any successor servicer appointed as herein provided.]
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["Backup Servicing Fee" means with respect to any Distribution Date, an
amount equal to [_______________________________________________]. The Backup
Servicing Fee shall be payable by the Servicer pursuant to Section 8.03(a). Upon
the occurrence of a Service Transfer as contemplated by Section 7.01, payment of
the Backup Servicing Fee shall cease and the Backup Servicer, in its role as
Servicer hereunder, shall be paid the Monthly Servicing Fee. [In addition, the
Backup Servicer shall be entitled to an initial commitment fee of $[______].]]
["Backup Servicing Fee Rate" means for any Distribution Date a per annum
rate expressed as the product of 12 and a fraction the numerator of which is the
Backup Servicing Fee for that Distribution Date and the denominator of which is
the Pool Principal Balance as of the first day of the related Due Period.]
"Book-Entry Certificate" means any Certificate registered in the name of
the Depository or its nominee ownership of which is reflected on the books of
the Depository or on the books of a person maintaining an account with such
Depository (directly or as an indirect participant in accordance with the rules
of such Depository).
"Business Day" means any day other than (a) a Saturday or a Sunday, or (b)
a day on which banking institutions in the States of New York, Virginia,
Michigan, Texas or the state in which the Corporate Trust Office is located are
authorized or obligated by law, executive order or governmental decree to be
closed.
"Certificate Owner" means the person who is the beneficial owner of a
Book-Entry Certificate.
"Certificate Register" means the register maintained pursuant to Section
9.02.
"Certificate Registrar" or "Registrar" means the registrar appointed
pursuant to Section 9.02.
"Certificateholder" or "Holder" means the person in whose name a
Certificate is registered on the Certificate Register, except that, solely for
the purposes of giving any consent, waiver, request or demand pursuant to this
Agreement, any Regular Certificate registered in the name of the Depositor, the
Seller, the Servicer or any of their Affiliates shall be deemed not to be
outstanding and the Percentage Interest evidenced thereby shall not be taken
into account in determining whether the requisite Percentage Interest necessary
to effect any such consent, request, waiver or demand has been obtained;
provided, however, that, solely for the purpose of determining whether the
Trustee is entitled to rely upon any such consent, waiver, request or demand,
only Regular Certificates which the Trustee knows to be so owned shall be so
disregarded.
"Certificates" means the Origen Residential Pass-Through Certificates,
Series 20___-___, Class A, Class M, Class B, Class X and Class R Certificates,
collectively.
"Class A," "Class M," "Class B," or "Class X" means pertaining to each
Class of Class A Certificates, Class M Certificates, Class B and/or Class X
Certificates, as the case may be.
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"Class A Certificate" means any one of the Class X-0, Xxxxx X-0, Class
A-3, Class A-4, Class A-5, Class A-6 and Class A-7 Certificates executed and
delivered by the Trustee substantially in the form set forth in Exhibit A and
evidencing an interest designated as a "regular interest" in the Master REMIC
for purposes of the REMIC Provisions.
"Class A Distribution Amount" means, as to any Distribution Date, the
lesser of (a) the [Adjusted] Amount Available for such Distribution Date (less
any amounts paid to the Trustee, the Servicer or the Backup Servicer pursuant to
Section 8.03(a)(1) through (2)) and (b) the Class A Formula Distribution Amount
for such Distribution Date; provided, that after the Class A-6 Cross-Over Date
the Class A Distribution Amount shall be zero.
"Class A Formula Distribution Amount" means, as to any Distribution Date,
an amount equal to the sum of (a) interest (calculated in the manner specified
in Section 1.03) at (i) the Class A-1 Pass-Through Rate on the Class A-1
Principal Balance, (ii) the Class A-2 Pass-Through Rate on the Class A-2
Principal Balance, (iii) the Class A-3 Pass-Through Rate on the Class A-3
Principal Balance, (iv) the Class A-4 Pass-Through Rate on the Class A-4
Principal Balance, (v) the Class A-5 Pass-Through Rate on the Class A-5
Principal Balance, (vi) the Class A-6 Pass-Through Rate on the Class A-6
Principal Balance, and (vii) the Class A-7 Pass-Through Rate on the Class A-7
Principal Balance, in each case calculated immediately prior to such
Distribution Date, (b) the aggregate Unpaid Class A Interest Shortfall, if any,
(c) the Class A Percentage of the Formula Principal Distribution Amount, (d) any
Unpaid Class A Principal Shortfall and (e) any Additional Principal Distribution
Amount to be distributed to the Class A Certificates pursuant to Section
8.03(a)(12); provided, however, that the aggregate of all amounts distributed
for all Distribution Dates pursuant to clauses (c), (d) and (e) shall not exceed
the sum of the Original Class A-l Principal Balance, the Original Class A-2
Principal Balance, the Original Class A-3 Principal Balance, the Original Class
A-4 Principal Balance, the Original Class A-5 Principal Balance, the Original
Class A-6 Principal Balance and the Original Class A-7 Principal Balance.
"Class A Interest Distribution Amount" means, as to each Class of Class A
Certificates and any Distribution Date, the sum of the amounts specified in
clause (a)(i), (a)(ii), (a)(iii), (a)(iv), (a)(v), (a)(vi) and (a)(vii), as
applicable, of the definition of the term "Class A Formula Distribution Amount"
plus the Unpaid Class A Interest Shortfall, if any, with respect to such Class.
"Class A Interest Shortfall" means, as to any Distribution Date and with
respect to each Class of Class A Certificates, the amount, if any, by which the
amount distributed to Holders of such Class of Class A Certificates on such
Distribution Date pursuant to Section 8.03(a)(3) is less than the Class A
Interest Distribution Amount for such Class.
"Class A Percentage" means, as to any Distribution Date, a fraction,
expressed as a percentage, the numerator of which is the Class A Principal
Balance and the denominator of which is the sum of (a) the Class A Principal
Balance, (b) if the Class M-1 Distribution Test is satisfied, the Class M-1
Principal Balance, otherwise zero, (c) if the Class M-2 Distribution Test is
satisfied, the Class M-2 Principal Balance, otherwise zero, and (d) if the Class
B Distribution Test is satisfied, the Class B Principal Balance, otherwise zero.
7
"Class A Principal Balance" means, as to any Distribution Date, the sum of
the Class Principal Balances of the Class A Certificates.
"Class A Principal Deficiency Amount" means, as to any Distribution Date,
the amount, if any, by which the Pool Principal Balance [plus any Pre-Funded
Amount] is less than the Class A Principal Balance.
"Class A Principal Shortfall" means, as to any Distribution Date, the
amount, if any, by which the amount distributed to Holders of Class A
Certificates on such Distribution Date pursuant to Sections 8.03(a)(8)(i) and
(iii) is less than the Class A Percentage of the Formula Principal Distribution
Amount for such Distribution Date.
"Class A-1 Pass-Through Rate" means [_________]% per annum.
"Class A-1/A-6 Pro Rata Percentage" means the fraction, expressed as a
percentage, the numerator of which is the sum of the Class Principal Balances on
the Closing Date of each of the Class A-1 Certificates, Class A-2 Certificates,
Class A-3 Certificates, Class A-4 Certificates, Class A-5 Certificates and Class
A-6 Certificates and the denominator of which is the Class A Principal Balance
on the Closing Date.
"Class A-2 Pass-Through Rate" means [________]% per annum.
"Class A-3 Pass-Through Rate" means [________]% per annum.
"Class A-4 Pass-Through Rate" means [________]% per annum.
"Class A-5 Pass-Through Rate" means the lesser of (a) [________]% per
annum and (b) the Weighted Average Net Asset Rate.
"Class A-6 Cross-Over Date" means the Distribution Date on which the Class
A-6 Principal Balance (after giving effect to the distributions of principal on
the Class A-6 Certificates on such Distribution Date) is reduced to zero.
"Class A-6 Pass-Through Rate" means on every Distribution Date on or prior
to the Optional Termination Date, the lesser of (a) [________]% per annum and
(b) the Weighted Average Net Asset Rate. On every Distribution Date after the
Optional Termination Date, the lesser of (a) [________]% per annum and (b) the
Weighted Average Net Asset Rate.
"Class A-7 Pass-Through Rate" means on every Distribution Date on or prior
to the Optional Termination Date, the lesser of (a) [________]% per annum and
(b) the Weighted Average Net Asset Rate. On every Distribution Date after the
Optional Termination Date, the lesser of (a) [________]% per annum and (b) the
Weighted Average Net Asset Rate.
"Class A-7 Pro Rata Percentage" means the fraction, expressed as a
percentage, the numerator of which is the Class Principal Balance on the Closing
Date of the Class A-7 Certificates and the denominator of which is the Class A
Principal Balance on the Closing Date.
"Class B Certificate" means any one of the Class B-1 Certificates.
8
"Class B Distribution Test" means, to be considered "satisfied" for any
Distribution Date, that (i) such Distribution Date occurs in or after
[________]; (ii) the Pool Performance Test is satisfied and (iii) the fraction,
expressed as a percentage, the numerator of which is the sum of the Class B
Principal Balance and the Overcollateralization Amount as of such Distribution
Date and the denominator of which is the Pool Principal Balance as of the
immediately preceding Distribution Date, is equal to or greater than
[________]%.
"Class B Percentage" means:
(i) as to any Distribution Date on which the Class B Distribution
Test is not satisfied and the Class A Principal Balance, the
Class M-1 Principal Balance and the Class M-2 Principal
Balance have not been reduced to zero, 0%, and
(ii) as to any other Distribution Date, a fraction, expressed as a
percentage, the numerator of which is the Class B Principal
Balance and the denominator of which is the sum of (a) the
Class A Principal Balance, (b) the Class M-1 Principal
Balance, (c) the Class M-2 Principal Balance and (d) the Class
B Principal Balance.
"Class B-1 Adjusted Principal Balance" means, as of any Distribution Date,
the Class B-1 Principal Balance as of that Distribution Date minus the Class B-1
Liquidation Loss Amount (if any) as of the prior Distribution Date.
"Class B-1 Certificate" means any one of the Class B-1 Certificates
executed and delivered by the Trustee substantially in the form set forth in
Exhibit C-1 hereto and evidencing an interest designated as a "regular interest"
in the Master REMIC for purposes of the REMIC Provisions.
"Class B-1 Cross-Over Date" means the Distribution Date on which the Class
B-1 Principal Balance (after giving effect to the distributions of principal on
the Class B-1 Certificates on such Distribution Date) is reduced to zero.
"Class B-1 Distribution Amount" means, as to any Distribution Date, the
lesser of (a) the Adjusted Amount Available less the sum of (i) any amounts paid
to the Trustee, the Backup Servicer or the Servicer pursuant to Section
8.03(a)(1) through (2), (ii) the Class A Distribution Amount, (iii) the Class
M-1 Distribution Amount, and (iv) the Class M-2 Distribution Amount and (b) the
Class B-1 Formula Distribution Amount for such Distribution Date; provided, that
after the Class B-1 Cross-Over Date the Class B-1 Distribution Amount shall be
zero.
"Class B-1 Formula Distribution Amount" means, as to any Distribution
Date, an amount equal to the sum of (a) interest (calculated in the manner
specified in Section 1.03) at the Class B-1 Pass-Through Rate on the Class B-1
Adjusted Principal Balance as of such Distribution Date, (b) any Unpaid Class
B-1 Interest Shortfall, (c) the Class B Percentage of the Formula Principal
Distribution Amount, (d) any Unpaid Class B-1 Principal Shortfall, (e) any
Additional Principal Distribution Amount to be distributed to the Class B-1
Certificates pursuant to Section 8.03(a)(13), (f) any Class B-1 Liquidation Loss
Interest Amount, and (g) any Unpaid Class B-1 Liquidation Loss Interest
Shortfall; provided, however, that on the Class M-2 Cross-Over Date,
9
the balance of any amounts that would have been distributable on such date
pursuant to clauses (c), (d) and (e) of the term "Class M-2 Formula Distribution
Amount" (assuming a sufficient Amount Available) but for the operation of the
second proviso to such term shall instead be included in clause (c), (d) or (e)
of this definition, as applicable; provided, further, that the aggregate of all
amounts distributed pursuant to clauses (c), (d) and (e) of this definition
shall not exceed the Original Class B-1 Principal Balance.
"Class B-1 Interest Deficiency Amount" means, as to the Class B-1
Certificates and any Distribution Date, the difference, if any, between (i) the
sum of the amounts described in clauses (a), (b), (f) and (g) of the definition
of the term "Class B-1 Formula Distribution Amount" and (ii) the amount
available for distribution to the Class B-1 Certificateholders pursuant to
Section 8.03(a)(6)(i) and (ii) and Section 8.03(a)(11)(iii) and (iv) on such
Distribution Date.
"Class B-1 Interest Distribution Amount" means, as to any Distribution
Date, the amount specified in clause (a) of the definition of "Class B-1 Formula
Distribution Amount" plus the Unpaid Class B-1 Interest Shortfall, if any.
"Class B-1 Interest Shortfall" means, as to any Distribution Date, the
difference, if any, between (A) the sum of (i) the amount distributed to Holders
of the Class B-1 Certificates on such Distribution Date pursuant to Sections
8.03(a)(6)(i) and (ii), and (ii) any amount distributed to the Holders of the
Class B-1 Certificates pursuant to Section 8.03(d) on such Distribution Date,
and (B) the Class B-1 Interest Distribution Amount for such Distribution Date.
"Class B-1 Liquidation Loss Amount" means, as of any Distribution Date,
the lesser of (x) the amount, if any, by which the sum of the Class A Principal
Balance, the Class M-1 Principal Balance, the Class M-2 Principal Balance and
the Class B-1 Principal Balance for such Distribution Date exceeds the sum of
the Pre-Funded Amount plus the Pool Principal Balance for such Distribution Date
(after giving effect to all distributions of principal on the Class A, Class
M-1, Class M-2 and Class B-1 Certificates on such Distribution Date) and (y) the
Class B-1 Principal Balance (after giving effect to all distributions of
principal on the Class B-1 Certificates on such Distribution Date).
"Class B-1 Liquidation Loss Interest Amount" means, as to any Distribution
Date, an amount equal to interest (calculated in the manner specified in Section
1.03) at the Class B-1 Pass-Through Rate on the Class B-1 Liquidation Loss
Amount (if any) for the immediately preceding Distribution Date.
"Class B-1 Liquidation Loss Interest Shortfall" means, as to any
Distribution Date, the amount, if any, by which the amount distributed to
Holders of the Class B-1 Certificates on such Distribution Date pursuant to
Section 8.03(a)(11)(iii) is less than the Class B-1 Liquidation Loss Interest
Amount for such Distribution Date.
"Class B-1 Pass-Through Rate" means, with respect to any Distribution
Date, the lesser of (a) [________]% per annum and (b) the Weighted Average Net
Asset Rate.
"Class B-1 Principal Balance" means, as to any Distribution Date, the
Original Class B-1 Principal Balance less all amounts previously distributed to
Holders of Class B-1 Certificates on account of principal.
10
"Class B-1 Principal Shortfall" means, as to any Distribution Date, the
amount, if any, by which the amount distributed to Holders of Class B-1
Certificates on such Distribution Date pursuant to Section 8.03(a)(11)(ii) is
less than the amount described in clause (c) of the definition of the term
"Class B-1 Formula Distribution Amount."
"Class M Certificate" means any one of the Class M-1 or M-2 Certificates
executed and delivered by the Trustee.
"Class M-1 Adjusted Principal Balance" means, as to any Distribution Date,
the Class M-1 Principal Balance as of that Distribution Date minus the Class M-1
Liquidation Loss Amount (if any) as of the prior Distribution Date.
"Class M-1 Certificate" means any one of the Class M-1 Certificates
executed and delivered by the Trustee substantially in the form set forth in
Exhibit B and evidencing an interest designated as a "regular interest" in the
Trust for the purposes of the REMIC Provisions.
"Class M-1 Cross-Over Date" means the Distribution Date on which the Class
M-1 Principal Balance (after giving effect to the distributions of principal on
the Class M-1 Certificates on such Distribution Date) is reduced to zero.
"Class M-1 Distribution Amount" means, as to any Distribution Date, the
lesser of (a) the Adjusted Amount Available less the sum of (i) any amounts paid
to the Trustee, the Backup Servicer and the Servicer pursuant to Section
8.03(a)(1) through (2) and (ii) the Class A Distribution Amount and (b) the
Class M-1 Formula Distribution Amount for such Distribution Date; provided, that
after the Class M-1 Cross-Over Date the Class M-1 Distribution Amount shall be
zero.
"Class M-1 Distribution Test" means, to be considered "satisfied" for any
Distribution Date, that (i) such Distribution Date occurs in or after
[_____________]; (ii) the Pool Performance Test is satisfied; and (iii) the
fraction, expressed as a percentage, the numerator of which is the sum of the
Class M-1 Principal Balance, the Class M-2 Principal Balance, the Class B
Principal Balance and the Overcollateralization Amount as of such Distribution
Date and the denominator of which is the Pool Principal Balance as of the
immediately preceding Distribution Date, is equal to or greater than
[_________]%.
"Class M-1 Formula Distribution Amount" means, as to any Distribution
Date, an amount equal to the sum of (a) interest (calculated in the manner
specified in Section 1.03) at the Class M-1 Pass-Through Rate on the Class M-1
Adjusted Principal Balance as of such Distribution Date, (b) the aggregate
Unpaid Class M-1 Interest Shortfall, if any, (c) the Class M-1 Percentage of the
Formula Principal Distribution Amount, (d) any Unpaid Class M-1 Principal
Shortfall, (e) any Additional Principal Distribution Amount to be distributed to
the Class M-1 Certificates pursuant to Section 8.03(a)(13), (f) any Class M-1
Liquidation Loss Interest Amount, and (g) any Unpaid Class M-1 Liquidation Loss
Interest Shortfall; provided, however, that on the Class A-6 Cross-Over Date,
the balance of any amounts that would have been distributable on such date
pursuant to clauses (c), (d) and (e) of the term "Class A Formula Distribution
Amount" (assuming a sufficient Amount Available) but for the operation of the
proviso to such term shall instead be included in clause (c), (d) or (e) of this
definition, as
11
applicable; provided, further, that the aggregate of all amounts distributed for
all Distribution Dates pursuant to clauses (c), (d) and (e) shall not exceed the
Original Class M-1 Principal Balance.
"Class M-1 Interest Deficiency Amount" means, as to the Class M-1
Certificates and any Distribution Date, the difference, if any, between (i) the
sum of the amounts described in clauses (a), (b), (f) and (g) of the definition
of the term "Class M-1 Formula Distribution Amount" and (ii) the amount
available for distribution to the Class M-1 Certificateholders pursuant to
Section 8.03(a)(4)(i) and (ii) and Section 8.03(a)(9)(iii) and (iv) on such
Distribution Date.
"Class M-1 Interest Distribution Amount" means, as to any Distribution
Date, the amount specified in clause (a) of the definition of the term "Class
M-1 Formula Distribution Amount" plus the Unpaid Class M-1 Interest Shortfall,
if any.
"Class M-1 Interest Shortfall" means, as to any Distribution Date, the
difference, if any, between (A) the sum of (i) the amount distributed to Holders
of the Class M-1 Certificates on such Distribution Date pursuant to Section
8.03(a)(4)(i) and (ii), and (ii) any amount distributed to the Holders of the
Class M-1 Certificates pursuant to Section 8.03(c) on such Distribution Date,
and (B) the Class M-1 Interest Distribution Amount for such Distribution Date.
"Class M-1 Liquidation Loss Amount" means, as to any Distribution Date,
the lesser of (x) the amount, if any, by which the sum of the Class A Principal
Balance and the Class M-1 Principal Balance for such Distribution Date exceeds
the sum of the Pre-Funded Amount plus the Pool Principal Balance for such
Distribution Date (after giving effect to all distributions of principal on the
Class A and Class M-1 Certificates on such Distribution Date) and (y) the Class
M-1 Principal Balance (after giving effect to all distributions of principal on
the Class M-1 Certificates on such Distribution Date).
"Class M-1 Liquidation Loss Interest Amount" means, as to any Distribution
Date, an amount equal to interest (calculated in the manner specified in Section
1.03) at the Class M-1 Pass-Through Rate on the Class M-1 Liquidation Loss
Amount (if any) for the immediately preceding Distribution Date.
"Class M-1 Liquidation Loss Interest Shortfall" means, as to any
Distribution Date, the amount, if any, by which the amount distributed to
Holders of the Class M-1 Certificates on such Distribution Date pursuant to
Section 8.03(a)(9)(iii) is less than the Class M-1 Liquidation Loss Interest
Amount for such Distribution Date.
"Class M-1 Pass-Through Rate" means the lesser of (a) [______]% per annum
and (b) the Weighted Average Net Asset Rate.
"Class M-1 Percentage" means:
(i) as to any Distribution Date prior to the Class A-6 Cross-Over
Date and on which the Class M-1 Distribution Test is not
satisfied, 0%, and
(ii) as to any Distribution Date after the Class A-6 Cross-Over
Date or on which the Class M-1 Distribution Test is satisfied,
a fraction, expressed as
12
a percentage, the numerator of which is the Class M-1
Principal Balance and the denominator of which is the sum of
(a) the Class A Principal Balance, (b) the Class M-1 Principal
Balance, (c) if the Class M-2 Distribution Test is satisfied,
the Class M-2 Principal Balance, otherwise zero, and (d) if
the Class B Distribution Test is satisfied, the Class B
Principal Balance, otherwise zero.
"Class M-1 Principal Balance" means, as to any Distribution Date, the
Original Class M-1 Principal Balance less all amounts previously distributed to
Holders of Class M-1 Certificates on account of principal.
"Class M-1 Principal Shortfall" means, as to any Distribution Date, the
amount, if any, by which the amount distributed to Holders of Class M-1
Certificates on such Distribution Date pursuant to Sections 8.03(a)(9)(ii) is
less than the Class M-1 Percentage of the Formula Principal Distribution Amount
for such Distribution Date.
"Class M-2 Adjusted Principal Balance" means, as to any Distribution Date,
the Class M-2 Principal Balance as of that Distribution Date minus the Class M-2
Liquidation Loss Amount (if any) as of the prior Distribution Date.
"Class M-2 Certificate" means any one of the Class M-2 Certificates
executed and delivered by the Trustee substantially in the form set forth in
Exhibit B and evidencing an interest designated as a "regular interest" in the
Trust for the purposes of the REMIC Provisions.
"Class M-2 Cross-Over Date" means the Distribution Date on which the Class
M-2 Principal Balance (after giving effect to the distributions of principal on
the Class M-2 Certificates on such Distribution Date) is reduced to zero.
"Class M-2 Distribution Amount" means, as to any Distribution Date, the
lesser of (a) the Adjusted Amount Available less the sum of (i) any amounts paid
to the Trustee, the Backup Servicer and the Servicer pursuant to Section
8.03(a)(1) through (2), (ii) the Class A Distribution Amount, and (iii) the
Class M-1 Distribution Amount and (b) the Class M-2 Formula Distribution Amount
for such Distribution Date; provided, that after the Class M-2 Cross-Over Date
the Class M-2 Distribution Amount shall be zero.
"Class M-2 Distribution Test" means, to be considered "satisfied" for any
Distribution Date, that (i) such Distribution Date occurs in or after
[_____________]; (ii) the Pool Performance Test is satisfied and (iii) the
fraction, expressed as a percentage, the numerator of which is the sum of the
Class M-2 Principal Balance, the Class B Principal Balance and the
Overcollateralization Amount as of such Distribution Date and the denominator of
which is the Pool Principal Balance as of the immediately preceding Distribution
Date, is equal to or greater than [________]%.
"Class M-2 Formula Distribution Amount" means, as to any Distribution
Date, an amount equal to the sum of (a) interest (calculated in the manner
specified in Section 1.03) at the Class M-2 Pass-Through Rate on the Class M-2
Adjusted Principal Balance as of such Distribution Date, (b) the aggregate
Unpaid Class M-2 Interest Shortfall, if any, (c) the Class M-2 Percentage of the
Formula Principal Distribution Amount, (d) any Unpaid Class M-2
13
Principal Shortfall, (e) any Additional Principal Distribution Amount to be
distributed to the Class M-2 Certificates pursuant to Section 8.03(a)(13), (f)
any Class M-2 Liquidation Loss Interest Amount, and (g) any Unpaid Class M-2
Liquidation Loss Interest Shortfall; provided, however, that on the Class M-1
Cross-Over Date, the balance of any amounts that would have been distributable
on such date pursuant to clauses (c), (d) and (e) of the term "Class M-1 Formula
Distribution Amount" (assuming a sufficient Amount Available) but for the
operation of the proviso to such term shall instead be included in clause (c),
(d) or (e) of this definition, as applicable; provided, further, that the
aggregate of all amounts distributed for all Distribution Dates pursuant to
clauses (c), (d) and (e) shall not exceed the Original Class M-2 Principal
Balance.
"Class M-2 Interest Deficiency Amount" means, as to the Class M-2
Certificates and any Distribution Date, the difference, if any, between (i) the
sum of the amounts described in clauses (a), (b), (f) and (g) of the definition
of the term "Class M-2 Formula Distribution Amount" and (ii) the amount
available for distribution to the Class M-2 Certificateholders pursuant to
Section 8.03(a)(5)(i) and (ii) and Section 8.03(a)(10)(iii) and (iv) on such
Distribution Date.
"Class M-2 Interest Distribution Amount" means, as to any Distribution
Date, the amount specified in clause (a) of the definition of the term "Class
M-2 Formula Distribution Amount" plus the Unpaid Class M-2 Interest Shortfall,
if any.
"Class M-2 Interest Shortfall" means, as to any Distribution Date, the
difference, if any, between (A) the sum of (i) the amount distributed to Holders
of the Class M-2 Certificates on such Distribution Date pursuant to Section
8.03(a)(5)(i) and (ii), and (ii) any amount distributed to the Holders of the
Class M-2 Certificates pursuant to Section 8.03(c) on such Distribution Date,
and (B) the Class M-2 Interest Distribution Amount for such Distribution Date.
"Class M-2 Liquidation Loss Amount" means, as to any Distribution Date,
the lesser of (x) the amount, if any, by which the sum of the Class A Principal
Balance, the Class M-1 Principal Balance and the Class M-2 Principal Balance for
such Distribution Date exceeds the sum of the Pre-Funded Amount plus the Pool
Principal Balance for such Distribution Date (after giving effect to all
distributions of principal on the Class A, Class M-1 and Class M-2 Certificates
on such Distribution Date) and (y) the Class M-2 Principal Balance (after giving
effect to all distributions of principal on the Class M-2 Certificates on such
Distribution Date).
"Class M-2 Liquidation Loss Interest Amount" means, as to any Distribution
Date, an amount equal to interest (calculated in the manner specified in Section
1.03) at the Class M-2 Pass-Through Rate on the Class M-2 Liquidation Loss
Amount (if any) for the immediately preceding Distribution Date.
"Class M-2 Liquidation Loss Interest Shortfall" means, as to any
Distribution Date, the amount, if any, by which the amount distributed to
Holders of the Class M-2 Certificates on such Distribution Date pursuant to
Section 8.03(a)(10)(iii) is less than the Class M-2 Liquidation Loss Interest
Amount for such Distribution Date.
"Class M-2 Pass-Through Rate" means, with respect to any Distribution
Date, the lesser of (a) [________]% per annum and (b) the Weighted Average Net
Asset Rate.
14
"Class M-2 Percentage" means:
(i) as to any Distribution Date prior to the Class M-1 Cross-Over
Date and on which the Class M-2 Distribution Test is not
satisfied, 0%, and
(ii) as to any Distribution Date after the Class M-1 Cross-Over
Date or on which the Class M-2 Distribution Test is satisfied,
a fraction, expressed as a percentage, the numerator of which
is the Class M-2 Principal Balance and the denominator of
which is the sum of (a) the Class A Principal Balance, (b) the
Class M-1 Principal Balance, (c) the Class M-2 Principal
Balance, and (d) if the Class B Distribution Test is
satisfied, the Class B Principal Balance, otherwise zero.
"Class M-2 Principal Balance" means, as to any Distribution Date, the
Original Class M-2 Principal Balance less all amounts previously distributed to
Holders of Class M-2 Certificates on account of principal.
"Class M-2 Principal Shortfall" means, as to any Distribution Date, the
amount, if any, by which the amount distributed to Holders of Class M-2
Certificates on such Distribution Date pursuant to Section 8.03(a)(10)(ii) is
less than the Class M-2 Percentage of the Formula Principal Distribution Amount
for such Distribution Date.
"Class Principal Balance" means, as to any Distribution Date and each
Class of Certificates, the Original Principal Balance of such Class less all
amounts previously distributed to Holders of such Class of Certificates on
account of principal.
"Class R Certificate" means any one of the Class R Certificates executed
and delivered by the Trustee substantially in the form of Exhibit C-3 and
evidencing the "residual interest" in each of the Subsidiary REMIC and the
Master REMIC.
"Class X Certificate" means any one of the Class X Certificates executed
and delivered by the Trustee substantially in the form set forth in Exhibit C-2
and evidencing an interest designated as a "regular interest" in the Trust for
the purposes of the REMIC provisions.
"Class X Distribution Amount" means, with respect to any Distribution
Date, the sum of (a) (i) the product of the notional balance of the Class X
Certificates and its Pass-Through Rate as provided in the Preliminary Statement
plus (ii) any accrued but unpaid interest from prior Distribution Dates and, (b)
the amount, if any, of any Overcollateralization Release Amount for such
Distribution Date.
"Closing Date" means [________].
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Security" means, with respect to any Contract, (i) the
security interests granted by or on behalf of the related Obligor with respect
thereto, including a first priority perfected security interest in the related
Manufactured Home, (ii) all other security interests or liens and property
subject thereto from time to time purporting to secure payment of such
15
Contract, whether pursuant to the agreement giving rise to such Contract or
otherwise, together with all financing statements signed by the Obligor
describing any collateral securing such Contract, (iii) all guarantees,
insurance and other agreements or arrangements of whatever character from time
to time supporting or securing payment of such Contract whether pursuant to the
agreement giving rise to such Contract or otherwise, and (iv) all records in
respect of such Contract.
"Collection Account" means the account established and maintained pursuant
to Section 5.05.
"Computer Tape" means the computer tape generated by the Seller which
provides information relating to the Assets and which was used by the Seller in
selecting the Assets, and includes the master file and the history file.
"Contract File" means, as to each Contract, other than a Land-and-Home
Contract, (a) the fully executed original copy of the Contract and security
agreement (if separate), and all modifications thereto, executed by the Obligor
evidencing indebtedness in connection with the purchase of a Manufactured Home,
assigned in blank by the Seller or the Originator (which may be by blanket
assignment), (b) the assignment of the Contract to the Seller or the Originator,
(c) the originals of all assumptions, modifications, consolidation or extension
agreements, if any, signed by the Obligor, with evidence of recording thereon,
if applicable, or copies thereof with a certification that such copy represents
a true and correct copy of the original and that such original has been
submitted for recordation, if applicable, in the appropriate governmental
recording office of the jurisdiction in which the Manufactured Home is located,
(d) either (i) the original title document for the related Manufactured Home or
(ii) a duplicate certified by the appropriate governmental authority which
issued the original thereof or the application for such title document, (e)
evidence of one or more of the following types of perfection of the security
interest in the related Manufactured Home granted by such Contract, as
appropriate: (i) notation of such security interest on the title document, (ii)
an original or copy of the UCC1 financing statements, certified as true and
correct by the Seller or the Originator and all necessary UCC3 continuation
statements with evidence of filing thereon or copies thereof certified by the
Seller or the Originator to have been sent for filing, and UCC3 assignments
executed by the Seller or the Originator in blank, which UCC3 assignments shall
be in form and substance acceptable for filing, or (iii) such other evidence of
perfection of a security interest in a manufactured housing unit as is
customarily relied upon in the jurisdiction in which the related Manufactured
Home is located, (f) an original notarized Obligor's power of attorney for each
Contract, signed by the Obligor, (g) insurance certificates or other evidence of
the issuance of insurance, (h) the original of any guarantee executed in
connection with the promissory note or Contract, if any, (i) the loan transfer
agreement, if any, and (j) evidence of any other collateral security, including
with respect to a Land-in-Lieu Contract, the mortgage or deed of trust, if any.
"Contract Loan-to-Value Ratio" means, as to each Contract including retail
contracts sourced through dealers or brokers, Land-and-Home Contracts sourced
through dealers and correspondents, direct private sales and bulk purchases, a
fraction, the numerator of which is the principal balance of the contract (total
amount financed), and the denominator of which is the sum of the down payment
(the sum of cash, trade-in and land value) plus the principal balance of the
contract (amount financed).
16
"Contract Rate" means, with respect to any particular Contract, the rate
of interest specified in that Contract and computed either on a "simple
interest" basis or a precomputed basis, as specified in the related Contract.
"Contracts" means the manufactured housing installment sales contracts and
installment loan agreements, including any Land-and-Home Contracts, described in
the List of Contracts and constituting part of the corpus of the Trust, which
Contracts are to be assigned and conveyed by the Seller to the Depositor and by
the Depositor to the Trust, and includes, without limitation, all related
security interests and any and all rights to receive payments which are due
pursuant thereto after the applicable Cut-off Date, but excluding any rights to
receive payments which are due pursuant thereto on or before the applicable
Cut-off Date.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of the execution of this Agreement is located at the
address set forth in Section 12.08.
"Custodian" means at any time the Trustee or a financial institution
organized under the laws of the United States or any State, which is subject to
supervision and examination by Federal or State authorities and which is not the
Seller or an Affiliate of the Seller, that is acting at such time as Custodian
of the Asset Files pursuant to Section 4.01.
"Cut-off Date" means with respect to the Initial Assets, [______], and for
the Additional Assets, [______] and for the Subsequent Assets, the date
specified as such in the related Subsequent Transfer Instrument.
"Cut-off Date Pool Principal Balance" means the aggregate of the Cut-off
Date Principal Balances of the Assets.
"Cut-off Date Principal Balance" means, as to any Contract, the unpaid
principal balance thereof at the Cut-off Date, or Subsequent Cut-off Date if a
Subsequent Contract, after giving effect to all installments of principal
actually received by the Servicer during or prior to the related Due Period.
"Defaulted Contract" means a Contract with respect to which the Servicer
commenced repossession or foreclosure procedures, made a sale of such Contract
to a third party for repossession, foreclosure or other enforcement, or as to
which there was a payment delinquent 180 or more days (excluding any Contract
deemed delinquent solely because the Obligor's required monthly payment was
reduced as a result of bankruptcy or similar proceedings).
"Depositor" means Origen Residential Securities, Inc., a Delaware
corporation.
"Depository" means the initial Depository, The Depository Trust Company,
the nominee of which is CEDE & CO., and any permitted successor depository. The
Depository shall at all times be a "clearing corporation" as defined in the
Uniform Commercial Code of the State of New York.
17
"Depository Participant" means a broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date" means the fourth Business Day preceding each
Distribution Date during the term of this Agreement.
"Directly Operate" means with respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by the Trust, in each case other
than through an Independent Contractor; provided, however, that the Servicer on
behalf of the Trustee shall not be considered to Directly Operate an REO
Property solely because the Servicer on behalf of the Trustee establishes rental
terms, chooses tenants, enters into or renews leases, deals with taxes and
insurance, or makes decisions as to repairs or capital expenditures with respect
to such REO Property.
"Distributable Excess Spread" means, with respect to any Distribution
Date, the Amount Available remaining after payment of the amounts described in
clauses (1) through (11) of Section 8.03(a).
"Distribution Account" means the account established and maintained
pursuant to Section 8.08.
"Distribution Date" means the fifteenth day of each month during the term
of this Agreement, or if such day is not a Business Day, the next succeeding
Business Day, commencing [_________].
"Due Date" means, as to any Asset, the date of the month on which the
scheduled monthly payment for such Asset is due.
"Due Period" means with respect to any Distribution Date other than the
Distribution Date in [_________], the calendar month preceding such Distribution
Date, and with respect to the Distribution Date in [_________], the period from
and including the related Cut-off Date for the related Asset to and including
[_________].
"Electronic Ledger" means the electronic master record of installment sale
contracts of the Seller.
"Eligible Account" means, at any time, an account which is any of the
following: (i) an account maintained with an Eligible Institution; (ii) a trust
account (which shall be a "segregated trust account") maintained with the
corporate trust department of a federal or state chartered depository
institution or trust company with trust powers and acting in its fiduciary
capacity for the benefit of the Trustee hereunder, which depository institution
or trust company shall have capital and surplus (or, if such depository
institution or trust company is a subsidiary of a bank holding company system,
the bank holding company shall have capital and surplus) of not less than
$50,000,000 and the securities of such depository institution or trust company
(or, if such depository institution or trust company is a subsidiary of a bank
holding company system and
18
such depository institution's or trust company's securities are not rated, the
securities of the bank holding company) shall have a credit rating from each
Rating Agency in one of its generic credit rating categories which signifies
investment grade; or (iii) an account that will not cause either Rating Agency
to downgrade or withdraw their then-current ratings assigned to the
Certificates, as confirmed in writing by each Rating Agency.
"Eligible Institution" means any depository institution (which may be the
Trustee or an Affiliate of the Trustee) organized under the laws of the United
States or any State, the deposits of which are insured to the full extent
permitted by law by the Bank Insurance Fund (currently administered by the
Federal Deposit Insurance Corporation), which is subject to supervision and
examination by federal or state authorities and whose short-term deposits have
been rated P-1 by Xxxxx'x (if rated by Xxxxx'x) A-1+ by S&P (if rated by S&P)
and F-1+ by Fitch (if rated by Fitch), or whose unsecured long-term debt has
been rated in one of the two highest rating categories by each Rating Agency in
the case of unsecured long-term debt.
"Eligible Investments" are any of the following:
(i) direct obligations of, and obligations fully guaranteed by,
the United States of America, the Federal Home Loan Mortgage
Corporation, the Federal National Mortgage Association, or any
agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit
of the United States of America and which are noncallable;
(ii) (A) demand and time deposits in, certificates of deposit of,
bankers' acceptances issued by, or federal funds sold by any
depository institution or trust company (including the Trustee
or any Affiliate of the Trustee, acting in its commercial
capacity) incorporated under the laws of the United States of
America or any State thereof and subject to supervision and
examination by federal and/or state authorities, so long as,
at the time of such investment or contractual commitment
providing for such investment, the commercial paper or other
short-term deposits of such depository institution or trust
company (or, in the case of a depository institution which is
the principal subsidiary of a holding company, the commercial
paper or other short-term debt obligations of such holding
company) are rated at least P-1 by Xxxxx'x, A-1 by S&P and at
least F-1 by Fitch (if rated by Fitch) and (B) any other
demand or time deposit or certificate of deposit which is
fully insured by the Federal Deposit Insurance Corporation;
(iii) shares of an investment company registered under the
Investment Company Act of 1940, whose shares are registered
under the Securities Act of 1933 and have the highest credit
rating then available from each Rating Agency and whose only
investments are in securities described in clauses (i), (ii)
above and (iv) below;
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(iv) repurchase obligations with respect to (A) any security
described in clause (i) above or (B) any other security issued
or guaranteed by an agency or instrumentality of the United
States of America, in either case entered into with a
depository institution or trust company (acting as principal)
described in clause (ii)(A) above;
(v) securities bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United
States of America or any State thereof which have a credit
rating at least in one of the two highest rating categories
from each Rating Agency at the time of such investment;
provided, however, that securities issued by any particular
corporation will not be Eligible Investments to the extent
that investment therein will cause the then outstanding
principal amount of securities issued by such corporation and
held as part of the corpus of the Trust to exceed 10% of
amounts held in the Collection Account;
(vi) commercial paper having a rating of at least P-1 from Xxxxx'x
(if rated by Xxxxx'x) at the time of such investment or pledge
as a security;
(vii) any other demand, money market or time deposit, demand
obligation or any other obligation, security or investment;
provided, that such obligation is rated by each Rating Agency
in its highest short-term unsecured debt ratings category and
such Rating Agency has confirmed in writing to the Servicer or
Trustee, as applicable, that such investment would not, in and
of itself, result in a downgrade, qualification or withdrawal
of the then current ratings assigned to the Certificates;
(viii) units of money market funds rated in the highest applicable
rating category by each of the Rating Agencies, including any
such funds for which the Trustee, in its individual capacity,
or any of its affiliates receives compensation as
administrator, sponsor, agent or the like; and
(ix) such other investments the investment in which will not, as
evidenced by a letter from each of the Rating Agencies, result
in the downgrading or withdrawal of the Ratings of the
Certificates;
provided, that any such investment must constitute a "cash flow investment"
within the meaning of the REMIC Provisions.
Notwithstanding the foregoing, securities that represent the right to
receive payments only of interest due on underlying obligations shall not be
included as Eligible Investments, whether or not such securities otherwise fall
within (i) through (ix) above.
"Eligible Servicer" means Origen Servicing, Inc., Origen Financial L.L.C.,
[_________] or any Person qualified to act as Servicer of the Assets under
applicable federal and state laws and regulations, which Person services not
less than an aggregate of $50,000,000 in outstanding principal amount of
manufactured housing conditional sales contracts and installment loan
agreements.
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"Eligible Substitute Asset" means, as to any Replaced Asset for which such
Eligible Substitute Asset is being substituted pursuant to Section 3.06(b), an
Asset that (a) as of the date of its substitution, satisfies all of the
representations and warranties (which, except when expressly stated to be as of
origination, shall be deemed to be determined as of the date of its substitution
rather than as of the Cut-off Date or the Closing Date) in Sections 3.02 and
3.03 and does not cause any of the representations and warranties in Section
3.04, after giving effect to such substitution, to be incorrect, (b) after
giving effect to the scheduled payment due in the month of such substitution,
has a Principal Balance that is not greater than the Principal Balance of such
Replaced Asset, (c) has an Asset Rate that is at least equal to the Asset Rate
of such Replaced Asset, (d) has a remaining term to scheduled maturity that is
not greater than the remaining term to scheduled maturity of the Replaced Asset,
(e) is not an Ineligible Foreclosure Property Asset, and (f) is a Land-and-Home
Contract if the Replaced Asset is a Land-and-Home Contract and is otherwise
secured by a Manufactured Home that is similar in type and value to the
collateral serving the Replaced Asset. If more than one Asset is being
substituted pursuant to Section 3.06(b) for more than one Replaced Asset on a
particular date, then the conditions specified above shall be applied to the
Assets being substituted, in the aggregate, and the Replaced Assets, in the
aggregate.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA-Qualifying Underwriting" means a best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
"ERISA-Restricted Certificate" means the Class X Certificates, the Class R
Certificates and any certificate that does not satisfy the applicable rating
requirement of the Underwriter's Exemption.
"Errors and Omissions Protection Policy" means the employee errors and
omissions policy maintained by the Servicer or any similar replacement policy
covering errors and omissions by the Servicer's employees, and meeting the
requirements of Section 5.09, all as such policy relates to Assets comprising a
portion of the corpus of the Trust.
"Event of Termination" has the meaning assigned in Section 7.01.
"Excess Asset Payment" means with respect to any Asset, any portion of a
payment of principal and interest on such Asset, that (a) is in excess of the
Scheduled Payment (or is an integral multiple thereof and has not been
identified by the Obligor as a Principal Prepayment), (b) is not a Principal
Prepayment and (c) is not part of the Liquidation Proceeds of such Asset or the
Repurchase Price of such Asset paid pursuant to Section 3.06.
"Xxxxxx Xxx" or "FNMA" means Xxxxxx Mae a/k/a Federal National Mortgage
Association.
"Fidelity Bond" means the fidelity bond maintained by the Servicer or any
similar replacement bond, meeting the requirements of Section 5.09, as such bond
relates to Assets comprising a portion of the corpus of the Trust.
21
"Final Distribution Date" means the Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to Section
12.03.
"Fitch" means Fitch, Inc., or any successor thereto; provided, that if
Fitch does not then have a rating outstanding on any of the Class A, Class M-1,
Class M-2 or Class B Certificates, then references herein to "Fitch" shall be
deemed to refer to the NRSRO then rating any Class of the Certificates (or, if
more than one such NRSRO is then rating any Class of the Certificates, to such
NRSRO as may be designated by the Servicer), and references herein to ratings by
or requirements of Fitch shall be deemed to have the equivalent meanings with
respect to ratings by or requirements of such NRSRO.
"Formula Principal Distribution Amount" means, as of any Distribution
Date, the sum of:
(i) all scheduled payments of principal due and received on each
outstanding Contract during the related Due Period; plus
(ii) all Partial Principal Prepayments applied and all Principal
Prepayments in Full received during the related Due Period;
plus
(iii) the aggregate Principal Balance of all Assets that became
Liquidated Assets during the related Due Period plus the
amount of any reduction in principal balance of any Contract
during the related Due Period pursuant to bankruptcy
proceedings involving the related Obligor; plus
(iv) the aggregate Principal Balance of all Assets repurchased
during the month preceding the related Due Period pursuant to
Section 3.06.
"Xxxxxxx Mac" or FHLMC" means Federal Home Loan Mortgage Corporation.
"Hazard Insurance Policy" means, with respect to each Asset, the policy of
fire and extended coverage insurance required to be maintained for the related
Manufactured Home or the related Mortgaged Property, as provided in Section
5.09, and which, as provided in said Section 5.09, may be a blanket mortgage
impairment policy maintained by the Servicer in accordance with the terms and
conditions of said Section 5.09.
"Independent" means, when used with respect to any specified Person, any
Person who (i) is in fact independent of the Servicer and the Seller, (ii) does
not have any direct financial interest or any material indirect financial
interest in the Servicer, the Seller or in an Affiliate of either and (iii) is
not connected with the Servicer or the Seller as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar functions.
Whenever it is provided herein that any Independent Person's opinion or
certificate shall be furnished to the Trustee, such opinion or certificate shall
state that the signatory has read this definition and is Independent within the
meaning set forth herein.
"Independent Contractor": Either (a) any Person (other than the Servicer)
that would be an "independent contractor" with respect to the Trust within the
meaning of Section 856(d)(3) of the Code if the Trust were a real estate
investment trust (except that, in applying that Section, more than 35% of the
outstanding principal balance of any Class shall be deemed to be more
22
than 35% of the certificates of beneficial interest of the Trust), so long as
the Trust does not receive or derive any income from such Person, the
relationship between such Person and the Trust is at arm's length and such
Person is not an employee of the REMIC, the Trustee or the Servicer, all within
the meaning of Treasury Regulation Section 1.856-4(b)(5), or (b) any other
Person (including the Servicer) upon receipt by the Trustee of an Opinion of
Counsel, the expense of which shall constitute a Servicing Advance if borne by
the Servicer, to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that is
otherwise herein contemplated to be taken by an Independent Contractor will not
cause such REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code (determined without regard to the
exception applicable for purposes of Section 860D(a) of the Code), or cause any
income realized in respect of such REO Property to fail to qualify as Rents from
Real Property.
"Ineligible Foreclosure Property Asset" means any Asset listed on the
Ineligible Foreclosure Property Asset Schedule as of the Closing Date and for
which there is no written agreement modifying such Obligor's obligation to make
payments under the Asset.
"Ineligible Foreclosure Property Asset Schedule" means a schedule,
attached hereto as Exhibit U of Ineligible Foreclosure Property Assets to be
prepared by Origen Financial L.L.C. within 15 days of the Closing Date.
"Initial Assets" means Initial Contracts or Initial Mortgage Loans.
"Initial Contracts" means certain Contracts identified in the List of
Contracts delivered pursuant to Section 2.02(a), all of which were originated on
or before [______________], and which have an aggregate principal balance as of
the Cut-off Date of approximately $[____________].
"Initial Mortgage Loans" means certain Mortgage Loans identified in the
Mortgage Loan Schedule pursuant to Section 2.02(a), all of which were originated
on or before [__________], and which have an aggregate principal balance of the
Cut-off Date of approximately [__________].
"Insurance Proceeds" means proceeds paid by any insurer pursuant to any
insurance policy or contract.
"Land-and-Home Contract" means a Contract that is secured by a Mortgage on
real estate on which the related Manufactured Home is situated, and which
Manufactured Home is considered or classified as part of the real estate under
the laws of the jurisdiction in which it is located.
"Land-and-Home Contract File" means, as to each Land-and-Home Contract,
(a) the fully executed original copy of the Land-and-Home Contract and security
agreement (if separate), and all modifications thereto, executed by the Obligor
evidencing indebtedness in connection with the purchase of a Manufactured Home,
assigned in blank by the Seller or the Originator; (b) the original related
Mortgage with evidence of recording thereon (or, if the original Mortgage has
not yet been returned by the applicable recording office, a copy thereof,
certified by such recording office, which will be replaced by the original
Mortgage when it is so
23
returned) and any title policy, commitment or other title document for the
related Manufactured Home; (c) the assignment of the Land-and-Home Contract and
the related Mortgage from the originator to the Seller or the Originator; (d) an
endorsement of such Land-and-Home Contract by the Seller or the Originator to
the Trustee or in blank; (e) an Assignment of the related Mortgage to the
Trustee or in blank; and (f) the originals of all assumptions, modifications,
consolidation or extension agreements, if any, signed by the Obligor, with
evidence of recording thereon, if applicable, or copies thereof with a
certification that such copy represents a true and correct copy of the original
and that such original has been submitted for recordation in the appropriate
governmental recording office of the jurisdiction in which the Manufactured Home
is located.
"Land-in-Lieu Contract" means a Contract that is secured by (i) a security
interest in a Manufactured Home and (ii) a mortgage or deed of trust on real
estate on which such Manufactured Home is situated, but such Manufactured Home
is not considered or classified as part of the real estate under the laws of the
jurisdiction in which it is located.
"Liquidated Asset" means any Defaulted Contract or defaulted Mortgage Loan
as to which the Servicer has determined that all amounts which it expects to
recover from or on account of such Asset have been recovered; provided, that any
Defaulted Asset or defaulted Mortgage Loan in respect of which the related
Manufactured Home, Mortgaged Property, have been realized upon and disposed of
and the proceeds of such disposition have been received shall be deemed to be a
Liquidated Asset.
"Liquidation Expenses" means out-of-pocket expenses (exclusive of any
overhead expenses) which are incurred by the Servicer in connection with the
liquidation of any defaulted Contract or defaulted Mortgage Loan or disposition
of any related Repo Property or REO Property and any unreimbursed Monthly
Advances with respect thereto, on or prior to the date on which the related
Manufactured Home and, in the case of Land-and-Home Contracts, Mortgaged
Property, are disposed of, including, without limitation, legal fees and
bankruptcy expenses, and any related and unreimbursed expenditures for property
taxes, property preservation or restoration of the property to marketable
condition or preparation of the related REO Property for sale and sales
commissions paid in connection with the related Manufactured Home or Mortgaged
Property.
"Liquidation Proceeds" means cash (including Insurance Proceeds) received
in connection with the liquidation of Defaulted Contracts or defaulted Mortgage
Loans, whether through repossession, foreclosure sale or otherwise, including
any rental income realized from the repossessed Manufactured Home.
"List of Contracts" means the lists identifying each Contract constituting
part of the corpus of the Trust, and which lists are either delivered pursuant
to Section 2.02(a) of this Agreement or attached to a Subsequent Transfer
Instrument as Exhibit A, as such lists may be amended from time to time pursuant
to Section 3.06(b) to add Eligible Substitute Assets and delete Replaced Assets.
Each List of Contracts shall set forth as to each Contract identified on it (i)
the Cut-off Date Principal Balance, (ii) the amount of monthly payments due from
the Obligor, (iii) the Contract Rate and (iv) the maturity date.
24
"Loan-to-Value Ratio" means the Contract Loan-to-Value Ratio or the
Mortgage Loan-to Value Ratio.
"Manufactured Home" means a unit of manufactured housing, including all
accessions thereto, securing the indebtedness of the Obligor under the related
Contract or constituting a portion of the Mortgaged Property in incurring the
indebtedness of the Obligor under any Mortgage Loan.
"Master REMIC" has the definition set forth in the Preliminary Statement.
"Maturity Date" means, as to any Certificate, other than a Class R
Certificate, the latest possible maturity date for purposes of complying with
the REMIC Provisions governing "regular interests."
"Monthly Advance" means, as to any Distribution Date, with respect to any
Scheduled Payment due during the related Due Period and not received by the
related Determination Date, an amount equal to (i) for simple interest Assets,
30 days interest on the outstanding principal balance on the related Due Date
and (ii) for actuarial Assets, the interest portion of such Scheduled Payment,
exclusive of any portion thereof that the Servicer has determined would be a
Nonrecoverable Advance if an advance in respect to such amount were made.
"Monthly Report" has the meaning assigned in Section 6.01.
"Monthly Servicing Fee" means, as of any Distribution Date, one-twelfth of
the product of [1.25]% and the Pool Principal Balance for the immediately
preceding Distribution Date (or, with respect to the first Distribution Date,
the Cut-off Date Pool Principal Balance as of the Closing Date).
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor thereto;
provided, that, if Moody's provided a rating on any of the Certificates, as
required by Section 2.02, and does not as of any subsequent date have a rating
outstanding on any of the Class A, Class M-1, Class M-2 or Class B Certificates,
then references herein to "Xxxxx'x" shall be deemed to refer to the NRSRO then
rating any Class of the Certificates (or, if more than one such NRSRO is then
rating any Class of the Certificates, to such NRSRO as may be designated by the
Servicer), and references herein to ratings by or requirements of Xxxxx'x shall
be deemed to have the equivalent meanings with respect to ratings by or
requirements of such NRSRO.
"Mortgage" means the mortgage, deed of trust, security deed or similar
evidence of lien, creating a first lien on an estate in fee simple in the real
property securing a Land-and-Home Contract or a Mortgage Loan, as applicable.
"Mortgage Insurer": The insurance company or companies which issue any
Primary Mortgage Insurance Policies with respect to any Mortgage Loans.
"Mortgage Loan": A mortgage loan (not including any Land-and-Home
Contract) secured by a first lien on a one-to-four-family residential real
property.
25
"Mortgage Loan Documents": With respect to each Mortgage Loan, the
following documents:
(a) the original Mortgage Note bearing a complete chain of endorsements,
if necessary, from the initial payee thereunder to the Seller or the Originator,
with a further endorsement without recourse from the Seller or the Originator in
blank or to the Trustee or its Custodian, in a form specified in the related
Asset Purchase Agreement, together with all related riders and addenda and any
related surety or guaranty agreement, power of attorney and buydown agreement;
(b) the original recorded Mortgage (or a copy thereof certified to be a
true and correct reproduction of the original thereof by the appropriate public
recording office) with evidence of recordation noted thereon or attached
thereto, or, if the Mortgage is in the process of being recorded, a photocopy of
the Mortgage, certified by an officer of the related Seller, the Originator or
the loan originator, the related title insurance company, the related
closing/settlement/escrow agent or the related closing attorney to be a true and
correct copy of the Mortgage submitted for recordation;
(c) the original recorded Assignment of the Mortgage from the related
Seller or the Originator to the Trustee or its Custodian, in a form specified in
the related Asset Purchase Agreement (or a copy thereof certified to be a true
and correct reproduction of the original thereof by the appropriate public
recording office) with evidence of recordation noted thereon or attached
thereto, or, if the Assignment is in the process of being recorded, a photocopy
of the Assignment, certified by an officer of the Seller or the Originator to be
a true and correct copy of the Assignment submitted for recordation;
(d) each original recorded intervening Assignment of the Mortgage as is
necessary to show a complete chain of title from the initial mortgagee (or
beneficiary, in the case of a deed of trust) to the related Seller or the
Originator (or a copy of each such assignment certified to be a true and correct
reproduction of the original thereof by the appropriate public recording office)
with evidence of recordation noted thereon or attached thereto, or, if an
assignment is in the process of being recorded, a photocopy of the assignment,
certified by an officer of the Seller or the Originator to be a true and correct
copy of the assignment submitted for recordation;
(e) an original Title Insurance Policy or, if such policy has not yet
been issued or is otherwise not available, (1) a written commitment to issue
such policy issued by the applicable title insurance company and an officer's
certificate of the related Seller or the Originator certifying that all of the
requirements specified in such commitment have been satisfied, (2) a preliminary
title report if the related Mortgaged Property is located in a state in which
preliminary title reports are acceptable evidence of title insurance, (3) a
certificate of an officer of the Seller or the Originator certifying that a
Title Insurance Policy is in full force and effect as to the related Mortgage
and that such Title Insurance Policy is freely assignable to and will inure to
the benefit of the Trustee (subject to recordation of the related Assignment of
Mortgage) or (4) an Opinion of Counsel with respect to the title of the related
Mortgaged Property;
(f) for each Mortgage Loan identified in the related Agreement as having
in place a Primary Mortgage Insurance Policy, a Primary Mortgage Insurance
Policy or a certificate of
26
primary mortgage insurance issued by the related Mortgage Insurer or its agent
indicating that such a policy is in effect as to such Mortgage Loan or, if
neither a policy nor a certificate of insurance from the related Mortgage
Insurer is available, a certificate of an officer of the related Seller or the
Originator certifying that a Primary Mortgage Insurance Policy is in effect as
to such Mortgage Loan;
(g) each related assumption agreement, modification, written assurance
or substitution agreement, if any; and
(c) proof of the maintenance of a Hazard Insurance Policy (and a flood
insurance policy, if applicable) as to the related Mortgaged Property.
"Mortgage Loan-to-Value Ratio" means, as to a Mortgage Loan, the ratio,
expressed as a percentage, of the principal amount of such Mortgage Loan at the
time of determination, to either (i) the sum of the appraised value of the land
and improvements, and the amount of any prepaid finance charges or closing costs
that are financed or (ii) the sum of the purchase price of the home (including
taxes, insurance and any land improvements), the appraised value of the land and
the amount of any prepaid finance charges or closing costs that are financed.
"Mortgage Loan Schedule" means the list attached to the Agreement
identifying each Mortgage Loan assigned thereunder (which may be presented
together with any related List of Contracts in a single Asset Schedule), which
list shall (a) identify each Mortgage Loan and (b) set forth (or describe the
method of determining) as to each such Mortgage loan (1) the Cut-off Date
Principal Balance thereof, (2) the amount of each Monthly Payment, (3) the
Mortgage Rate thereof, (4) the original term to maturity thereof, (5) the date
of origination thereof, (6) the original Mortgage Loan-to-Value Ratio thereof,
(7) the state in which the related Mortgaged Property is located, and (8) any
other information as may be reasonably requested by the Trustee prior to the
Closing Date.
"Mortgage Note" means a manually executed written instrument evidencing a
Obligor's promise to repay a stated sum of money, plus interest, to the holder
of such instrument on or before a specific date according to a schedule of
principal and interest payments.
"Mortgage Rate" means, with respect to each Mortgage Loan, the interest
rate specified in the related Mortgage Note.
"Mortgaged Property" means the property subject to the lien of a Mortgage.
"Net Liquidation Loss" means, as to a Liquidated Contract, the amount, if
any, by which (a) the outstanding principal balance of such Liquidated Contract
plus accrued and unpaid interest thereon to the date on which such Liquidated
Contract became a Liquidated Contract exceeds (b) the Net Liquidation Proceeds
for such Liquidated Contract.
"Net Liquidation Proceeds" means, as to a Liquidated Contract, all
Liquidation Proceeds received on or prior to the last day of the month in which
such Contract became a Liquidated Contract, net of Liquidation Expenses.
27
"New Lease" means any lease of REO Property entered into on behalf of the
Trust, including any lease renewed, modified or extended on behalf of the Trust
(if the Trustee, or the Servicer or its agent, has the right to renegotiate the
terms of such lease).
"Nonrecoverable Advance" means any Servicing Advance which is not
recovered, or which the Servicer reasonably believes will not be recovered, by
the Servicer from late collections from the Obligor of the items advanced, or
from Liquidation Proceeds on the related Asset, and any Servicing Advances
incurred by the Servicer in connection with a delinquent or defaulted Asset
which is subsequently reinstated, worked out, or otherwise cured. In determining
whether an advance is or will be nonrecoverable, the Servicer need not take into
account that it might receive any amounts in a deficiency judgment. The
determination by the Servicer that any advance is, or if made would constitute,
a Nonrecoverable Advance, shall be evidenced by a certificate of a Servicing
Officer of the Servicer delivered to the Trustee stating the reasons for such
determination.
"NRSRO" means any nationally recognized statistical rating organization.
"Obligor" means each Person who is indebted under a Contract or a Mortgage
Loan.
"Officer's Certificate" means a certificate signed by the Chairman of the
Board, President, Treasurer, Assistant Treasurer, Secretary, any Assistant
Secretary, or any Vice President of the Seller and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may, except
as expressly provided herein, be salaried counsel for the Seller, acceptable to
the Trustee and the Seller; provided, that any opinion of counsel relating to
the qualification of the Subsidiary REMIC or the Master REMIC as a REMIC or
compliance with the REMIC Provisions must be an opinion of Independent counsel.
"Optional Termination Date" means the first Distribution Date on which the
Pool Principal Balance is equal to or less than 10% of the sum of the Cut-off
Date Pool Principal Balance and the Original Pre-Funded Amount.
"Original Class A Principal Balance" means the Original Principal Balance
of the Class A Certificates.
"Original Pre-Funded Amount" means $[_________________] (the excess of the
aggregate Class Principal Balance of the Certificates on the Closing Date over
the Cut-Off Date Pool Principal Balance).
"Original Principal Balance" means as to each Class of Regular
Certificates, the amount set forth with respect to such Class in Section
2.05(b).
"Outstanding" means with respect to any Asset as to the time of reference
thereto, an Asset that has not been fully prepaid, has not become a Liquidated
Asset and has not been purchased pursuant to Section 3.06 prior to the time of
reference.
28
"Outstanding Amount Advanced" means as to any Distribution Date, the
aggregate of all Servicing Advances less the aggregate of all amounts actually
received by the Servicer prior to such Distribution Date in reimbursement for
any Servicing Advances.
"Overcollateralization Amount" means, as of any Distribution Date, the
excess, if any, of the sum of the Pool Principal Balance [and the Pre-Funded
Amount, if any], at the end of the related Due Period over the aggregate Class
Principal Balance of the Certificates for such Distribution Date after giving
effect to distributions pursuant to Section 8.03(a)(1) through (11) on such
Distribution Date. For purposes of the Electronic File only, the term
Overcollateralization Amount shall be the excess, if any, of the sum of the Pool
Principal Balance and the Pre-Funded Amount, if any, at the end of the related
Due Period over the aggregate Class Principal Balance of the Certificates for
such Distribution Date after giving effect to distributions to
Certificateholders on such Distribution Date.
"Overcollateralization Deficiency Amount" means, with respect to any
Distribution Date, the amount by which the Targeted Overcollateralization Amount
exceeds the Overcollateralization Amount, in each case, for such Distribution
Date.
"Overcollateralization Release Amount" means the amount, if any, by which
the Overcollateralization Amount exceeds the Targeted Overcollateralization
Amount for that Distribution Date.
"Ownership Interest" means as to any Certificate or security interest in
such Certificate, any interest in such Certificate as the Holder thereof and any
other interest therein, whether direct or indirect, legal or beneficial, as
owner or as pledgee.
"Partial Principal Prepayment" means (a) any Principal Prepayment other
than a Principal Prepayment in Full and (b) any cash amount deposited in the
Collection Account pursuant to the provision in Section 3.06(a) or pursuant to
Section 3.06(b).
"Pass-Through Rate" means with respect to each Class of Certificates, the
rate set forth for such Class in Section 2.05(b).
"Paying Agent" has the meaning assigned in Section 8.01(c).
"Percentage Interest" means, as to any Certificate, the percentage
interest evidenced thereby in distributions made on the related Class, such
percentage interest being equal to, in the case of the Class A, Class M-1, Class
M-2, and Class B Certificates, the percentage (carried to eight places) obtained
from dividing the denomination of such Certificate by the Original Principal
Balance of the related Class; and in the case of the Class R and Class X
Certificates, the percentage specified on the face of such Certificate. The
aggregate Percentage Interests for each Class of Certificates shall equal 100%,
respectively.
"Permitted Transferee" means any Person other than (i) the United States,
any State or any political subdivision thereof or any agency or instrumentality
of any of the foregoing, (ii) a foreign government, international organization
or any agency or instrumentality of either of the foregoing, (iii) an
organization which is exempt from tax imposed by Chapter 1 of the Code
(including the tax imposed by section 511 of the Code on unrelated business
taxable income)
29
(except certain farmers' cooperatives described in Code section 521) on any
excess inclusions (as defined in Section 860E(c)(1)) with respect to any Class R
Certificate, (iv) rural electric and telephone cooperatives described in Code
section 1381(a)(2)(C), (v) a Person that is not a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in or under the laws of the United States, any state thereof or the District of
Columbia, or an estate whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States Persons have the authority to control all substantial
decisions of the trust, (vi) an "electing large partnership" within the meaning
of Section 775 of the Code, and (vii) any other Person so designated by the
Trustee based on an Opinion of Counsel to the effect that any transfer to such
Person may cause the Trust to fail to qualify as a REMIC at any time the
Certificates are outstanding. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Code section
7701 or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax and, with the exception of
the Xxxxxxx Mac, a majority of its board of directors is not selected by such
governmental unit.
"Person" any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pool Factor" means, at any time, the percentage derived from a fraction,
the numerator of which is the aggregate Principal Balance of each Class of
Certificates at such time and the denominator of which is the sum of the Cut-off
Date Pool Principal Balance [and the Original Pre-Funded Amount], less the
initial Overcollateralization Amount.
"Pool Principal Balance" means, as of any Distribution Date, the aggregate
Principal Balance of all Assets that were outstanding during the related Due
Period.
["Post-Funding Distribution Date" means the first Distribution Date after
the last day of the Pre-Funding Period.
"Pre-Funded Amount" means with respect to any date of determination, the
amount then on deposit in the Pre-Funding Account, after giving effect to any
sale of Subsequent Assets to the Trust on such date, excluding any investment
earnings.
"Pre-Funding Account" means the account so designated, established and
maintained pursuant to Section 8.07.
"Pre-Funding Period" means the period beginning on the Closing Date and
ending on the earliest of (a) the date on which the amount on deposit in the
Pre-Funding Account is less than $10,000 or (b) the date on which an Event of
Termination occurs or (c) [___________].
"Pre-Funding Subaccount" means the subaccount, if any, so designated,
established and maintained pursuant to Section 8.07.]
30
"Primary Mortgage Insurance": The insurance provided under any Primary
Mortgage Insurance Policy.
"Primary Mortgage Insurance Policy": A primary mortgage insurance policy,
if applicable, covering certain conventional Mortgage Loans for which the
initial Mortgage Loan-to-Value Ratios exceeded 80%.
"Principal Balance" means, as to any Asset and any Distribution Date, or
the Cut-off Date or the Subsequent Cut-off Date, as applicable, the related
Cut-off Date Principal Balance, minus all collections credited against the
Principal Balance of such Asset. For purposes of this definition, a Liquidated
Asset shall be deemed to have a Principal Balance equal to the Principal Balance
of the related Asset immediately prior to the final recovery of related
Liquidation Proceeds and a Principal Balance of zero thereafter.
"Principal Prepayment" means a payment or other recovery of principal
which is received in advance of its Due Date and applied upon receipt (or, in
the case of a Partial Principal Prepayment, upon the next scheduled payment date
on such Asset) to reduce the outstanding principal amount due on such Asset
prior to the date or dates on which such principal amount is due.
"Principal Prepayment in Full" means any Principal Prepayment of the
entire principal balance of an Asset.
"Rating Agencies" means ____________________________________.
"Realized Losses" means, as to any Distribution Date, the aggregate Net
Liquidation Losses of all Assets that became Liquidated Assets during the
immediately preceding month.
"Record Date" means the Business Day immediately preceding the related
Distribution Date; provided, however, that for any Class of Certificates not
held through the Depository, the Record Date will be the last Business Day of
the month immediately preceding the related Distribution Date.
"Regular Certificate" means a Class A, Class M, Class B or Class X
Certificate.
"REMIC" means a "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC 1" as defined in the Preliminary Statement.
"REMIC 2" as defined in the Preliminary Statement.
"REMIC Change of Law" means any proposed, temporary or final regulation,
revenue ruling, revenue procedure or other official announcement or
interpretation relating to REMICs and the REMIC Provisions issued after the
Closing Date.
"REMIC Loan-to-Value Ratio" means the quotient, expressed as a percentage,
obtained by dividing (a) the original unpaid principal balance of an Asset, by
(b) the fair market value of
31
the Manufactured Home or Mortgaged Property that secures such Asset minus the
full amount of any other indebtedness secured by the related Manufactured Home
or Mortgaged Property which is senior to such Asset or a pro rata portion of any
other indebtedness secured by the related Manufactured Home or Mortgaged
Property that is in parity with such Asset.
"REMIC Provisions" means the provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations promulgated thereunder, as the foregoing may be in
effect from time to time, as well as provisions of applicable state laws.
"Rents From Real Property" means with respect to any REO Property, gross
income of the character described in Code section 856(d) and Treasury
regulations thereunder.
"REO Property" means a Mortgaged Property acquired by the Servicer on
behalf of the Certificateholders through foreclosure or deed-in-lieu of
foreclosure, as further described in Section 5.11 hereof.
"REO Property Disposition": The receipt by the Servicer of Insurance
Proceeds and other payments and recoveries (including Liquidation Proceeds)
which the Servicer recovers from the sale or other disposition of an REO
Property.
"Replaced Asset" has the meaning assigned in Section 3.06(b).
"Repo Property": A Manufactured Home (and any related Real Property)
acquired by the Servicer on behalf of the Trust pursuant to a repossession,
foreclosure, or similar proceeding in connection with a Defaulted Contract.
"Repurchase Price" means, with respect to an Asset to be repurchased
pursuant to Section 3.06, an amount equal to (a) the remaining principal amount
outstanding on such Asset, plus (b) interest at the Asset Rate on such Contract
from the end of the Due Period with respect to which the Obligor last made a
payment through the end of the immediately preceding Due Period.
"RESPA" means the Real Estate Settlement Procedures Act of 1974, as
amended.
"Responsible Officer" means, with respect to the Trustee, the chairman and
any vice chairman of the board of directors, the president, the chairman and
vice chairman of any executive committee of the board of directors, every vice
president, assistant vice president, the secretary, every assistant secretary,
cashier or any assistant cashier, controller or assistant controller, the
treasurer, every assistant treasurer, every trust officer, assistant trust
officer and every other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by persons who at the time shall
be such officers, respectively, or to whom a corporate trust matter is referred
because of knowledge of, familiarity with, and authority to act with respect to
a particular matter.
"Responsible Party" has the meaning assigned to such term in Section
3.06(a).
32
"Xxxxxxxx-Xxxxx Certification" has the meaning assigned in Section
6.07(b).
"Scheduled Payment" means, as to any Due Period and each Asset, the
scheduled monthly payment of principal and/or interest required to be made by an
Obligor on the related Asset.
"Servicer" means Origen Servicing, Inc. until any Service Transfer
hereunder and thereafter means the new servicer appointed pursuant to Article
VII.
"Servicer Certification" has the meaning assigned in Section 6.07(c)
hereof.
"Servicer Mortgage Loan File" means as to each Mortgage Loan, a file
maintained by the Servicer that contains (1) an original Hazard Insurance Policy
(and flood insurance policy, if required pursuant to this Agreement) relating to
the underlying Mortgaged Property or a certificate of insurance issued by the
insurer or its agent indicating that a Hazard Insurance Policy (and a flood
insurance policy, if required pursuant to this Agreement) is in effect with
respect to such Mortgaged Property, (2) originals or copies of all documents
submitted to a Mortgage Insurer for credit and property underwriting approval,
(3) the originals of all RESPA and Regulation Z disclosure statements executed
by the related Obligors, (4) the appraisal report made in connection with the
origination of the Mortgage Loan, (5) the settlement statement for the purchase
and/or refinancing of the underlying Mortgaged Property by the related Obligor
under the related Mortgage Note and Mortgage, (6) the originals of any tax
service contracts, (7) documentation relating to any approvals by the Servicer
of any modifications of the original related Mortgage Loan Documents and any
releases of collateral supporting the related Mortgage Loan, together with
copies of the documentation effecting any such modifications or releases, (8)
collection notices or form notices sent to the related Obligor, (9) foreclosure
correspondence and legal notifications, if applicable, (10) water and irrigation
company stock certificates, if applicable, and (11) all other documents relating
to such Mortgage Loan which would customarily be maintained in a mortgage loan
file by the Servicer in order to service the mortgage loan properly, as well as
any other documents relating to such Mortgage Loan (other than Mortgage Loan
Documents) that come into the Servicer's possession.
"Service Transfer" has the meaning assigned in Section 7.02.
"Servicing Advance" means advances made by the Servicer as liquidation
expenses, delinquent tax and insurance advances, property protection expenses
and similar items required under this Agreement.
"Servicing Officer" means any officer of the Servicer involved in, or
responsible for, the administration and servicing of Assets whose name appears
on a list of servicing officers appearing in an Officer's Certificate furnished
to the Trustee by the Servicer, as the same may be amended from time to time.
"Shortfall" means any Due Date Interest Shortfall and Soldiers' and
Sailors Shortfall.
"Soldiers' and Sailors' Shortfall" means interest losses on a Contract or
Mortgage Loan resulting from application of the Soldiers' and Sailors' Civil
Relief Act of 1940.
33
"Staged Funded Loan" means a Land-and-Home Contract or Mortgage Loan that
has not been fully funded and for which the unfunded amount of the original
Principal Balance is scheduled to be funded at interim periods during the
acquisition of the related real estate and Manufactured Home or Mortgaged
Property and the conversion of the interim funding to a permanent loan.
"Startup Day" means the Startup Day (within the meaning of Code section
860G(a)(9)) is the Closing Date.
"Subsequent Asset" means a Subsequent Contract or Subsequent Mortgage
Loan.
"Subsequent Contract" means a Contract sold by the Seller to the Trust
pursuant to Section 2.03, such Contract being identified on Exhibit A attached
to a Subsequent Transfer Instrument.
"Subsequent Cut-off Date" means, with respect to a Subsequent Asset, day
specified as such in the related Subsequent Transfer Instrument.
"Subsequent Mortgage Loan" means a Mortgage Loan sold by the Seller to the
Trust pursuant to Section 2.03, such Mortgage Loan being identified on Exhibit A
attached to a Subsequent Transfer Instrument.
"Subsequent Transfer Date" means, with respect to each Subsequent Transfer
Instrument, the date on which the related Subsequent Assets are sold to the
Trust.
"Subsequent Transfer Instrument" means each Subsequent Transfer Instrument
dated as of a Subsequent Transfer Date executed by the Seller substantially in
the form of Exhibit P, by which the Seller sells Subsequent Assets to the Trust.
"Subsidiary REMIC" has the meaning set forth in the Preliminary Statement.
"Targeted Overcollateralization Amount" means, with respect to any
Distribution Date, the product of (a) [_______]% and (b) the sum of the Cut-off
Date Pool Principal Balance and the Original Pre-Funded Amount.
"Tax Matters Person" means the person designated as "tax matters person"
in the manner provided under Treasury regulation Section 1.860F-4(d) and
temporary Treasury regulation Section 301.6231(a)(7)1T. Initially, the Tax
Matters Person shall be the Class R Certificateholder.
"Tax Matters Person Certificate" means the Class R Certificate with a
Denomination of .00001%.
"Title Insurance Policy" means, as to any Mortgage Loan, an American Land
Title Association mortgagee's mortgage loan title policy form 1970, or other
form of mortgagee's title insurance acceptable to FNMA or FHLMC for the
jurisdiction in which the subject property is located, including all riders and
endorsements thereto, insuring that the related Mortgage creates a valid first
lien on the underlying Mortgaged Property subject only to Permitted
Encumbrances.
34
"Transfer Agreement" means that certain Asset Purchase Agreement between
the Depositor, as purchaser, and the Seller, as seller, dated as of
[____________].
"Trust" means the trust created by this Agreement, known as Origen
Residential Pass-Through Certificates Trust, Series 200[__] - [__], the corpus
of which consists of (1) all the right, title and interest of the Depositor in
and to the Assets, including without limitation, all right, title and interest
in and to the Collateral Security, all rights receive payments on or with
respect to the Assets and all rights of the Depositor under the Transfer
Agreement, (2) all rights under any Hazard Insurance Policy relating to a
Manufactured Home or Mortgaged Property securing an Asset for the benefit of the
creditor of such Asset, (3) proceeds from the Errors and Omissions Protection
Policy and all rights under any blanket hazard insurance policy to the extent
such proceeds relate to any Manufactured Home or Mortgaged Property, (4) all
documents contained in the Mortgage Loan Files, Contract Files or the
Land-and-Home Contract Files subject to the exceptions set forth on Schedule A
to Exhibit H or this Agreement, and (5) the Pre-Funding Account and (6) all
proceeds and products in any way derived from any of the foregoing.
"Trust Estate" means the assets of the Trust.
"Trustee Fee" means an amount payable monthly from payments on the Assets
allocable to interest which will accrue at the Trustee Fee Rate, calculated on
the basis of a 360-day year consisting of twelve 30-day months, and computed on
the basis of the same principal amount for the same period as any related
interest payment on the Assets is computed.
"Trustee Fee Rate" means [___________]% per annum.
"Trustee Mortgage Loan File": means, with respect to any Mortgage Loan, a
file containing all of the related Mortgage Loan Documents.
"Trustee Reimbursement Account" means the account established pursuant to
Section 8.09 hereof.
"Undelivered Asset" means as of any date of determination an Initial or
Additional Contract identified, on the exception report attached to the
Acknowledgment delivered by the Trustee under Section 2.04, as a Land-and-Home
Contract as to which the Trustee did not receive the related Land-and-Home
Contract File as of the Closing Date and has not received the related
Land-and-Home Contract File and remitted payment to the Seller pursuant to
Section 8.07(d).
"Undelivered Asset Subaccount" means the subaccount so designated and
established and maintained pursuant to Section 8.07.
"Underwriter" means [_______________________].
"Underwriter's Exemption" means Prohibited Transaction Exemption
[_________________], as amended (or any successor thereto), or any substantially
similar administrative exemption granted by the U.S. Department of Labor.
35
"Underwriting Agreement" means the Underwriting Agreement, dated
[_______________], between the Depositor and the Underwriter.
"Unpaid Class A Interest Shortfall" means, as to each class of Class A
Certificates and any Distribution Date, the amount, if any, of the Class A
Interest Shortfall applicable to such Class for the prior Distribution Date,
plus accrued interest (to the extent payment thereof is legally permissible) at
the related Pass-Through Rate on the amount thereof from such prior Distribution
Date to such current Distribution Date (calculated in the manner specified in
Section 1.03).
"Unpaid Class A Principal Shortfall" means, as to each Class of Class A
Certificates and any Distribution Date, the amount, if any, by which the
aggregate of the Class A Principal Shortfalls for prior Distribution Dates is in
excess of the amounts distributed on prior Distribution Dates to Holders of
Class A Certificates pursuant to Section 8.03(a)(8)(ii).
"Unpaid Class B-1 Interest Shortfall" means, as to any Distribution Date,
the amount, if any, of the Class B-1 Interest Shortfall for the prior
Distribution Date, plus accrued interest (to the extent payment thereof is
legally permissible) at the Class B-1 Pass-Through Rate on the amount thereof
from such prior Distribution Date to such current Distribution Date (calculated
in the manner specified in Section 1.03).
"Unpaid Class B-1 Liquidation Loss Interest Shortfall" means, as to any
Distribution Date, the sum of (i) the amount, if any, of the remainder of (x)
the Class B-1 Liquidation Loss Interest Amount, if any, for the immediately
prior Distribution Date, plus (y) the Unpaid Class B-1 Liquidation Loss Interest
Shortfall determined as of such immediately prior Distribution Date, minus (z)
all amounts distributed to the Holders of the Class B-1 Certificates on account
of any Unpaid Class B-1 Liquidation Loss Interest Shortfall pursuant to Section
8.03(a)(11)(iv) on such immediately prior Distribution Date, plus (ii) accrued
interest (to the extent payment thereof is legally permissible) at the Class B-1
Pass-Through Rate on the amount specified in clause (i) from such prior
Distribution Date to such current Distribution Date (calculated in the manner
specified in Section 1.03).
"Unpaid Class B-1 Principal Shortfall" means, as to any Distribution Date,
the amount, if any, by which the aggregate of the Class B-1 Principal Shortfalls
for prior Distribution Dates is in excess of the amounts distributed on prior
Distribution Dates to Holders of Class B-1 Certificates pursuant to Section
8.03(a)(11)(i).
"Unpaid Class M-1 Interest Shortfall" means, as to any Distribution Date,
the amount, if any, of the Class M-1 Interest Shortfall for the prior
Distribution Date, plus accrued interest (to the extent payment thereof is
legally permissible) at the Class M-1 Pass-Through Rate on the amount thereof
from such prior Distribution Date to such current Distribution Date (calculated
in the manner specified in Section 1.03).
"Unpaid Class M-1 Liquidation Loss Interest Shortfall" means, as to any
Distribution Date, the sum of (i) the amount, if any, of the remainder of (x)
the Class M-1 Liquidation Loss Interest Amount, if any, for the immediately
prior Distribution Date, plus (y) the Unpaid Class M-1 Liquidation Loss Interest
Shortfall determined as of such immediately prior Distribution
36
Date, minus (z) all amounts distributed to the Holders of the Class M-1
Certificates on account of any Unpaid Class M-1 Liquidation Loss Interest
Shortfall pursuant to Section 8.03(a)(9)(iv) on such immediately prior
Distribution Date, plus (ii) accrued interest (to the extent payment thereof is
legally permissible) at the Class M-1 Pass-Through Rate on the amount specified
in clause (i) from such prior Distribution Date to such current Distribution
Date (calculated in the manner specified in Section 1.03).
"Unpaid Class M-1 Principal Shortfall" means, as to any Distribution Date,
the amount, if any, by which the aggregate of the Class M-1 Principal Shortfalls
for prior Distribution Dates is in excess of the amounts distributed on prior
Distribution Dates to Holders of Class M-1 Certificates pursuant to Section
8.03(a)(9)(i).
"Unpaid Class M-2 Interest Shortfall" means, as to any Distribution Date,
the amount, if any, of the Class M-2 Interest Shortfall for the prior
Distribution Date, plus accrued interest (to the extent payment thereof is
legally permissible) at the Class M-2 Pass-Through Rate on the amount thereof
from such prior Distribution Date to such current Distribution Date (calculated
in the manner specified in Section 1.03).
"Unpaid Class M-2 Liquidation Loss Interest Shortfall" means, as to any
Distribution Date, the sum of (i) the amount, if any, of the remainder of (x)
the Class M-2 Liquidation Loss Interest Amount, if any, for the immediately
prior Distribution Date, plus (y) the Unpaid Class M-2 Liquidation Loss Interest
Shortfall determined as of such immediately prior Distribution Date, minus (z)
all amounts distributed to the Holders of the Class M-2 Certificates on account
of any Unpaid Class M-2 Liquidation Loss Interest Shortfall pursuant to Section
8.03(a)(10)(iv) on such immediately prior Distribution Date, plus (ii) accrued
interest (to the extent payment thereof is legally permissible) at the Class M-2
Pass-Through Rate on the amount specified in clause (i) from such prior
Distribution Date to such current Distribution Date (calculated in the manner
specified in Section 1.03).
"Unpaid Class M-2 Principal Shortfall" means, as to any Distribution Date,
the amount, if any, by which the aggregate of the Class M-2 Principal Shortfalls
for prior Distribution Dates is in excess of the amounts distributed on prior
Distribution Dates to Holders of Class M-2 Certificates pursuant to Section
8.03(a)(10)(i).
"Weighted Average Net Asset Rate" means, as to any Distribution Date, the
weighted average (determined by Principal Balance) of the Asset Rates of all
Assets that were outstanding on the first day of the prior related Due Period
net of the sum of the rate at which the Monthly Servicing Fee is calculated, the
Trustee Fee Rate and the Backup Servicing Fee Rate.
SECTION 1.03. Calculations.
All calculations of the amount of interest accrued on the Certificates
with respect to any Distribution Date (other than with respect to the first
Distribution Date) shall be during the related Accrual Period calculated on the
basis of a 360-day year of twelve 30-day months. For the first Distribution
Date, the calculations of interest accrued on the Certificates shall be
calculated on the basis of the actual number of days elapsed during the first
Accrual Period and a 360-day year.
37
ARTICLE II
ESTABLISHMENT OF TRUST; TRANSFER OF ASSETS
SECTION 2.01. Closing.
(a) There is hereby created, by the Depositor as settlor, a separate
trust which shall be known as Origen [Manufactured Housing Contract
Senior/Subordinate Asset-Backed Certificate] Trust, Series 200[__] - [__]. By
the execution and delivery of this Agreement, the Depositor has agreed that it
will elect or will cause an election to be made to treat the pool of assets
comprising each of the Subsidiary REMIC and the Master REMIC[, excluding the
Pre-Funding Account], as a REMIC. The Trust shall be administered pursuant to
the provisions of this Agreement for the benefit of the Certificateholders.
(b) The Depositor hereby transfers, assigns, delivers, sells, sets over
and otherwise conveys to the Trustee or the Custodian on behalf of the Trust,
(1) all the right, title and interest of the Depositor in and to the Assets,
including, without limitation, all right, title and interest in and to the
Collateral Security, all rights to receive payments on or with respect to the
Assets and all rights of the Depositor under the Transfer Agreement, (2) all
rights under every Hazard Insurance Policy relating to a Manufactured Home
securing an Asset for the benefit of the creditor of such Asset, (3) the
proceeds from the Errors and Omissions Protection Policy and all rights under
any blanket hazard insurance policy to the extent they relate to the Assets, (4)
all documents contained in the Asset Files and the Land-and-Home Contract Files,
subject to the exceptions set forth on Schedule A to Exhibit H of this
Agreement, [(5) amounts on deposit in the Pre-Funding Account] and (6) all
proceeds and products in any way derived from any of the foregoing.
(c) Reserved.
(d) Although the parties intend that the conveyance of the Depositor's
right, title and interest in and to the Assets and the Collateral Security
pursuant to this Agreement and each Subsequent Transfer Instrument shall
constitute a purchase and sale and not a pledge of security for loans from the
Certificateholders, it is the intent of this Agreement that if such conveyances
are deemed to be a pledge of security for loans from the Certificateholders or
any other Persons (the "Secured Obligations"), the parties intend that the
rights and obligations of the parties to the Secured Obligations shall be
established pursuant to the terms of this Agreement. The parties also intend and
agree that the Depositor shall be deemed to have granted to the Trustee, and the
Depositor does hereby grant to the Trustee, a perfected first-priority security
interest in the items designated in Section 2.01(b)(1) through 2.01(b)(6) above
and in each Subsequent Transfer Instrument, and all proceeds thereof, to secure
the Secured Obligations, and that this Agreement shall constitute a security
agreement under applicable law. If the trust created by this Agreement
terminates prior to the satisfaction of the claims of any Person under any
Certificates or the Secured Obligations, the security interest created hereby
shall continue in full force and effect and the Trustee shall be deemed to be
the collateral agent for the benefit of such Person.
38
SECTION 2.02. Conditions to the Closing.
On or before the Closing Date, unless a condition is waived by the
Depositor and the Underwriter, the Seller and the Depositor, as applicable,
shall deliver or cause to be delivered the following documents to the Trustee:
(1) The List of Contracts identifying all Initial and
Additional Contracts.
(2) The Mortgage Loan Schedule identifying all Initial and
Additional Mortgage Loans.
(3) A certificate of an officer of the Seller substantially
in the form of Exhibit E hereto. A certificate of an officer of the
Depositor in form and substance satisfactory to the Underwriter.
(4) An Opinion of Counsel for the Seller. An Opinion of
Counsel for the Depositor
(5) A letter acceptable to the Underwriter from Deloitte &
Touche or another nationally recognized accounting firm, stating
that such firm has reviewed the Initial Assets on a statistical
sampling basis and setting forth the results of such review.
(6) Copies of resolutions of the board of directors of the
Seller or of the executive committee of the board of directors of
the Seller approving the execution, delivery and performance of this
Agreement, the creation of the Trust and the transactions
contemplated hereunder, certified in each case by the secretary or
an assistant secretary of the Seller.
(7) Officially certified recent evidence of due formation
and good standing of the Seller under the laws of the State of
Delaware. Officially certified recent evidence of due formation and
good standing of the Depositor under the laws of the State of
Delaware.
(8) Copies of UCC1 financing statements, naming the Seller
as debtor and naming the Depositor as secured party and listing the
Assets collateral, to be filed with the Secretary of State of
Delaware.
(9) The Mortgage Loan File for each Initial and Additional
Mortgage Loan.
(10) The Land-and-Home Contract File for each Initial and
Additional Contract that is a Land-and-Home Contract.
(11) An executed copy of the Assignment of the Seller
substantially in the form of Exhibit D hereto.
39
(12) An Officer's Certificate listing the Servicer's
Servicing Officers.
(13) Evidence of deposit in the Collection Account of all
funds received with respect to the Initial and Additional Assets
after the Cut-off Date and prior to the Closing Date.
(14) [Reserved].
(15) A letter from ______________ confirming that it has
assigned the Class A Certificates a rating of Aaa, the Class M-1
Certificates a rating of "Aa2", the Class M-2 Certificates a rating
of "A2," the Class B-1 Certificates a rating of "Baa2".
(16) A letter from _______________ confirming that it has
assigned the Class A Certificates a rating of AAA, the Class M-1
Certificates a rating of "AA," the Class M-2 Certificates a rating
of "A", the Class B-1 Certificates a rating of "BBB".
(17) An executed copy of the Transfer Agreement.
SECTION 2.03. [Conveyance of the Subsequent Assets.
(a) Subject to the conditions set forth in paragraph (b) below, in
consideration of the Trustee's delivery on the related Subsequent Transfer Dates
to or upon the order of the Seller of all or a portion of the balance of funds
in the Pre-Funding Account, the Seller shall on any Subsequent Transfer Date
sell, transfer, assign, set over and convey to the Trust (as the designee of the
Depositor) by execution and delivery of a Subsequent Transfer Instrument, all
the right, title and interest of the Seller in and to the Subsequent Assets
identified on the List of Contracts attached to the Subsequent Transfer
Instrument, including all rights to receive payments on or with respect to the
Subsequent Assets due after the related Subsequent Cut-off Date, and all items
with respect to such Subsequent Assets in the related Mortgage Loan Files,
Contract Files and Land-and-Home Contract Files. The transfer to the Trustee by
the Seller of the Subsequent Assets shall be absolute and is intended by the
Seller, the Trustee and the Certificateholders to constitute and to be treated
as a sale of the Subsequent Assets by the Seller to the Trust.
The purchase price paid by the Trustee shall be one hundred percent (100%)
of the aggregate Cut-off Date Principal Balances of such Subsequent Assets. The
purchase price of Subsequent Assets shall be paid solely with amounts in the
Pre-Funding Account. This Agreement shall constitute a fixed price contract in
accordance with Section 860G(a)(3)(A)(ii) of the Code.
(b) The Seller shall transfer the Subsequent Assets to the Trustee, and
the Trustee shall release funds from the Pre-Funding Account, only upon the
satisfaction of each of the following conditions on or prior to the related
Subsequent Transfer Date:
(i) the Seller shall have provided the Trustee with an Addition
Notice at least five Business Days prior to the Subsequent
Transfer Date and shall have
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provided any information reasonably requested by the Trustee
with respect to the Subsequent Assets;
(ii) the Seller shall have delivered the related Mortgage Loan
File, Contract File and Land-and-Home Contract File for each
Subsequent Asset to the Custodian at least two Business Days
prior to the Subsequent Transfer Date;
(iii) the Seller shall have delivered to the Trustee a duly executed
Subsequent Transfer Instrument substantially in the form of
Exhibit P, which shall include a List of Contracts identifying
the related Subsequent Contracts and a Mortgage Loan Schedule
identifying the related Mortgage Loans;
(iv) as of each Subsequent Transfer Date, as evidenced by delivery
of the Subsequent Transfer Instrument, the Seller shall not be
insolvent nor shall it have been made insolvent by such
transfer nor shall it be aware of any pending insolvency;
(v) such sale and transfer shall not result in a material adverse
tax consequence to the Trust (including the Master REMIC and
the Subsidiary REMIC) or the Certificateholders;
(vi) the Pre-Funding Period shall not have ended;
(vii) the Seller shall have delivered to the Trustee an Officer's
Certificate, substantially in the form attached hereto as
Exhibit Q, confirming the satisfaction of each condition
precedent and the representations specified in this Section
2.03 and in Sections 3.01 and 3.03; and
(viii) the Seller shall have delivered to the Trustee Opinions of
Counsel addressed to Fitch, Xxxxx'x and the Trustee with
respect to the transfer of the Subsequent Assets substantially
in the form of the Opinions of Counsel delivered to the
Trustee on the Closing Date regarding certain bankruptcy,
corporate and tax matters, unless such matters are covered in
the opinions delivered on the Closing Date.
(ix) the Seller shall have delivered to the Trustee a copy of the
executed Subsequent Transfer Instrument between the Seller and
the Trustee, substantially in the form of Exhibit A to the
Transfer Agreement and dated as of the Subsequent Transfer
Date.
(c) Before the last day of the Pre-Funding Period, the Seller shall
deliver to the Trustee a letter from Deloitte & Touche or another nationally
recognized accounting firm retained by the Seller (with copies provided to the
Rating Agencies, the Underwriter and the Depositor) that is in form, substance
and methodology the same as that delivered under Section 2.02(5) of this
Agreement, except that it shall address the Subsequent Assets and their
conformity in all material respects to the characteristics described in Section
3.04(3) of this Agreement.]
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SECTION 2.04. Acceptance by Trustee.
(a) On the Closing Date and each Subsequent Transfer Date, if the
conditions set forth in Sections 2.01, 2.02 and 2.03, respectively, have been
satisfied, the Trustee shall deliver a certificate to the Depositor
substantially in the form of Exhibit G hereto acknowledging conveyance of the
Assets, identified on the applicable Asset Schedule and the related Contract
Files, Land-and-Home Contract Files and the Mortgage Loans, identified on the
applicable Mortgage Loan Schedule and the related Trustee Mortgage Loan Files to
the Trustee, subject to the Custodian's review below, and declaring that the
Trustee, directly or through the Custodian, will hold all the Assets that have
been delivered in trust, upon the terms herein set forth, for the use and
benefit of all Certificateholders and on the Closing Date the Trustee shall
issue upon the order of the Depositor Certificates representing ownership of a
beneficial interest in 100% of the Trust.
(b) (i) On or prior to the Closing Date, the Trustee will review each
Contract File to ascertain that the documents delivered
pursuant to Section 2.01 appear on their face to contain the
requisite signatures by or on behalf of the respective parties
thereto, and shall deliver to the Depositor (with a complete
copy thereof to the Servicer) the acknowledgement and
certification in the form attached hereto as Exhibit H,
subject to any exceptions noted in an exceptions schedule
attached thereto, to the effect that, as to each Contract set
forth on the List of Contracts: (A) all of the following
documents are in its possession or have been delivered for
recording or filing: (I) all documents specified in clauses
(a), (b), (d), (f) and (g) of the definition of "Contract
File" and (II) documents specified in clauses (c), (e), (h),
(i) and (j) of the definition of "Contract File" for those
Contracts which the Seller or Depositor has notified the
Trustee or the Custodian, with respect to clause (c), as
having an assumption, modification, consolidation or extension
agreement, with respect to clause (e), which type of
perfection of security interest in the related Manufactured
Home granted by the Contract should be in the Contract File,
with respect to clause (h), as having a guarantee executed in
connection with the promissory note, with respect to clause
(i), as having a loan transfer agreement, and with respect to
clause (j), identifying any other collateral security and (B)
such documents have been reviewed by it and appear to relate
to such Contract.
(ii) On or prior to the Closing Date, the Trustee will review each
Land-and-Home Contract File to ascertain that the documents
delivered pursuant to Section 2.01 appear on their face to
contain the requisite signatures by or on behalf of the
respective parties thereto, and shall deliver to the Depositor
(with a complete copy thereof to the Servicer) the
acknowledgement and certification in the form attached hereto
as Exhibit H, subject to any exceptions noted in an exceptions
schedule attached thereto, to the effect that, as to each
Land-and-Home Contract set forth on the List of Contracts: (A)
all of the following documents are in its possession or have
been delivered for recording or filing: (I) all documents
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specified in clauses (a), (b), (c), (d) and (e) of the
definition of "Land-and-Home Contract File" and (II) documents
specified in clause (f) of the definition of "Land-and-Home
Contract File" for those Contracts which the Seller or
Depositor has notified the Trustee or the Custodian as having
an assumption, modification, consolidation or extension
agreement and (B) such documents have been reviewed by it and
appear to relate to such Contract.
(iii) On or prior to the Closing Date, the Trustee will review each
Trustee Mortgage Loan File to ascertain that the documents
delivered pursuant to Section 2.01 appear on their face to
contain the requisite signatures by or on behalf of the
respective parties thereto, and shall deliver to the Depositor
(with a complete copy thereof to the Servicer) the
acknowledgement and certification in the form attached hereto
as Exhibit H, subject to any exceptions noted in an exceptions
schedule attached thereto, to the effect that, as to each
Mortgage Loan set forth on the Mortgage Loan Schedule: (A) all
documents required to be included in the Trustee Mortgage Loan
File are included therein and (B) such documents have been
reviewed by it and appear to relate to such Mortgage Loan.
(iv) With respect to Sections 2.04(b)(i), (ii) and (iii) above, the
Trustee will update the exceptions set forth on Schedule A of
Exhibit H hereto every 90 days until the 2nd anniversary of
the Closing Date and distribute such updated schedules to the
Depositor, Servicer and the Seller. In performing the review
set forth in Sections 2.04(b)(i), (ii) and (iii) above, the
Trustee shall make sure that the documents are executed and
endorsed, but shall be under no duty or obligation to inspect,
review or examine any such documents, instruments,
certificates or other papers to determine that the same are
valid, binding, legally effective, properly endorsed, genuine,
enforceable or appropriate for the represented purpose or that
they have actually been recorded or are in recordable form or
that they are other than what they purport to be on their
face. The Trustee shall have no responsibility for verifying
the genuineness or the legal effectiveness of or authority for
any signatures of or on behalf of any party or endorser.
(c) If, in its review of the Trustee Mortgage Loan Files, the Contract
Files and the Land-and-Home Contract Files as described in Exhibit G, the
Trustee or its Custodian discovers a breach of the representations or warranties
set forth in Sections 3.02, 3.03, 3.04 or 3.05, the Seller shall promptly cure
such breach or repurchase or replace such Asset pursuant to Section 3.06.
SECTION 2.05. REMIC Provisions.
The Preliminary Statement sets forth the designations and "latest possible
maturity date" for federal income tax purposes of all interests created hereby.
The "Startup Day" for purposes of the REMIC Provisions shall be the Closing
Date. The "tax matters person" with respect to
43
each REMIC created hereunder shall be the Class R Certificateholder and the
Class R Certificateholder shall hold the Tax Matters Person Certificate. The
Trustee shall act as agent for the Tax Matters Person. The Trust's fiscal year
shall be the calendar year and, for the purposes of Section 860C of the Code,
the taxable income of each REMIC created hereunder shall be computed under an
accrual method of accounting.
It is intended that the assets with respect to which any REMIC election is
to be made, as set forth in the Preliminary Statement, shall constitute, and
that the conduct of matters relating to such assets shall be such as to qualify
such assets as, a "real estate mortgage investment conduit" as defined in and in
accordance with the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as agent (and the Trustee is
hereby appointed to act as agent) on behalf of each REMIC created hereunder and
that in such capacity it shall: (a) prepare and file, or cause to be prepared
and filed, in a timely manner, U.S. Real Estate Mortgage Investment Conduit
Income Tax Returns (Forms 1066 or any successor form adopted by the Internal
Revenue Service) and prepare and file or cause to be prepared and filed with the
Internal Revenue Service and applicable state or local tax authorities income
tax or information returns for each taxable year with respect to each REMIC
created hereunder, containing such information and at the times and in the
manner as may be required by the Code or state or local tax laws, regulations,
or rules, and furnish or cause to be furnished to Certificateholders the
schedules, statements or information at such times and in such manner as may be
required thereby; (b) within thirty days of the Closing Date, furnish or cause
to be furnished to the Internal Revenue Service, on Forms 8811 or as otherwise
may be required by the Code, the name, title, address, and telephone number of
the person that the holders of the Certificates may contact for tax information
relating thereto, together with such additional information as may be required
by such Form, and update such information at the time or times in the manner
required by the Code; (c) make or cause to be made elections that such assets be
treated as a REMIC on the federal tax return for its first taxable year (and, if
necessary, under applicable state law); (d) prepare and forward, or cause to be
prepared and forwarded, to the Certificateholders and to the Internal Revenue
Service and, if necessary, state tax authorities, all information returns and
reports as and when required to be provided to them in accordance with the REMIC
Provisions, including without limitation, the calculation of any original issue
discount using the prepayment assumption described in the Prospectus Supplement;
(e) provide information necessary for the computation of tax imposed on the
transfer of a Class R Certificate to a Person that is not a Permitted
Transferee, or an agent (including a broker, nominee or other middleman) of a
non-Permitted Transferee, or a pass-through entity in which a non-Permitted
Transferee is the record holder of an interest (the reasonable cost of computing
and furnishing such information may be charged to the Person liable for such
tax); (f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so as
to maintain the REMIC status of each REMIC created hereunder under the REMIC
Provisions; (g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of either of the
REMICs created hereunder; (h) pay, from the sources specified in the last
paragraph of this Section 2.05, the amount of any federal or state tax,
including prohibited transaction taxes as described below, imposed on each REMIC
created hereunder prior to its termination when and as the same shall be due and
payable (but such obligation shall not prevent the Trustee or any other
appropriate Person from contesting any such tax in appropriate proceedings and
shall not prevent the Trustee from withholding payment of such tax, if permitted
by law, pending the outcome of such proceedings); (i) ensure that federal,
44
state or local income tax or information returns shall be signed by the Trustee
or such other person as may be required to sign such returns by the Code or
state or local laws, regulations or rules; (j) maintain records relating to each
REMIC created hereunder, including, but not limited to, the income, expenses,
assets and liabilities thereof and the fair market value and adjusted basis of
the assets determined at such intervals as may be required by the Code, as may
be necessary to prepare the foregoing returns, schedules, statements or
information; and (k) as and when necessary and appropriate, represent at the
expense of the Trust each REMIC created hereunder in any administrative or
judicial proceedings relating to an examination or audit by any governmental
taxing authority, request an administrative adjustment as to any taxable year of
each REMIC created hereunder, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of each REMIC created hereunder, and otherwise act on behalf of each
REMIC created hereunder in relation to any tax matter or controversy involving
it.
In order to enable the Trustee to perform its duties as set forth herein,
the Seller shall provide, or cause to be provided, to the Trustee within ten
(10) days after the Closing Date all information or data that the Trustee
requests in writing and determines to be relevant for tax purposes to the
valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows of
the Certificates and the Loans. Thereafter, the Seller shall provide to the
Trustee promptly upon written request therefor, any such additional information
or data that the Trustee may, from time to time, reasonably request in order to
enable the Trustee to perform its duties as set forth herein. The Seller hereby
indemnifies the Trustee for any losses, liabilities, damages, claims or expenses
of the Trustee arising from any errors or miscalculations of the Trustee that
result from any failure of the Seller to provide, or to cause to be provided,
accurate information or data to the Trustee on a timely basis.
In the event that any tax is imposed on "prohibited transactions" of any
REMIC created hereunder as defined in Section 860F(a)(2) of the Code, on the
"net income from foreclosure property" of any REMIC created hereunder as defined
in Section 860G(c) of the Code, on any contribution to any REMIC created
hereunder after the Startup Day pursuant to Section 860G(d) of the Code, or any
other tax is imposed, such tax shall be paid from the Trust or as otherwise
provided for herein; provided, that such tax shall be paid by (i) the Trustee,
if such tax arises out of or results from a breach by the Trustee of any of its
obligations under this Agreement, (ii) the Servicer, or if such tax arises out
of or results from a breach by the Servicer or Seller of any of their
obligations under this Agreement, (iii) the Seller, if any tax arises out of or
results from the Seller's obligation to repurchase a Mortgage Loan pursuant to
Section 3.06.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties Regarding the Originator and
the Seller.
(a) The Originator represents and warrants, effective on the Closing
Date and each Subsequent Transfer Date, that:
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(1) Formation and Good Standing. The Originator is a limited
liability company duly formed, validly existing and in good standing
under the laws of the jurisdiction of its formation and has the
organizational power to own its assets and to transact the business
in which it is currently engaged. The Originator is duly qualified
to do business as a foreign limited liability company and is in good
standing in each jurisdiction in which the character of the business
transacted by it or properties owned or leased by it requires such
qualification and in which the failure so to qualify would have a
material adverse effect on the business, properties, assets, or
condition (financial or other) of the Originator.
(2) Authorization; Binding Obligations. The Originator has
the power and authority to make, execute, deliver and perform this
Agreement and all of the transactions contemplated under this
Agreement, and cause the Trust to make, execute, deliver and perform
its obligations under this Agreement and has taken all necessary
corporate action to authorize the execution, delivery and
performance of this Agreement. When executed and delivered, this
Agreement will constitute the legal, valid and binding obligation of
the Originator enforceable in accordance with its terms, except as
enforcement of such terms may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies.
(3) No Consent Required. The Originator is not required to
obtain the consent of any other party or any consent, license,
approval or authorization from, or registration or declaration with,
any governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement.
(4) No Violations. The execution, delivery and performance
of this Agreement by the Originator will not violate any provision
of any existing law or regulation or any order or decree of any
court or the Articles of Incorporation or Bylaws of the Originator,
or constitute a material breach of any mortgage, indenture, contract
or other agreement to which the Originator is a party or by which
the Originator may be bound.
(5) Litigation. No litigation or administrative proceeding
of or before any court, tribunal or governmental body is currently
pending, or to the knowledge of the Originator threatened, against
the Originator or any of its properties or with respect to this
Agreement or the Certificates which, if adversely determined, would
in the opinion of the Originator have a material adverse effect on
the transactions contemplated by this Agreement.
(6) Licensing. The Originator is duly registered as a
finance company in each state in which Assets were originated, to
the extent such registration is required by applicable law.
46
(b) The Seller represents and warrants, effective on the Closing Date
and each Subsequent Transfer Date, that:
(1) Formation and Good Standing. The Seller is a limited
liability company duly formed, validly existing and in good standing
under the laws of the jurisdiction of its formation and has the
organizational power to own its assets and to transact the business
in which it is currently engaged. The Seller is duly qualified to do
business as a foreign limited liability company and is in good
standing in each jurisdiction in which the character of the business
transacted by it or properties owned or leased by it requires such
qualification and in which the failure so to qualify would have a
material adverse effect on the business, properties, assets, or
condition (financial or other) of the Seller.
(2) Authorization; Binding Obligations. The Seller has the
power and authority to make, execute, deliver and perform this
Agreement and all of the transactions contemplated under this
Agreement, and cause the Trust to make, execute, deliver and perform
its obligations under this Agreement and has taken all necessary
corporate action to authorize the execution, delivery and
performance of this Agreement. When executed and delivered, this
Agreement will constitute the legal, valid and binding obligation of
the Seller enforceable in accordance with its terms, except as
enforcement of such terms may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies.
(3) No Consent Required. The Seller is not required to
obtain the consent of any other party or any consent, license,
approval or authorization from, or registration or declaration with,
any governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement.
(4) No Violations. The execution, delivery and performance
of this Agreement by the Seller will not violate any provision of
any existing law or regulation or any order or decree of any court
or the Articles of Incorporation or Bylaws of the Seller, or
constitute a material breach of any mortgage, indenture, contract or
other agreement to which the Seller is a party or by which the
Seller may be bound.
(5) Litigation. No litigation or administrative proceeding
of or before any court, tribunal or governmental body is currently
pending, or to the knowledge of the Seller threatened, against the
Seller or any of its properties or with respect to this Agreement or
the Certificates which, if adversely determined, would in the
opinion of the Seller have a material adverse effect on the
transactions contemplated by this Agreement.
(6) Licensing. The Seller is duly registered as a finance
company in each state in which Assets were originated, to the extent
such registration is required by applicable law.
47
SECTION 3.02. Representations and Warranties Regarding Each Contract.
The Seller and Originator represent and warrant, jointly and severally, as
of the Closing Date with respect to each Initial and Additional Contract, and as
of the applicable Subsequent Transfer Date with respect to each Subsequent
Contract identified on the List of Contracts attached to the related Subsequent
Transfer Instrument:
(1) List of Contracts. The information set forth in the
applicable List of Contracts is true and correct as of its date.
(2) Payments. As of the Cut-off Date, the most recent
scheduled payment was made by or on behalf of the Obligor (without
any advance from the Originator, the Seller or any Person acting at
the request of the Seller) or was not past due for more than [59]
days (in the case of an Initial or Additional Contract) or [30] days
(in the case of a Subsequent Contract).
(3) No Waivers. The terms of the Contract have not been
waived, altered or modified in any respect, except by instruments or
documents identified in the Contract File or Land-and-Home Contract
File, as applicable.
(4) Binding Obligation. The Contract is the legal, valid and
binding obligation of the Obligor thereunder and is enforceable in
accordance with its terms, except as such enforceability may be
limited by laws affecting the enforcement of creditors' rights
generally.
(5) No Defenses. The Contract is not subject to any right of
rescission, setoff, counterclaim or defense, including the defense
of usury, and the operation of any of the terms of the Contract or
the exercise of any right thereunder will not render the Contract
unenforceable in whole or in part or subject to any right of
rescission, setoff, counterclaim or defense, including the defense
of usury, and no such right of rescission, setoff, counterclaim or
defense has been asserted with respect thereto.
(6) Insurance Coverage. The Manufactured Home securing the
Contract is covered by a Hazard Insurance Policy in the amount
required by Section 5.09. With respect to any Contract, either the
Seller or the Originator has obtained: (a) a statement from the
Obligor's insurance agent that the Manufactured Home was, at the
time of origination of the Contract, not in a federally designated
special flood hazard area; or (b) evidence that, at the time of
origination, flood insurance was in effect, which coverage is at
least equal to that required by Section 5.09 or such lesser coverage
as may be available under the federal flood insurance program. All
premiums due as of the Closing Date on such insurance have been paid
in full.
(7) Origination. The Contract was originated by the
Originator or a manufactured housing dealer and purchased by the
Seller or originated or acquired by the Seller directly, in the
regular course of its business.
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(8) Lawful Assignment. The Contract was not originated in
and is not subject to the laws of any jurisdiction whose laws would
make the transfer of the Contract pursuant to this Agreement or
pursuant to transfers of Certificates, or the ownership of the
Contract by the Trust, unlawful or render the Contract
unenforceable.
(9) Compliance with Law. At the date of origination of the
Contract, all requirements of any federal and state laws, rules and
regulations applicable to the Contract, including, without
limitation, usury, truth in lending and equal credit opportunity
laws, have been complied with, and the Originator and the Seller
shall for at least the period of this Agreement, maintain in its
possession, available for the Trustee's inspection, and shall
deliver to the Trustee upon demand, evidence of compliance with all
such requirements. Such compliance is not affected by the Trust's
ownership of the Contract.
(10) Contract in Force. The Contract has not been satisfied
or subordinated in whole or in part or rescinded, and the
Manufactured Home securing the Contract has not been released from
the lien of the Contract in whole or in part.
(11) Valid Security Interest. Each Contract (other than the
Land-and-Home Contracts) creates a valid and enforceable perfected
first priority security interest in favor of the Originator in the
Manufactured Home covered thereby as security for payment of the
Cut-off Date Principal Balance of such Contract. The Originator has
assigned all of its right, title and interest in such Contract,
including the security interest in the Manufactured Home covered
thereby, to the Seller, and the Seller has assigned all of its
right, title and interest in such Contract, including the security
interest in the Manufactured Home covered thereby, to the Depositor.
The Depositor has assigned all of its right, title and interest in
such Contract, including the security interest in the Manufactured
Home covered thereby, to the Trustee. The Trustee has and will have
a valid and perfected and enforceable first priority security
interest in such Contract and Manufactured Home.
(12) Each Mortgage is a valid first lien in favor of the
Seller on real property securing the amount owed by the Obligor
under the related Land-and-Home Contract subject only to (a) the
lien of current real property taxes and assessments, (b) covenants,
conditions and restrictions, rights of way, easements and other
matters of public record as of the date of recording of such
Mortgage, such exceptions appearing of record being acceptable to
mortgage lending institutions generally in the area wherein the
property subject to the Mortgage is located or specifically
reflected in the appraisal obtained in connection with the
origination of the related Land-and-Home Contract obtained by the
Seller and (c) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by such Mortgage. As of the Closing
Date, with respect to each Initial and Additional Contract, and as
of the Subsequent Transfer Date, the Originator will
49
have assigned all of its right, title and interest in such
Land-and-Home Contract and related Mortgage, including the security
interest in the Manufactured Home covered thereby, to the Seller who
has assigned it to the Depositor. The Depositor in turn will have
assigned all of its right, title and interest in such Contract,
including the security interest in the Manufactured Home covered
thereby, to the Trustee. The Trustee has and will have a valid and
perfected and enforceable first priority security interest in the
related Mortgaged Property subject to the exceptions set forth
above.
(13) Capacity of Parties. The signature(s) of the Obligor(s)
on the Contract are genuine and all parties to the Contract had full
legal capacity to execute the Contract.
(14) Good Title. In the case of a Contract purchased from the
Originator or a manufactured housing dealer, the Seller purchased
the Contract for fair value and took possession thereof in the
ordinary course of its business, without knowledge that the Contract
was subject to a security interest. Immediately prior to the
transfer of the Contract by the Seller to the Depositor under the
terms of the Transfer Agreement, the Seller had good and marketable
title thereto free and clear of any encumbrance, equity, loan,
pledge, charge, claim or security interest and was the sole owner
thereof with full right to transfer the Contract to the Seller. With
respect to any Contract bearing a stamp indicating that such
Contract has been sold to another party, such other party's interest
in such Contract has been released.
(15) No Defaults. As of the Cut-off Date or Subsequent
Cut-off Date, as applicable, there was no default, breach, violation
or event permitting acceleration existing under the Contract and no
event which, with notice and the expiration of any grace or cure
period, would constitute such a default, breach, violation or event
permitting acceleration under such Contract (except payment
delinquencies permitted by clause (2) above). Neither the Originator
nor the Seller has waived any such default, breach, violation or
event permitting acceleration except payment delinquencies permitted
by clause (2) above. As of the Closing Date or the Subsequent
Transfer Date, as applicable, the related Manufactured Home is, to
the best of the Originator's and the Seller's knowledge, free of
damage and in good repair. No Manufactured Home has suffered damage
that is not covered by a Hazard Insurance Policy, including, but not
limited to, hurricanes, earthquakes, floods, tornadoes,
straight-line winds, sinkholes, mudslides, volcanic eruptions and
other natural disasters.
(16) No Liens. As of the Closing Date or the Subsequent
Transfer Date, as applicable, there are no liens or claims which
have been filed for work, labor or materials affecting the
Manufactured Home or any related Mortgaged Property securing the
Contract which are or may be liens prior to, or equal or coordinate
with, the lien of the Contract.
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(17) Equal Installments. Each Contract with a fixed Contract
Rate provides for level monthly payments which, if paid on each Due
Date, fully amortize the loan over its term.
(18) Enforceability. The Contract contains customary and
enforceable provisions so as to render the rights and remedies of
the holder thereof adequate for the realization against the
collateral of the benefits of the security provided thereby.
(19) One Original. There is only one original executed
Contract (other than the original executed copy retained by the
Obligor), which Contract has been delivered to the Trustee or the
Custodian on or before the Closing Date or the Subsequent Transfer
Date, as applicable
(20) Loan-to-Value Ratio. At the time of their origination
all of the Contracts had Loan-to-Value Ratios not greater than 100%.
(21) Primary Resident. At the time of origination of the
Contract the Obligor was the primary resident of the related
Manufactured Home. In the case of the "Buy For" program, the Obligor
has purchased the Manufactured Home for the primary resident. The
"Buy For" program loans represent [___] Initial Contracts and [___]%
of the Cut-off Date Principal Balance of the Initial Contracts as of
the Cut-off Date.
(22) Not Real Estate. With respect to each Contract other
than a Land-and-Home Contract, the related Manufactured Home is not
generally considered or classified as part of the real estate on
which it is located under the laws of the jurisdiction in which it
is located.
(23) Notation of Security Interest. With respect to each
Contract other than a Land-and-Home Contract, if the related
Manufactured Home is located in a state in which notation of a
security interest on the title document is required or permitted to
perfect such security interest, the title document shows, or if a
new or replacement title document with respect to such Manufactured
Home is being applied for such title document will be issued within
180 days and will show, the Seller or its assignee as the holder of
a first priority security interest in such Manufactured Home; if the
related Manufactured Home is located in a state in which the filing
of a financing statement under the UCC is required to perfect a
security interest in manufactured housing, such filings or
recordings have been duly made and show the Seller or its assignee
as secured party. If the related Manufactured Home secures a
Land-and-Home Contract, such Manufactured Home is subject to a
Mortgage properly filed in the appropriate public recording office
or such Mortgage will be properly filed in the appropriate public
recording office within 180 days, naming either the Originator or
the Seller as mortgagee. In either case, the Trustee has the same
rights as the secured party of record would have (if such secured
party were still the owner of the Contract) against all
51
Persons (including the Originator, the Seller and any trustee in
bankruptcy of the Originator or the Seller) claiming an interest in
such Manufactured Home.
(24) Secondary Mortgage Market Enhancement Act. The related
Manufactured Home is a "manufactured home" within the meaning of 00
Xxxxxx Xxxxxx Code, Section 5402(6). Each manufactured housing
dealer from whom the Seller purchased such Contract, if any, was
then approved by the Seller in accordance with the requirements of
the Secretary of Housing and Urban Development set forth in 24 CFR
Section 201.27. At the origination of each Contract, the Originator
was approved for insurance by the Secretary of Housing and Urban
Development pursuant to Section 2 of the National Housing Act.
(25) Qualified Mortgage. The Contract represents a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code. The
Originator and the Seller represent and warrant, jointly and
severally, that, either as of the date of origination or Closing
Date, the fair market value of the property securing each Contract
was not less than 80% of the "adjusted issue price" (within the
meaning of the REMIC Provisions) of such Contract.
(26) Simple Interest and Actuarial Contracts. No more than
[___]% of the Initial Contracts are "simple interest" manufactured
housing installment loan agreements or manufactured housing
installment sales contracts and the remaining Initial Contracts are
actuarial manufactured housing installment loan agreements or
manufactured housing installment sales contracts.
(27) Land-and-Home Contracts: No Contract other than a
Land-and-Home Contract is secured, or intended to be secured, in
whole or in part by the lien of a mortgage or deed of trust creating
a first lien on an estate in fee simple in the real property.
(28) Financing of Real Property: No Contract other than a
Land-and-Home Contract has financed any amount in respect of real
property.
SECTION 3.03. Representations and Warranties Regarding Each Mortgage Loan.
The Seller and the Originator represent and warrant, jointly and
severally, as of the Closing Date with respect to each Initial and Additional
Asset, and as of the applicable Subsequent Transfer Date with respect to each
Subsequent Asset identified in the Mortgage Loan Schedule attached to the
related Subsequent Transfer Instrument:
(1) The information pertaining to each Mortgage Loan set
forth in the Mortgage Loan Schedule was true and correct at the date
or dates as of which such information was furnished.
(2) Neither the Seller nor the Originator has assigned any
interest or participation in any Mortgage Loan other than as
contemplated in this Agreement (or if any such interest or
participation has been assigned it has been released or will be
released prior to or concurrently with the transfer of such Mortgage
Loan
52
pursuant to the Transfer Agreement, any Subsequent Transfer
Agreement or this Agreement). Neither the Seller nor the Originator
has acted to (i) modify any Mortgage Note or Mortgage relating to
any Mortgage Loan in any material respect, (ii) satisfy, cancel or
subordinate any Mortgage Loan in whole or in part, (iii) release the
related Mortgaged Property in whole or in part from the lien of any
Mortgage Loan or (iv) execute any instrument effecting the release,
cancellation, modification or satisfaction of any Mortgage Loan.
(3) The Mortgage Note for each Mortgage Loan delivered to
the Seller, the Depositor or the Trustee is the original Mortgage
Note and is the only Mortgage Note evidencing the Mortgage Loan that
has been manually signed by the related Obligor. As of the Cut-off
Date, there is no default, breach, violation or event of
acceleration existing under any of the Mortgage Loan Documents
transferred to the Trustee or any event that with notice and
expiration of any grace or cure period would result in such a
default, breach, violation or event of acceleration.
(4) As of the applicable Cut-off Date, no Monthly Payment on
any Mortgage Loan was more than [59] days delinquent.
(5) Each Mortgage Note and Mortgage executed and delivered
by an Obligor in connection with a Mortgage Loan has been duly
executed and delivered by the related Obligor and constitutes a
legal, valid and binding obligation of such Obligor, enforceable
against such Obligor in accordance with its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency or other similar laws affecting the enforcement of
creditors' rights generally and to general principles of equity
(whether considered in a proceeding at law or in equity).
(6) Each Mortgage securing a Mortgage Loan has been duly
recorded in the appropriate governmental recording office in the
jurisdiction where the related Mortgaged Property is located or has
been submitted to such recording office for recordation.
(7) If the Mortgage securing a Mortgage Loan does not name
the Originator or the Seller as the beneficiary or mortgagee, then a
valid assignment, in recordable form, assigning the Mortgage to the
Originator or the Seller, has been duly recorded (or has been sent
for recordation) in the appropriate records depository for the
jurisdiction in which the related Mortgaged Property is located, and
the Originator or the Seller has delivered to the Seller the
original of such assignment accompanied by appropriate evidence that
such assignment has been duly recorded (or a copy thereof certified
by the appropriate records depository to be a true and complete copy
of the recorded assignment) or a copy of the original assignment
together with a certificate from an officer of the Originator or the
Seller certifying that such assignment has been sent for recordation
in the appropriate records depository, but that such recorded
assignment has not been returned to the Originator or the Seller.
53
(8) No Mortgage Loan has been modified in any material
respect since the date of its origination and no Mortgage Loan is
presently subordinated in whole or in part to any other lien, nor
has the Mortgaged Property securing any Mortgage Loan been released
in whole or in part from the lien of the related Mortgage.
(9) Each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder
thereof adequate for the realization of the holder's rights against
the related Mortgaged Property in the event of a foreclosure or
trustee's sale of such property. Upon default by an Obligor on a
Mortgage Loan and foreclosure on, or trustee's sale of, the related
Mortgaged Property pursuant to proper procedures, the holder of the
Mortgage Loan will be able to deliver good and merchantable title to
the Mortgaged Property underlying that Mortgage Loan, except to the
extent that the enforceability of remedies against such Obligor may
be subject to applicable bankruptcy, insolvency or other similar
laws affecting creditors' rights generally, and to general
principles of equity (whether considered in a proceeding at law or
in equity).
(10) In connection with the origination of each Mortgage
Loan, the originator complied with all applicable federal, state and
local laws and regulations, including but not limited to those
related to consumer credit, equal credit opportunity, real estate
settlement procedures, truth-in-lending and usury.
(11) Any appraisal of the Mortgaged Property underlying each
Mortgage Loan was made at the time the Mortgage Loan was originated
by an appraiser who met the minimum qualifications of Xxxxxx Xxx or
Xxxxxxx Mac for appraisers of conventional residential mortgage
loans.
(12) The assignment of each Mortgage to the Trustee
constitutes a legal, valid and binding assignment of the Mortgage
and creates, or upon recordation will create, a valid first priority
security interest in favor of the Trustee in such Mortgage or vests
ownership of such Mortgage in the Trustee.
(13) The Mortgage securing each Mortgage Loan creates a valid
and enforceable first lien on the related Mortgaged Property subject
only to Permitted Encumbrances. "Permitted Encumbrances" consist of
the following in respect of any Mortgage Loan:
(A) the lien of current real property taxes and
assessments not yet due and payable;
(B) covenants, conditions and restrictions, rights of
way, easements and other matters of public record
as of the date of recording acceptable to prudent
mortgage lending institutions generally and
specifically referred to in either the title
opinion or the lender's title insurance policy
54
delivered to the related originator and referred
to or otherwise considered in the appraisal made
for the originator; and
(C) other matters to which like properties are
commonly subject which do not materially interfere
with the benefits of the security intended to be
provided by the Mortgage or the use, enjoyment,
value or marketability of the related Mortgaged
Property.
(14) There are no mechanic's or other liens against the
related Mortgaged Property which are superior to or equal to the
first lien of the related Mortgage Loan, except such liens that are
expressly insured against by a Title Insurance Policy.
(15) There are no delinquent taxes, governmental assessments
or municipal charges due and owing as to any Mortgaged Property.
(16) Each Mortgaged Property is free of material damage and,
to the best of the Servicer's knowledge, is in good repair. The
Servicer is not aware of any condemnation proceedings with respect
to any Mortgaged Property.
(17) All improvements located on a Mortgaged Property that
were considered in determining the appraised value of such Mortgaged
Property lie within the boundary lines of, and comply with building
restrictions applicable to, the Mortgaged Property. There is no
violation of applicable zoning laws or regulations with respect to
any Mortgaged Property. No improvements on adjoining properties
encroach upon any Mortgaged Property in any respect so as to affect
adversely the value or marketability of the Mortgaged Property.
(18) Except with respect to Staged Funded Loans, the full
principal amount of each Mortgage Loan has been paid to the related
Obligor or according to the direction of the Obligor. The Obligor
has no option under the related Mortgage to borrow additional funds
secured by the related Mortgage from the applicable Servicer or any
other person. The principal balance of each Mortgage Loan as of the
Cut-off Date, as set forth in the Mortgage Loan Schedule, is correct
and is secured solely by the related Mortgage.
(19) Except with respect to any funds held in a temporary
buy-down fund for a buy-down loan, no Mortgage Loan is subject to
any right of rescission, set-off, counterclaim or defense, including
without limitation the defense of usury, nor will the operation of
any of the terms of the related Mortgage Note or Mortgage, or the
exercise of any right thereunder, render either the Mortgage Note or
the Mortgage unenforceable, in whole or in part, or subject to any
right of rescission, set-off, counterclaim or defense, including
without limitation the defense of usury, and no such right of
rescission, set-off, counterclaim or defense has been asserted with
respect thereto.
55
(20) Pursuant to the terms of each Mortgage, the Mortgaged
Property is insured by an insurer acceptable to Xxxxxx Xxx against
loss by fire and such other risks as are usually insured against by
the broad form of extended coverage hazard insurance policy as is
from time to time available. Such Mortgaged Property also is insured
against flood hazards if the Mortgaged Property is in an area
identified by the Secretary of Housing and Urban Development or the
Director of the Federal Emergency Management Agency as subject to
special flood hazards (and if flood insurance is available for real
properties located in the area in which such Mortgaged Property is
located). All such insurance policies (collectively, the "hazard
insurance policy") meet the requirements of the current guidelines
of the Federal Insurance Administration, conform to the Xxxxxx Xxx
Xxxxxxx' Guide and the Xxxxxx Xxx Servicers' Guide, and collectively
constitute a standard policy of insurance for the locale where the
Mortgaged Property is located. The coverage provided by such a
hazard insurance policy is in the amount of the lesser of (i) the
full insurable value of the related Mortgaged Property on a
replacement cost basis or (ii) the unpaid balance of the Mortgage
Loan, and in any event must at least be sufficient to avoid
application of any co-insurance clause contained in such hazard
insurance policy. The hazard insurance policy names (and will name)
the present owner of the Mortgaged Property as the insured and
contains a standard mortgagee loss payable clause in favor of the
originator (or another initial payee under the related Mortgage
Note) and its successors and assigns, including the Seller, the
Depositor and its successors and assigns. The Mortgage obligates the
mortgagor thereunder to maintain the hazard insurance policy at the
mortgagor's cost and expense, and on the mortgagor's failure to do
so, authorizes the holder of the Mortgage to obtain and maintain
such insurance at such holder's cost and expense, and to seek
reimbursement therefor from the mortgagor. Where required by state
law or regulation, the mortgagor has been given an opportunity to
choose the carrier of the required hazard insurance.
(21) Each Mortgage Loan is secured by a fee simple estate
(or, if the Mortgaged Property is located in Hawaii or Maryland, a
leasehold estate) and the related Mortgaged Property consists of a
parcel of real property with a single family residence or a two- to
four-family dwelling erected thereon.
(22) Each Mortgage Loan is covered by either (i) an
attorney's opinion of title and abstract of title the form and
substance of which is acceptable to Xxxxxx Mae or (ii) a Title
Insurance Policy or other generally acceptable form of policy of
insurance for the jurisdiction in which the related Mortgaged
Property is located, issued by a title insurer qualified to do
business in the jurisdiction where the related Mortgaged Property is
located, insuring the initial mortgagee (or beneficiary in the case
of a deed of trust) and its successors and assigns (including the
Trustee) as to the first priority status of the lien created by the
related Mortgage, subject only to Permitted Encumbrances (as defined
above in paragraph (13), providing coverage in the amount of at
least 95% of the outstanding principal amount of the Mortgage Loan
and providing coverage against any loss by reason of the invalidity
or unenforceability of the lien
56
resulting from any provisions of the Mortgage providing for
adjustment to the Mortgage Rate and Monthly Payment.
(23) The Mortgage Loan was originated by a savings and loan
association, savings bank, commercial bank, credit union, insurance
company, or similar institution which is supervised and examined by
a federal or state authority, or by a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to Sections 203
and 211 of the National Housing Act.
(24) For any Mortgage that constitutes a deed of trust, a
trustee, authorized and duly qualified under applicable law to serve
as such, has been properly designated and currently serves as such
trustee and is named in the Mortgage, and no fees or expenses are or
will become payable by the Seller, the Depositor or its assignees
(including the Trustee) to the trustee under the deed of trust,
except in connection with a trustee's sale after default by the
Obligor.
(25) Each Mortgage Loan is a "qualified mortgage" within the
meaning specified for such term in section 860G of the Code and does
not contain any provision requiring action that would render it not
such a "qualified mortgage."
(26) As of the date hereof, no property securing a Mortgage
Loan is subject to foreclosure, litigation, bankruptcy or insolvency
proceedings or any workout or foreclosure agreement, and, to the
best of the Seller's and the Originator's knowledge, the filing of a
bankruptcy or insolvency proceeding that would result in any
Mortgage Loan becoming subject to bankruptcy or insolvency
proceedings is not imminent.
(27) If one or more REMIC elections are to be made with
respect to all or part of the Trust, the REMIC Loan-to-Value Ratio
of each Mortgage Loan is 125% or less either (i) at the time of its
origination or as of the Startup Day or (ii) if such Mortgage Loan
has been modified other than as a result of a default or reasonably
foreseeable default, as of the Startup Day.
The Mortgage Loan-to-Value Ratio is 100% or less either (i) at the time of
its origination or as of the Startup Day or (ii) if such Mortgage Loan has been
modified other than as a result of a default or reasonably foreseeable default,
as of the Startup Day.
SECTION 3.04. Representations and Warranties Regarding the Assets in the
Aggregate.
The Seller represents and warrants, as of the Closing Date with respect to
the Initial and Additional Assets, and as of each Subsequent Transfer Date with
respect to the related Subsequent Assets, that:
(1) Amounts. The aggregate principal amounts payable by
Obligors under the Assets as of the Cut-off Date equal the Cut-off
Date Pool Principal Balance. The aggregate principal amounts payable
by Obligors under the Initial Assets as of the Cut-off Date equal
$[__________]. The aggregate principal
57
amounts payable by Obligors under the Initial and Additional Assets
as of the Cut-off Date equal $[_____________].
(2) Characteristics of Initial and Additional Assets. The
Initial and Additional Assets have the following characteristics as
of the Cut-off Date:
(A) the Obligors on not more than [_____]% of the Initial
and Additional Assets by Cut-off Date Pool Principal
Balance are located in any one state, the Obligors on
not more than [_____]% of the Assets by Cut-off Date
Pool Principal Balance are located in an area with the
same zip code and the Obligors on not more than [_____]%
of the Assets by Cut-off Date Pool Principal Balance are
located in California in an area with the same zip code;
(B) no Initial or Additional Asset has a remaining maturity
of fewer than [_____] months or more than [_____]
months;
(C) the final scheduled payment date on the Initial or
Additional Asset with the latest maturity is in
[___________];
(D) [_____]% of the Initial and Additional Assets by Cut-off
Date Pool Principal Balance is attributable to loans for
purchases of new Manufactured Homes and approximately
[____]% is attributable to loans for purchases of used
Manufactured Homes;
(E) [____]% of the Initial and Additional Assets by Cut-off
Date Pool Principal Balance is attributable to
Land-and-Home Assets;
(F) the Weighted Average Net Asset Rate of the Initial and
Additional Assets as of the Cut-off Date is [_____]% per
annum;
(G) [____]% of the Initial and Additional Assets by Cut-off
Date Pool Principal Balance is attributable to loans for
the purchase of multi-section Manufactured Homes;
(H) the weighted average (by Cut-off Date Pool Principal
Balance) loan to value ratio of the Initial and
Additional Assets is [____]%;
(I) no Initial or Additional Asset was originated before
[____________]; and
(J) [____]% of the Initial and Additional Assets by Cut-off
Date Pool Principal Balance are secured by Manufactured
Homes located in a mobile home park.
(3) Characteristics of All Assets. The Assets have the
following characteristics as of the end of the Pre-Funding Period:
58
(A) the Weighted Average Net Asset Rate is not less than
[___]%, and not more than [__]% of the Cut-off Date Pool
Principal Balance is attributable to Assets with an
Asset Rate of less than [__]%;
(B) the weighted average (by Cut-off Date Pool Principal
Balance) Loan-to-Value Ratio of the Assets is not more
than [___]%;
(C) not less than [___]% of the Cut-off Date Pool Principal
Balance is attributable to loans for purchases of new
Manufactured Homes;
(D) not more than [___]% of the Cut-off Date Pool Principal
Balance is attributable to loans for the purchase of
single-section Manufactured Homes, and not less than
[___]% of the Cut-off Date Pool Principal Balance is
attributable to loans for the purchase of multi-section
Manufactured Homes;
(E) not less than 1% of the Cut-off Date Pool Principal
Balance is attributable to Land-and-Home Assets;
(F) not more than [___]% of the Cut-off Date Pool Principal
Balance is attributable to loans secured by Manufactured
Homes located in parks;
(G) the final scheduled payment date on the Asset with the
latest maturity will not be later than the end of
[_______________];
(H) the weighted average FICO score of the obligors is not
less than [___];
(I) the number of refinancings relating to repossessions is
not greater than [___]%; and
(J) no more than [___]% of the Assets will be secured by
Manufactured Homes located in the State of Texas.
(4) Computer Tape. The Computer Tape made available by the
Seller and the Originator was complete and accurate as of its date
and includes a description of the same Assets that are described in
the List of Assets, excluding any Assets subject to Principal
Prepayments in Full.
(5) Marking Records. By the Closing Date or Subsequent
Transfer Date, as applicable, the Seller and the Originator have
caused the portions of the Electronic Ledger relating to the Assets
to be clearly and unambiguously marked to indicate that such Assets
constitute part of the Trust and are owned by the Trust in
accordance with the terms of the trust created hereunder.
(6) No Adverse Selection. No adverse selection procedures
have been employed in selecting the Assets.
59
SECTION 3.05. Representations and Warranties Regarding the Asset Files.
The Seller has represented and warranted to the Depositor in the Transfer
Agreement, which representations and warranties the Seller hereby assigns to the
Trustee for the benefit of the Certificateholders, as of the Closing Date with
respect to the Initial and Additional Assets, and as of each Subsequent Transfer
Date with respect to the related Subsequent Assets, that:
(1) Bulk Transfer Laws. The transfer, assignment and
conveyance of the Mortgage Loans, the Trustee Mortgage Loan Files,
the Contracts, the Contract Files and Land-and-Home Contract Files
by the Seller pursuant to the Transfer Agreement is not subject to
the bulk transfer or any similar statutory provisions in effect in
any applicable jurisdiction.
SECTION 3.06. Repurchase of Assets or Substitution of Assets for
Breach of Representations and Warranties.
(a) Either the Originator or the Seller (the "Responsible Party") shall
repurchase an Asset, at its Repurchase Price, not later than the last day of the
month prior to the month that is 90 days after the day on which the Originator,
the Seller, the Servicer or the Trustee first discovers a breach of a
representation or warranty of the Originator or the Seller set forth in Sections
3.01, 3.02, 3.03, 3.04 or 3.05 of this Agreement that materially adversely
affects the Trust's or the Certificateholders' interest in such Asset and which
breach has not been cured; provided, however, that (i) in the event that a party
other than the Seller or the Originator first becomes aware of such breach, such
discovering party shall notify the Seller in writing within five Business Days
of the date of such discovery and (ii) with respect to any Asset incorrectly
described on the Asset Schedule with respect to unpaid principal balance, which
either the Seller or the Originator would otherwise be required to repurchase
pursuant to this Section, either the Seller or the Originator may, in lieu of
repurchasing such Asset, deliver to the Servicer for deposit in the Collection
Account no later than the first Determination Date that is 90 or more days from
the date of such discovery cash in an amount sufficient to cure such deficiency
or discrepancy. Any such cash so deposited shall be distributed to
Certificateholders on the immediately following Distribution Date as a
collection of principal on such Asset. Notwithstanding any other provision of
this Agreement, the obligation of the Seller and the Originator under this
Section shall not terminate upon a Service Transfer pursuant to Article VII.
Notwithstanding the foregoing, the Responsible Party shall repurchase any
Land-and-Home Contract, at such Asset's Repurchase Price, or substitute for it
an Eligible Substitute Asset as described in Section 3.06(b), if the Seller has
failed to deliver the related Land-and-Home Contract File to the Trustee within
30 days of the Closing Date. Each of the parties to this Agreement acknowledge
that the provisions of this Section 3.06 are an obligation solely of the Seller
and the Originator and not of any other party to this Agreement.
(b) On or prior to the date that is the second anniversary of the
Closing Date, either the Seller or the Originator, at its election, may
substitute one or more Eligible Substitute Assets for any Assets that it is
obligated to repurchase pursuant to Section 3.06(a) (such Assets being referred
to as the "Replaced Assets") upon satisfaction of the following conditions:
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(i) the Responsible Party shall have conveyed to the Trustee the
Assets to be substituted for the Replaced Assets and the Asset
Files related to such Assets and the Seller shall have marked
the Electronic Ledger indicating that such Assets constitute
part of the Trust;
(ii) the Assets to be substituted for the Replaced Assets are
Eligible Substitute Assets and the Responsible Party delivers
an Officers' Certificate, substantially in the form of Exhibit
L-2 hereto, to the Trustee certifying that such Assets are
Eligible Substitute Assets;
(iii) the Responsible Party shall have delivered to the Trustee
evidence of filing of a UCC1 financing statement executed by
the Responsible Party as debtor, naming the Trustee as secured
party filed in the jurisdiction of formation of such
Responsible Party, listing such Assets as collateral, or shall
have delivered to the Depositor or the Trustee, as the case
may be, an amended Asset Schedule;
(iv) in respect of Eligible Substitute Assets that are
Land-and-Home Contracts:
(x) the Responsible Party shall have delivered to the
Depositor, the related Land-and-Home Contract Files; and
(y) the Responsible Party shall have delivered to the
Trustee an Opinion of Counsel satisfactory to the Trustee to the
effect that the Trustee holds a perfected first priority lien in the
real estate securing such Eligible Substitute Assets, or evidence of
recordation of the assignment to the Trustee on behalf of the Trust
of each Mortgage securing such Eligible Contracts;
(v) the Seller shall have delivered to the Trustee an Opinion of
Counsel to the effect that the substitution of such Assets for
such Replaced Assets will not cause the Subsidiary REMIC or
Master REMIC to fail to qualify as a REMIC at any time under
then applicable REMIC Provisions or cause any "prohibited
transaction" that will result in the imposition of a tax under
such REMIC Provisions; and
(vi) if the aggregate Principal Balance of such Replaced Assets is
greater than the aggregate Principal Balance of the Assets
being substituted, the Responsible Party shall have delivered
to the Servicer for deposit in the Collection Account the
amount of such excess and shall have included in the Officers'
Certificate required by clause (ii) above a certification that
such deposit has been made.
Upon satisfaction of such conditions, the Trustee shall add such Assets
to, and delete such Replaced Assets from, the Asset Schedule. Such substitution
shall be effected prior to the first Determination Date that occurs more than 90
days after the Responsible Party becomes aware, or receives written notice from
the Trustee, of the breach referred to in Section 3.06(a). Promptly after any
substitution of an Asset, the Seller shall give written notice of such
substitution to Fitch and Xxxxx'x.
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(c) Upon receipt by the Trust by deposit in the Collection Account of
the Repurchase Price under subsection (a) above, or the delivery of an Eligible
Substitute Asset pursuant to subsection (b) above, and upon receipt of a
certificate of a Servicing Officer in the form attached hereto as Exhibit L-1 or
L-2, the Trustee shall convey and assign to the Responsible Party all of the
Trust's right, title and interest in the repurchased Asset or Replaced Asset
without recourse, representation or warranty, except as to the absence of liens,
charges or encumbrances created by or arising as a result of actions of the
Trustee.
(d) The Responsible Party shall defend and indemnify the Trustee, its
officers, directors, employees and agents and the Certificateholders against all
costs, expenses, losses, damages, claims and liabilities, including reasonable
fees and expenses of counsel, arising out of any claims which may be asserted
against or incurred by any of them as a result of any third-party action arising
out of any breach of any representation and warranty.
SECTION 3.07. No Repurchase or Substitution Under Certain Circumstances.
Notwithstanding any provision of this Agreement to the contrary, no
repurchase or substitution pursuant to Section 3.06 shall be made unless the
Responsible Party obtains for the Trustee an Opinion of Counsel addressed to the
Trustee that any such repurchase or substitution would not, under the REMIC
Provisions, (i) cause the Subsidiary REMIC or the Master REMIC to fail to
qualify as a REMIC while any regular interest in the Subsidiary REMIC or the
Master REMIC, respectively, is outstanding, (ii) result in a tax on prohibited
transactions within the meaning of Section 860F(a)(2) of the Code or (iii)
constitute a contribution after the startup day subject to tax under Section
860G(d) of the Code. The Servicer shall attempt to obtain such Opinion of
Counsel. In the case of a repurchase or deposit pursuant to Section 3.06(a), the
Responsible Party shall, notwithstanding the absence of such opinion as to the
imposition of any tax as the result of such purchase or deposit, repurchase such
Asset or make such deposit and shall guarantee the payment of such tax by paying
to the Trustee the amount of such tax not later than five Business Days before
such tax shall be due and payable to the extent that amounts previously paid
over to and then held by the Trustee pursuant to Section 6.06 hereof are
insufficient to pay such tax and all other taxes chargeable under Section 6.06.
Pursuant to Section 6.06, the Trustee is hereby directed to withhold, and shall
withhold, an amount sufficient to pay such tax and any other taxes imposed on
"prohibited transactions" under Section 860F(a)(1) of the Code or imposed on
"contributions after start up date" under Section 860G(d) of the Code from
amounts otherwise distributable to Class R Certificateholders. The Servicer
shall give notice to the Trustee at the time of such repurchase of the amounts
due from the Responsible Party pursuant to the guarantee of the Responsible
Party described above and notice as to who should receive such payment.
The Trustee shall have no obligation to pay any such amounts pursuant to
this Section other than from moneys provided to it by the Responsible Party or
from moneys held in the funds and accounts created under this Agreement. The
Trustee shall be deemed conclusively to have complied with this Section if it
follows the directions of the Responsible Party.
In the event any tax that is guaranteed by the Responsible Party pursuant
to this Section 3.07 is refunded to the Trust or otherwise is determined not to
be payable, the
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Responsible Party shall be repaid the amount of such refund or that portion of
any guarantee payment made by the Responsible Party that is not applied to the
payment of such tax.
ARTICLE IV
PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS
SECTION 4.01. Custody of Assets.
(a) The Custodian on behalf of the Trustee shall maintain custody of the
Asset Files for the benefit of the Certificateholders. In the event that the
Trustee is no longer acting as Custodian of the Asset Files, upon execution and
delivery of an agreement between the Trustee and the Person assuming the duties
of the Trustee hereunder as Custodian with respect to the Asset Files, the
replacement Custodian shall concurrently execute an acknowledgment of receipt of
the Asset Files substantially in the form of Exhibit H hereto.
(b) The Custodian on behalf of the Trustee agrees to maintain the
related Asset Files at its office where they are currently maintained, or at
such other offices of the Custodian in the State of [_____________] as shall
from time to time be identified to the Trustee by written notice. The Custodian
may temporarily move individual Asset Files or any portion thereof without
notice as necessary to conduct collection and other servicing activities in
accordance with its customary practices and procedures.
(c) As Custodian, the Trustee shall have and perform the following
powers and duties:
(i) hold the Asset Files on behalf of the Certificateholders,
maintain accurate records pertaining to each Asset to enable
it to comply with the terms and conditions of this Agreement,
maintain a current inventory thereof and conduct annual
physical inspections of Asset Files held by it under this
Agreement;
(ii) implement policies and procedures, in writing and signed by an
Officer of the Custodian on behalf of the Trustee, with
respect to persons authorized to have access to the Asset
Files on the Custodian's premises and the receipting for Asset
Files taken from their storage area by an employee of the
Custodian for purposes of servicing or any other purposes; and
(iii) attend to all details in connection with maintaining custody
of the Asset Files on behalf of the Certificateholders.
(d) In performing its duties under this Section, the Custodian on behalf
of the Trustee agrees to act with reasonable care, using that degree of skill
and care that it exercises with respect to similar Assets or files for which it
performs custodial duties. In acting as Custodian of the Asset Files, the
Trustee agrees further not to assert any beneficial ownership interests in the
Assets or the Asset Files.
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(e) If any Mortgage or an Assignment of a Mortgage to the Trustee or any
prior Assignment is in the process of being recorded on the Closing Date, the
Seller shall cause each such original recorded document or certified copy
thereof, to be delivered to the Trustee or its Custodian promptly following its
recordation. The Seller shall also cause to be delivered to the Trustee any
other original Mortgage Loan Document to be included in the Trustee Mortgage
Loan File if a copy thereof initially was delivered.
(f) For administrative convenience and facilitation of servicing and to
reduce closing costs, the Assignments of Mortgage for each Land-and-Home
Contract shall not be required to be submitted for recording; provided, however,
that each Assignment of Mortgage for each Land-and-Home Contract shall be
submitted for recording by the Seller, at its expense and at the direction of
the Servicer, in the name of the Trustee, at no expense to the Issuer or the
Trustee, upon the occurrence of a bankruptcy or insolvency proceeding instituted
by the Servicer, or the continuance of such a proceeding against the Servicer
instituted by another party, unstayed, for 60 days. Upon receipt of written
notice that recording of the Assignments of Mortgage is required pursuant to the
condition set forth in the preceding sentence, the Seller shall be required to
deliver such Assignments of Mortgage within 60 days following receipt of such
notice.
The Seller promptly shall (within 60 Business Days following the date it
becomes required to submit Assignments of Mortgage for each Land-and-Home
Contract for recording pursuant to this Section 4.01(f)) submit or cause to be
submitted for recording, at no expense to the Purchaser (or the Trust Estate or
the Trustee), in the appropriate public office for real property records, each
Assignment of Mortgage for each Land-and-Home Contract and shall execute each
original Assignment of Mortgage in the following form: "[_________________], as
Trustee under the applicable agreement." In the event that any such Assignment
of Mortgage is lost or returned unrecorded because of a defect therein, the
Seller promptly shall prepare a substitute Assignment of Mortgage or cure such
defect, as the case may be, and thereafter cause each such Assignment of
Mortgage to be duly recorded.
(g) In lieu of recording an Assignment of any Mortgage for any Mortgage
Loan, the Seller may deliver or cause to be delivered to the Trustee the
Assignment of the Mortgage from the Seller to the Trustee in a form suitable for
recordation, together with an Opinion of Counsel to the effect that recording is
not required to protect the Trustee's right, title and interest in and to the
related Mortgage Loan or, in case a court should recharacterize the sale of the
Mortgage Loans as a financing, to perfect a first priority security interest in
favor of the Trustee in the related Mortgage Loan. In the event that the
Servicer receives notice that recording is required to protect the right, title
and interest of the Trustee in and to any such Mortgage Loan for which
recordation of an Assignment has not previously been required, the Servicer
shall promptly notify the Trustee and the Trustee shall within five Business
Days of its receipt of such notice deliver, or cause to be delivered, each
previously unrecorded Assignment to the Servicer for recordation.
(h) [The Servicer shall maintain custody of the Servicer Mortgage Loan
Files for the benefit of the Trustee on behalf of the Certificateholders.] [The
Servicer shall maintain custody of the Contract Files for the benefit of the
Certificateholders. The Servicer, by its execution of the Pooling and Servicing
Agreement, agrees to, and shall, retain possession of the Contract File
pertaining to each of the Contracts on behalf of the Certificateholders and the
Trustee. Without
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limiting the foregoing, the Trustee acknowledges that, with respect to each
Contract secured by a Manufactured Home located in Virginia as to which the
Trustee is identified as first lienor on the related certificate of title, for
purposes of Section 46.2-641 of the Virginia Code (as currently in effect), the
Servicer is holding such Contract and the related certificate of title as the
bailee and agent for the Trustee as such first lienor.]
SECTION 4.02. Filings.
Within 7 days following the Closing Date, the Seller shall cause the UCC1
financing statement referred to in Section 2.02(8) to be filed. The initial
Servicer shall cause to be filed all necessary continuation statements of the
UCC1 financing statement to be filed by the Depositor with the Depositor as
Debtor and the Trustee as Secured Party. From time to time the initial Servicer
shall take and cause to be taken such actions and execute such documents as are
necessary to perfect and protect the Certificateholders' interest in the Assets
and their proceeds and the Manufactured Homes and Mortgaged Property against all
other persons, including, without limitation, the filing of financing
statements, amendments thereto and continuation statements, the execution of
transfer instruments and the making of notations on or taking possession of all
records or documents of title. The initial Servicer will maintain the Trustee's
first priority perfected security interest in each Manufactured Home and a first
lien on each Mortgaged Property so long as the related Asset is property of the
Trust.
SECTION 4.03. Name Change or Relocation.
(a) During the term of this Agreement, the Seller shall not change its
name, identity or structure or relocate its chief executive office or its place
of formation without first giving notice thereof to the Trustee and the
Servicer. In addition, following any such change in the name, identity,
structure or location of the chief executive office or its place of
incorporation of the Seller, the Seller shall give written notice of any such
change to Fitch and Xxxxx'x.
(b) If any change in the Seller's name, identity or structure or the
relocation of its chief executive office or its place of formation would make
any financing or continuation statement or notice of lien filed under this
Agreement seriously misleading within the meaning of applicable provisions of
the UCC or any title statute or would cause any such financing or continuation
statement or notice of lien to become unperfected (whether immediately or with
lapse of time), the Seller, no later than five days after the effective date of
such change, shall file, or cause to be filed, such amendments or financing
statements as may be required to preserve, perfect and protect the
Certificateholders' interest in the Assets and proceeds thereof and in the
Manufactured Homes and Mortgaged Property.
SECTION 4.04. Chief Executive Office and Place of Formation.
During the term of this Agreement, the Seller will maintain its chief
executive office and its place of formation in one of the States of the United
States.
SECTION 4.05. Costs and Expenses.
The initial Servicer agrees to pay all reasonable costs and disbursements
in connection with the perfection and the maintenance of perfection, as against
all third parties, of the
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Certificateholders' right, title and interest in and to the Assets (including,
without limitation, the security interests in the Manufactured Homes and
Mortgaged Property granted thereby).
ARTICLE V
SERVICING OF ASSETS
SECTION 5.01. Responsibility for Asset Administration.
The Servicer will have the sole obligation to manage, administer, service
and make collections on the Assets and perform or cause to be performed all
contractual and customary undertakings of the holder of the Assets to the
Obligor. At the written request of the Servicer, accompanied by the form of
power of attorney or other documents being requested, the Trustee shall furnish
to the Servicer any powers of attorney and other documents necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties hereunder, and the Trustee shall not be held responsible for any acts by
the Servicer in its uses of any such powers of attorney or other document. The
Servicer shall indemnify the Trustee for any reasonable costs, liabilities and
expenses (including reasonable attorneys' fees) incurred by the Trustee in
connection with the intentional or negligent misuse of such power of attorney by
the Servicer, as applicable. Notwithstanding anything contained herein to the
contrary, the Servicer shall not without the Trustee's written consent (i)
initiate any action, suit or proceeding solely under the Trustee's name without
indicating the Servicer's representative capacity or (ii) knowingly cause the
Trustee to be registered to do business in any state, provided, however, that
the preceding clause (i) shall not apply to the initiation of actions relating
to Assets that the Servicer is servicing pursuant to its respective duties
herein. The limitations of the preceding clause shall not be construed to limit
any duty or obligation imposed on the Trustee under any other provision of this
Agreement. Origen Servicing, Inc. is hereby appointed the Servicer until such
time as any Service Transfer shall be effected under Article VII.
SECTION 5.02. Standard of Care.
In managing, administering, servicing and making collections on the Assets
pursuant to this Agreement, the Servicer will exercise that degree of skill and
care consistent with the highest degree of skill and care that the Servicer
exercises with respect to similar Assets serviced by the Servicer; provided,
however, that (i) such degree of skill and care shall be at least as favorable
as the degree of skill and care generally applied by servicers of manufactured
housing installment sales contracts for institutional investors and (ii)
notwithstanding the foregoing, the Servicer shall not release or waive the right
to collect the unpaid balance on any Asset unless it makes the determination
that acceptance of the Liquidation Proceeds from the related Obligor would
result in the Trust receiving a greater amount of collections that the Net
Liquidation Proceeds that would result from repossessing and liquidating the
related Manufactured Home or from foreclosure upon the related Mortgaged
Property.
SECTION 5.03. Records.
The Servicer shall, during the period it is servicer hereunder, maintain
such books of account and other records as will enable the Trustee to determine
the status of each Asset.
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SECTION 5.04. Inspection; Electronic File.
(a) At all times during the term hereof, the Servicer shall afford the
Trustee and its authorized agents reasonable access during normal business hours
to the Servicer's records, which have not previously been provided to the Trust,
relating to the Assets and will cause its personnel to assist in any examination
of such records by the Trustee or its authorized agents. The examination
referred to in this Section will be conducted in a manner which does not
unreasonably interfere with the Servicer's normal operations or customer or
employee relations. Without otherwise limiting the scope of the examination the
Trustee may make, the Trustee may, using generally accepted audit procedures,
verify the status of each Asset and review the Electronic Ledger and records
relating thereto for conformity to Monthly Reports prepared pursuant to Article
VI and compliance with the standards represented to exist as to each Asset in
this Agreement.
(b) At all times during the term hereof, the Servicer shall keep
available a copy of the Asset Schedule at its principal executive office for
inspection by Certificateholders.
(c) On or before the fourth Business Day prior to each Distribution
Date, the Servicer will determine the amount available to be remitted to the
Distribution Account for the applicable Distribution Date and will provide to
the Trustee and the Backup Servicer an electronic file (the "Electronic File")
setting forth such amount and any other information necessary for the Trustee to
perform the calculations required hereunder and prepare the Monthly Report. The
Trustee will be entitled to rely on information supplied by the Servicer without
independent verification.
SECTION 5.05. Collection Account.
(a) On or before the Closing Date, the Servicer shall establish the
Collection Account on behalf of the Trust, which must be an Eligible Account and
notify the Trustee and the Backup Servicer of the location of the Collection
Account. The Collection Account shall be entitled "Origen Servicing, Inc., for
the benefit of [_____________________________________] as Trustee for the
benefit of holders of [Origen [______] Residential Pass-Through Certificates,
Series 200[_] - [__]]. The Servicer shall pay into the Collection Account as
promptly as practicable (not later than the second Business Day) following
receipt thereof:
(i) all payments received after the Cut-Off Date on account of
principal on the Assets and all Principal Prepayments
collected after the Cut-Off Date;
(ii) all payments received or advanced after the Cut-Off Date on
account of interest on the Assets;
(iii) all Net Liquidation Proceeds;
(iv) all Insurance Proceeds unless to be used to directly offset
the cost of repairing the related property;
(v) any amounts payable in connection with the repurchase of any
Asset pursuant to Section 3.06; and
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(vi) any other amount required to be deposited in the Collection
Account pursuant to this Agreement;
provided, however, that with respect to each Due Period, the Servicer
shall be permitted to retain the Monthly Servicing Fee for such Due Period from
payments in respect of interest on the Assets in accordance with Section 8.02
hereof. The foregoing requirements respecting deposits to the Collection Account
are exclusive, it being understood that, without limiting the generality of the
foregoing, the Servicer need not deposit in the Collection Account amounts
representing late payment fees, assumption fees, extension fees or escrow
deposits payable by Obligors, which amounts shall be property of the Servicer.
All amounts paid into the Collection Account under this Agreement shall be held
in trust for the Trustee and the Certificateholders until payment or withdrawal
of any such amounts is authorized under this Agreement.
If the Servicer so directs, the institution maintaining the Collection
Account shall, in the name of the Trustee in its capacity as such, invest the
amounts in the Collection Account in Eligible Investments that mature not later
than one Business Day prior to the next succeeding Distribution Date. All income
and gain from such investments shall be payable to the Servicer. An amount equal
to any net loss on such investments shall be deposited in the Collection Account
by the Servicer out of its own funds immediately as realized [provided that if
the Backup Servicer succeeds to the servicing rights and responsibilities, it
shall have no obligation or responsibility for any losses occasioned by or
arising from the prior Servicer's investments.] The Trustee shall in no way be
liable for losses on amounts invested in accordance with the provisions hereof.
Funds in the Collection Account not so invested must be insured to the extent
permitted by law by the Federal Deposit Insurance Corporation.
(b) If at any time the Servicer receives notice (from a Rating Agency or
the Trustee or otherwise) that the Collection Account has ceased to be an
Eligible Account, the Servicer must, as soon as practicable but in no event
later than 5 Business Days of the Servicer's receipt of such notice, transfer
the Collection Account and all funds and Eligible Investments therein to an
Eligible Account. Following any such transfer, the Servicer must notify each
Rating Agency and the Trustee of the location of the Collection Account.
SECTION 5.06. Enforcement.
(a) The Servicer shall, consistent with customary servicing procedures
and the terms of this Agreement, act with respect to the Assets in such manner
as, in the Servicer's reasonable judgment, will maximize the receipt of
principal and interest on such Assets and Liquidation Proceeds with respect to
Liquidated Assets.
(b) The Servicer may xxx to enforce, initiate a replevin action, or
collect upon Assets, in its own name, if possible, or as agent for the Trust.
(c) The Servicer shall exercise any rights of recourse against third
persons that exist with respect to any Asset in accordance with the Servicer's
usual practice. In exercising recourse rights, the Servicer is authorized on the
Trustee's behalf to reassign the Asset or to resell the related Manufactured
Home or Mortgaged Property to the person against whom recourse exists at the
price set forth in the document creating the recourse.
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(d) The Servicer may grant to the Obligor on any Asset any rebate,
refund or adjustment out of the Collection Account that the Servicer in good
faith believes is required because of prepayment in full of the Asset. The
Servicer will not permit any rescission or cancellation of any Asset, except as
required by applicable law or regulation or upon the order of any court or other
governmental authority asserting jurisdiction in a suit, claim or complaint
involving the Asset.
(e) The Servicer may, consistent with its customary servicing procedures
and consistent with Section 5.02, grant to the Obligor on any Asset an extension
of payments due under such Asset; provided, that Obligors may not be solicited
for extensions, no such extension may extend beyond the final scheduled payment
date of the Asset with the latest maturity, as specified in Section 3.04(2)(c),
and no more than three one-month extensions for any one Asset of payments under
an Asset may be granted in any twelve-month period. Notwithstanding the
foregoing, in connection with an Asset that is in default or for which default
is imminent, the Servicer may, consistent with the servicing standard described
in Section 5.01, waive, modify or vary any term of that Asset (including
modifications that change the Asset Rate, forgive the payment of principal or
interest or extend the final maturity date of that Asset), accept payment from
the related Obligor of an amount less than the Principal Balance in final
satisfaction of that Asset, or consent to the postponement of strict compliance
with any such term or otherwise grant the indulgence to any Obligor if in the
Servicer's determination such waiver, modification, postponement or indulgence
is not materially adverse to the interests of the Certificateholders (taking
into account any estimated loss that might result absent such action). However,
the Servicer cannot extend the maturity of any Asset past the date on which the
final payment is due on the latest maturing Asset as of the related Cut-off
Date. In the event of any such arrangement, the Servicer shall make Advances on
the related Asset in accordance with Section 8.04 during the scheduled period in
accordance with the amortization schedule of the Asset without modification
thereof because of the arrangements.
(f) The Servicer may enforce any due-on-sale clause in an Asset if such
enforcement is called for under its then current servicing policies for
obligations similar to the Assets; provided, that such enforcement is permitted
by applicable law and will not adversely affect any applicable insurance policy.
If an assumption of an Asset is permitted by the Servicer upon conveyance of the
related Manufactured Home, the Servicer shall use its best efforts to obtain an
assumption agreement in connection therewith and add such assumption agreement
to the related Mortgage Loan File, Contract File or Land-and-Home Contract File.
(g) Any provision of this Agreement to the contrary notwithstanding, the
Servicer shall not agree to the modification or waiver of any provision of an
Asset if such modification or waiver would be treated as a taxable exchange
under the REMIC Provisions.
SECTION 5.07. Trustee to Cooperate.
(a) Upon payment in full on any Asset, the Servicer will notify the
Trustee and the Seller on the next succeeding Distribution Date by certification
of a Servicing Officer (which certification shall include a statement to the
effect that all amounts received in connection with such payments which are
required to be deposited in the Collection Account pursuant to Section 5.05 have
been so deposited). The Servicer is authorized to execute an instrument in
satisfaction
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of such Asset and to do such other acts and execute such other documents as the
Servicer deems necessary to discharge the Obligor thereunder and eliminate the
lien on the related real estate and collateral. The Servicer shall determine
when an Asset has been paid in full; to the extent that insufficient payments
are received on an Asset credited by the Servicer as prepaid or paid in full and
satisfied, the shortfall shall be paid by the Servicer out of its own funds;
provided, that the Servicer may reimburse itself for such shortfall payment from
the Collection Account if the Servicer corrects the error and receives amounts
in respect of such shortfall payment from future collections with respect to
such Asset.
(b) From time to time as appropriate for servicing and foreclosure in
connection with any Land-and-Home Contract, the Trustee shall, upon written
request of a Servicing Officer and delivery to the Trustee of a receipt signed
by such Servicing Officer, at the expense of the Servicer, cause the original
Land-and-Home Contract and the related Land-and-Home Contract File to be
released to the Servicer and shall execute such documents as the Servicer shall
deem necessary to the prosecution of any such proceedings. The Trustee shall
stamp the face of each such Land-and-Home Contract to be released to the
Servicer with a notation that the Land-and-Home Contract has been assigned to
the Trustee. Upon request of a Servicing Officer, the Trustee shall perform such
other acts as reasonably requested by the Servicer and otherwise cooperate with
the Servicer in enforcement of the Certificateholders' rights and remedies with
respect to Assets. The Trustee shall not be liable for the performance of any
such acts at the request of the Servicer.
(c) The Servicer's receipt of a Land-and-Home Contract and/or
Land-and-Home Contract File shall obligate the Servicer to return the original
Land-and-Home Contract and the related Land-and-Home Contract File to the
Trustee when its need by the Servicer has ceased unless the Asset shall be
liquidated or repurchased or replaced as described in Section 3.06.
SECTION 5.08. Costs and Expenses.
All costs and expenses incurred by the Servicer in carrying out its duties
hereunder, including all fees and expenses incurred in connection with the
enforcement of Assets (including enforcement of defaulted Assets and
repossessions of Manufactured Homes or Mortgaged Property securing such Assets)
shall be paid by the Servicer and the Servicer shall not be entitled to
reimbursement hereunder, except to the extent specifically provided herein.
Furthermore, the Servicer shall be reimbursed out of the Liquidation Proceeds of
a Liquidated Asset for Liquidation Expenses incurred by it. The Servicer shall
not incur such Liquidation Expenses unless it determines in its good faith
business judgment that incurring such expenses will increase the Net Liquidation
Proceeds on the related Asset.
SECTION 5.09. Maintenance of Insurance.
(a) Except as otherwise provided in subsection (b) of this Section 5.09,
the Servicer shall cause to be maintained with respect to each Asset one or more
Hazard Insurance Policies which provide, at a minimum, the same coverage as a
standard form fire and extended coverage insurance policy that is customary for
manufactured housing or residential real property, as applicable, issued by a
company authorized to issue such policies in the state in which the related
Manufactured Home or Mortgaged Property is located and in an amount which is not
less than
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the maximum insurable value of such Manufactured Home or Mortgaged Property or
the principal balance due from the Obligor on the related Asset, whichever is
less; provided, however, that the amount of coverage provided by each Hazard
Insurance Policy shall be sufficient to avoid the application of any
co-insurance clause contained therein; and provided, further, that such Hazard
Insurance Policies may provide for customary deductible amounts. With respect to
any Asset, the Seller shall obtain (i) a statement from the Obligor's insurance
agent that the Manufactured Home or Mortgaged Property was, at the time of
origination of the Contract or the Mortgage Loan, not in a federally designated
special flood hazard area, or (ii) evidence that, at the time of origination,
flood insurance was in effect, which coverage was at least equal to the minimum
amount specified in the preceding sentence or such lesser amount as may be
available under the federal flood insurance program. Each Hazard Insurance
Policy caused to be maintained by the Servicer shall contain a standard loss
payee clause in favor of the Servicer and its successors and assigns. If any
Obligor is in default in the payment of premiums on its Hazard Insurance Policy
or Policies, the Servicer shall force place coverage and pay such premiums out
of its own funds and may separately add such premium to the Obligor's obligation
as provided by the Asset, but shall not add such premium to the remaining
principal balance of the Contract. If the Obligor does not reimburse the
Servicer for payment of such premiums and the related Contract or Mortgage Loan
is liquidated after a default, the Servicer shall be reimbursed for its payment
of such premiums out of the related Liquidation Proceeds, and if such advance
for insurance premiums is deemed by the Servicer to be nonrecoverable in its
reasonable opinion, the Servicer may reimburse itself from the Collection
Account for such Nonrecoverable Advance.
(b) The Servicer may, in lieu of causing individual Hazard Insurance
Policies to be maintained with respect to each Manufactured Home or Mortgaged
Property pursuant to subsection (a) of this Section 5.09, and shall, to the
extent that the related Contract does not require the Obligor to maintain a
Hazard Insurance Policy with respect to the related Manufactured Home, maintain
one or more blanket insurance policies covering losses on the Obligor's interest
in the Contracts or Mortgage Loans resulting from the absence or insufficiency
of individual Hazard Insurance Policies. Any such blanket policy shall be
substantially in the form and in the amount carried by the Servicer as of the
date of this Agreement. The Servicer shall pay the premium for such policy on
the basis described therein and shall deposit into the Collection Account from
its own funds any deductible amount with respect to claims under such blanket
insurance policy relating to the Contracts or the Mortgage Loans. The Servicer
shall not, however, be required to deposit any deductible amount with respect to
claims under individual Hazard Insurance Policies maintained pursuant to
subsection (a) of this Section. If the insurer under such blanket insurance
policy shall cease to be acceptable to the Servicer, the Servicer shall exercise
its best reasonable efforts to obtain from another insurer a replacement policy
comparable to such policy.
(c) With respect to each Manufactured Home that has been repossessed in
connection with a defaulted Contract, the Servicer shall either (i) maintain one
or more Hazard Insurance Policies thereon or (ii) self-insure such Manufactured
Homes and deposit into the Collection Account from its own funds any losses
caused by damage to such Manufactured Home that would have been covered by a
Hazard Insurance Policy.
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(d) The Servicer shall keep in force throughout the term of this
Agreement (i) a policy or policies of insurance covering errors and omissions
for failure to maintain insurance as required by this Agreement and (ii) a
fidelity bond. Such policy or policies and such fidelity bond shall be in such
form and amount as is generally customary among Persons which service a
portfolio of manufactured housing installment sales Assets and installment loan
agreements having an aggregate principal amount of $100,000,000 or more and
which are generally regarded as servicers acceptable to institutional investors.
(e) [The Servicer must maintain a Primary Mortgage Insurance Policy in
full force and effect on each Mortgage Loan, if any, which is identified in the
related Transfer Agreement as being covered by a Primary Mortgage Insurance
Policy. Any such Primary Mortgage Insurance Policy must insure the portion of
the Unpaid Principal Balance of the related Mortgage Loan that exceeds 75% of
the value of the related Mortgaged Property (as set forth in the appraisal
obtained in connection with origination of the Mortgage Loan) (the Mortgaged
Property's "Initial Value") unless such Primary Mortgage Insurance coverage has
been waived in writing by the Depositor at the time it purchases the Mortgage
Loan or such Primary Mortgage Insurance is canceled under the circumstances
described below. If a covered Mortgage Loan provides for negative amortization
or the potential for negative amortization, the Primary Mortgage Insurance
Policy must also insure any increase in the Unpaid Principal Balance of the
Mortgage Loan from the original principal balance of the related Mortgage Note.
In the event that the rating assigned by any Rating Agency for any of the
Certificates to the claims-paying ability of any related Mortgage Insurer is
reduced subsequent to the issuance of the Certificates, the Servicer will use
its best efforts to replace each Primary Mortgage Insurance Policy issued by the
downgraded Mortgage Insurer with a new Primary Mortgage Insurance Policy issued
by an insurer whose claims-paying ability is acceptable to the Depositor. The
premium for any replacement policy shall not exceed the premium for any replaced
policy.
The Servicer may cancel the Primary Mortgage Insurance Policy maintained
with respect to any Mortgage Loan at the related Mortgagor's request if the
following conditions are met:
(1) The current Mortgage Loan-to-Value Ratio of the mortgage
Loan must be 80% or less. The current Mortgage Loan-to-Value Ratio
must be calculated by dividing the Unpaid Principal Balance of the
Mortgage Loan by the Initial Value of the related Mortgaged
Property;
(2) The Mortgage Loan may not have been 30 days or more
delinquent at any time within the preceding twelve months; and
(3) There may not have been any other default under the
terms of the Mortgage Loan at any time during the preceding twelve
months; provided, however, that the Servicer shall cancel or release
any Primary Mortgage Insurance Policy maintained with respect to any
Mortgage Loan to the extent required under applicable law.]
(f) [The Servicer must take all steps necessary to ensure the payment by
each Mortgage Insurer of the maximum benefits available under the terms of the
related Primary Mortgage Insurance Policy. The Servicer must work diligently
with the Mortgage Insurer to
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determine whether such insurer will settle a claim under a Primary Mortgage
Insurance Policy by taking title to the related Mortgaged Property or in some
other manner. Upon receipt of any proceeds of a Primary Mortgage Insurance
Policy, the Servicer must deposit such proceeds into the Collection Account in
accordance with Section 5.05.]
SECTION 5.10. Repossession.
Notwithstanding the standard of care specified in Section 5.02, the
Servicer shall commence procedures for the repossession of, the foreclosure upon
or other comparable conversion of the ownership of any Manufactured Home or
Mortgaged Property or take such other steps that in the Servicer's reasonable
judgment will maximize the receipt of principal and interest or Net Liquidation
Proceeds with respect to the Asset secured by such Manufactured Home or
Mortgaged Property (which may include retitling or filing a recorded assignment
of the Mortgage) subject to the requirements of the applicable state and federal
law, promptly after the time when such Asset becomes a Defaulted Contract or
defaulted Mortgage Loan and may do so sooner; provided, that if the Servicer has
actual knowledge that a Mortgaged Property is affected by hazardous waste, then
the Servicer shall not cause the Trustee to acquire title to such Mortgaged
Property in a repossession, foreclosure or similar proceeding. For purposes of
the proviso in the preceding sentence, the Servicer shall not be deemed to have
actual knowledge that the site on which the Manufactured Home is situated or a
Mortgage Property is affected by hazardous waste unless it shall have received
written notice that hazardous waste is present on such property. In connection
with such foreclosure or other conversion, the Servicer shall follow such
practices and procedures as it shall deem necessary or advisable and as shall be
consistent with Section 5.02. In the event that title to any Mortgaged Property
is acquired in foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be issued to the Trustee, as Trustee, or, at its
election, to its nominee on behalf of the Trustee, as Trustee.
The Servicer shall not complete, or allow to be completed, a repossession
or foreclosure with respect to any Ineligible Foreclosure Property Asset if it
would cause the Trust to hold such repossessed property from Ineligible
Foreclosure Property Assets with an aggregate value in excess of 0.75% of the
aggregate outstanding balance of the Assets as of the end of the prior Due
Period unless the Trustee has been supplied with an Opinion of Counsel, at the
expense of the Trust, to the effect that if the related property is acquired by
the Trust, such property will qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code. If the value of properties from
Ineligible Foreclosure Property Assets equals or exceeds 1% of the outstanding
principal balance of the Assets as of the end of the prior Due Period, the
initial Servicer shall purchase at the Purchase Price on or prior to the
Distribution Date for such Due Period sufficient property from Ineligible
Foreclosure Property Assets to cause the Trust Fund to hold property from
Ineligible Foreclosure Property Assets with a value of less than 1% of the
outstanding principal balance of the Assets and such proceeds shall be treated
as received during the Due Period. For purposes of this paragraph the value of
property from an Ineligible Foreclosure Property Asset shall be treated as equal
to the principal balance of the related Ineligible Foreclosure Property Asset
plus interest that had accrued on such Asset as of the date of acquisition of
the property by the Trust Fund.
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SECTION 5.11. Title, Conservation, and Disposition of Repo Property and
REO Property.
(a) The Servicer shall maintain, protect, and insure any Repo Property
or REO Property acquired pursuant to Sections 5.06 or 5.10 hereof, on behalf of
the Trust, in accordance with standard industry practice solely for the purpose
of its prompt disposition and sale and with a view toward maximizing the amount
of principal and interest recovered on the Assets. During any period in which
the Trust holds a Repo Property or REO Property, the Servicer shall not (1)
lease the Repo Property or REO Property, (2) authorize or permit any
construction on the Repo Property or REO Property, other than the completion of
a building or improvement thereon, and then only if more than 10% of the
construction of such building or other improvement was completed before default
on the related Asset became imminent, all within the meaning of section
856(e)(4)(B) of the Code, or (3) allow the Repo Property or REO Property to be
used in any trade or business conducted by the Trust. If one or more REMIC
elections are made with respect to the assets of the Trust, the Servicer shall
use its best efforts to dispose of such Repo Property or REO Property for its
fair market value by the end of the tenth month of the third calendar year
following the end of the calendar year in which the Repo Property or REO
Property was acquired by the Trust (the "REO Holding Period"), pursuant to the
Servicer's ordinary commercial practices. If the Servicer is unable to sell such
Repo Property or REO Property in the course of its ordinary commercial practices
within the REO Holding Period, the Servicer shall (a) purchase such Repo
Property or REO Property at a price equal to such Repo Property's or REO
Property's fair market value or (b) auction such Repo Property or REO Property
to the highest bidder in an auction reasonably designed to produce a fair price
(an "Auction") that takes place within one month after the end of the REO
Holding Period. If the Servicer and the Trustee either (1) receive an Opinion of
Counsel indicating that, under then-current law, the REMIC may hold Repo
Property or REO Property associated with a REMIC Asset for a period longer than
the REO Holding Period without threatening the REMIC status of any related REMIC
or causing the imposition of a tax upon any such REMIC or (2) the Servicer
applies for and is granted an extension of the REO Holding Period pursuant to
Code sections 860G(a)(8) and 856(e)(3) (the applicable period provided pursuant
to such Opinion of Counsel or such Code section being referred to herein as an
"Extended Holding Period"), upon the direction of the Depositor or the Trustee,
the Servicer shall continue to attempt to sell such Repo Property or REO
Property pursuant to its ordinary commercial practices until the date two months
prior to the expiration of the Extended Holding Period. If no REMIC election has
been made or is to be made with respect to the assets of the Trust, the REO
Holding Period for disposing of any Repo Property or REO Property as described
in the preceding two sentences shall be an eleven-month period. The Servicer
shall either sell any Repo Property or REO Property remaining after such date in
an Auction or purchase such Repo Property or REO Property (at the price set
forth in this paragraph) before the end of the Extended Holding Period. In the
event of any such sale of a Repo Property or REO Property, the Trustee shall, at
the written request of the Servicer and upon being supplied with appropriate
forms therefor, within five Business Days after its receipt of the proceeds of
such sale or auction, instruct the Servicer to release to the purchaser the
related Contract File, Land-and-Home Contract File and Servicer Contract File
(in the case of a Repo Property), and the Trustee shall release to the purchaser
the related Trustee Mortgage Loan File and shall instruct the Servicer to
release to the purchaser the related Servicer Mortgage Loan File (in the case of
a Mortgage Loan), and in any event the Trustee shall execute and deliver such
instruments of transfer or assignment, in each case
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without recourse, as shall be necessary to vest in the auction purchaser title
to the Repo Property or REO Property, and shall deliver to such purchaser any
Asset Documents relating to such Asset that are in the Trustee's possession,
whereupon the Trustee shall have no further responsibility with regard to any
related Asset File or Servicer File. Neither the Trustee nor the Servicer,
acting on behalf of the Trust, shall provide financing from such Trust to any
purchaser of a Repo Property or REO Property.
(b) In the event that title to any Mortgaged Property or REO Property is
acquired, the deed or certificate of sale shall be issued to the Trustee for the
benefit of the Certificateholders. The Servicer shall, in accordance with
Section 5.11(a), use its reasonable efforts to sell any Repo Property or REO
Property as expeditiously as possible, but in all events within the time period,
and subject to the conditions set forth in Section 5.11(a) hereof. Pursuant to
its efforts to sell such Repo Property or REO Property, the Servicer shall
either itself or through an agent selected by the Servicer protect and conserve
such Repo Property or REO Property in the same manner and to such extent as it
customarily does in connection with its own repossessed manufactured homes or
mortgaged properties (as applicable), incident to its conservation and
protection of the interests of the Certificateholders.
(c) The Servicer shall deposit all net funds collected and received in
connection with the operation of any Repo Property or REO Property in the
Collection Account no later than the second Business Day following receipt of
such funds.
(d) The Servicer, upon the final disposition of any Repo Property or REO
Property, shall be entitled to reimbursement of any related unreimbursed
Advances related to the Asset for such Repo Property or REO Property as well as
any unpaid Servicing Fees from Liquidation Proceeds received in connection with
the final disposition of such Repo Property or REO Property, the latter in
accordance with the Sections 8.02 and 8.03 of this Agreement.
(e) The final disposition of any Repo Property or REO Property shall be
carried out by the Servicer at the Repo Property's or REO Property's fair market
value under the circumstances existing at the time of disposition and upon such
terms and conditions as the Servicer shall deem necessary or advisable, and as
are in accordance with accepted servicing practices and in accordance with
Section 5.11(a) above.
(f) The Liquidation Proceeds from the final disposition of any Repo
Property or REO Property shall be deposited into the Collection Account promptly
following receipt of such Liquidation Proceeds and, subject to such withdrawals
as may be permitted by Section 8.02 hereof, shall be transferred to the
Distribution Account pursuant to Section 8.02 hereof.
(g) The Servicer shall prepare and file reports of foreclosure and
abandonment in accordance with section 6050J of the Code.
(h) Notwithstanding any other provision of this Agreement, the Servicer,
acting on behalf of the Trustee hereunder, shall not rent, lease, or otherwise
earn income or take any action on behalf of the Trust with respect to any REO
Property that might (i) cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of section 860G(a)(8) of the Code or
(ii) result in the receipt by any related REMIC of any "income from
non-permitted assets"
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within the meaning of section 860F(a)(2) of the Code or any "net income from
foreclosure property" within the meaning of section 860G(c)(2) of the Code, both
of which types of income are subject to tax under the REMIC Provisions, unless
the Trustee has received an Opinion of Counsel at the Trust's expense (the costs
of which shall be recoverable out of the applicable Collection Account), to the
effect that, under the REMIC Provisions and any relevant proposed legislation,
any income generated for any related REMIC by the REO Property would not result
in the imposition of a tax upon such REMIC.
Without limiting the generality of the foregoing, the Servicer shall not:
(1) enter into, renew or extend any New Lease with respect
to any REO Property, if the New Lease by its terms will give rise to
any income that does not constitute Rents from Real Property;
(2) permit any amount to be received or accrued under any
New Lease other than amounts that will constitute Rents from Real
Property;
(3) authorize or permit any construction on any REO
Property, other than the completion of a building or other
improvement thereon, and then only if more than ten percent of the
construction of such building or other improvement was completed
before default on the related Mortgage Loan became imminent, all
within the meaning of section 856(e)(4)(B) of the Code; or
(4) Directly Operate, or allow any other Person (other than
an Independent Contractor) to Directly Operate, any REO Property on
any date more than 90 days after its acquisition date;
unless, in any such case, the Servicer has requested and received the
Opinion of Counsel described in the preceding sentence, in which case the
Servicer may take such actions as are specified in such Opinion of Counsel.
(i) The Servicer shall not acquire any personal property relating to any
Asset (other than the related Manufactured Home in connection with a Contract)
pursuant to this Section 5.11 unless either:
(1) such personal property is incident to real property (or
to the related Manufactured Home, in the case of a Contract) (within
the meaning of section 856(e)(1) of the Code) so acquired by the
Servicer; or
(2) the Servicer shall have requested and received an
Opinion of Counsel, at the expense of the Trust (recoverable out of
the Collection Account), to the effect that the holding of such
personal property by the related REMIC will not cause the imposition
of a tax under the REMIC Provisions on any REMIC related to the
Trust or cause any such REMIC to fail to qualify as a REMIC at any
time that any Certificate is outstanding.
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SECTION 5.12. Retitling; Security Interests.
(a) If, at any time, a Service Transfer has occurred and the new
Servicer is unable to foreclose upon a Manufactured Home because the title
document for such Manufactured Home does not show such Servicer or the Trustee
as the holder of the first priority security interest in the Manufactured Home,
such Servicer shall take all necessary steps to apply for a replacement title
document showing it or the Trustee as the secured party; provided, that the new
Servicer shall be reimbursed by the Trust for all reasonable expenses in
connection with its responsibilities under this Section 5.12.
(b) In order to facilitate the Servicer's actions, as described in
subsection (a) of this section, the Seller will provide the Servicer with any
necessary power of attorney permitting it to retitle the Manufactured Home.
(c) If the Servicer is still unable to retitle the Manufactured Home,
the Seller will take all actions necessary to act with the Servicer to initiate
replevin action upon the Manufactured Home, including, as appropriate, the
filing of any UCC1 or UCC3 financing statements necessary to perfect the
security interest in any Manufactured Home that constitutes a fixture under the
laws of the jurisdiction in which it is located and all actions necessary to
perfect the security interest in any Manufactured Home that is considered or
classified as part of the real estate on which it is located under the laws of
the jurisdiction in which it is located.
SECTION 5.13. Covenants, Representations and Warranties of Servicer.
By its execution and delivery of this Agreement, Origen Servicing, Inc.,
as initial Servicer, makes the following representations, warranties and
covenants on which the Trust relies in accepting the Assets and issuing the
Certificates.
(A) Organization and Good Standing. The Servicer is a corporation duly
organized, validly existing and in good standing under the laws of
the jurisdiction of its organization and has the corporate power to
own its assets and to transact the business in which it is currently
engaged. The Servicer is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which
the character of the business transacted by it or properties owned
or leased by it requires such qualification and in which the failure
so to qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of the
Servicer.
(B) Authorization; Binding Obligations. The Servicer has the power and
authority to make, execute, deliver and perform this Agreement and
all of the transactions contemplated under this Agreement and has
taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement. When executed and
delivered, this Agreement will constitute the legal, valid and
binding obligation of the Servicer enforceable in accordance with
its terms, except as enforcement of such terms may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by the availability of equitable
remedies.
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(C) No Consent Required. The Servicer is not required to obtain the
consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any
governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents, licenses, approvals and
authorizations as have been obtained.
(D) No Violations. The execution, delivery and performance by the
Servicer of this Agreement and the fulfillment of its terms will not
violate any provision of any existing law or regulation or any order
or decree of any court or the related Certificate of Incorporation
or Bylaws of the Servicer, or constitute a material breach of any
mortgage, indenture, contract or other agreement to which the
Servicer is a party or by which the Servicer may be bound.
(E) Litigation. No litigation or administrative proceeding of or before
any court, tribunal or governmental body is currently pending, or to
the knowledge of the Servicer threatened, against the Servicer or
any of its properties or with respect to this Agreement or the
Certificates which, if adversely determined, would in the opinion of
the Servicer have a material adverse effect on the transactions
contemplated by this Agreement.
(F) Chief Executive Office. The chief executive office of the Servicer
is at 00000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxx
00000.
(G) No Default. The Servicer is not in default with respect to any order
or decree of any court or any order, regulation or demand of any
federal, state, municipal or governmental agency, which default
would materially and adversely affect its condition (financial or
other) or operations or its properties or the consequences of which
would materially and adversely affect its performance hereunder. The
Servicer is not in default under any agreement involving financial
obligations or on any outstanding obligation which would materially
adversely impact its financial condition or operations or legal
documents associated with the transaction contemplated by this
Agreement.
(H) No Amendments. The Servicer shall not extend or otherwise amend the
terms of any Asset, except in accordance with Section 5.06.
SECTION 5.14. Payment of Taxes.
If the Servicer becomes aware of the nonpayment by an Obligor of a real or
personal property tax or other tax or charge which may result in a lien upon a
Manufactured Home or Mortgaged Property prior to, or equal to or coordinate
with, the lien of the related Asset, the Servicer, consistent with Section 5.02,
shall take action, including the advancing, but only to the extent that the
Servicer deems, in its sole judgment, such advance recoverable, of such taxes or
charges to avoid the attachment of any such lien. If the Servicer shall have
paid any such real or personal property tax or other tax or charge directly on
behalf of an Obligor, the Servicer may separately add such amount to the
Obligor's obligation as provided by the Asset, but, for the
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purposes of this Agreement, may not add such amount to the remaining principal
balance of the Asset. If the Servicer shall have repossessed a Manufactured Home
or Mortgaged Property on behalf of the Certificateholders and the Trustee, the
Servicer shall advance, but only to the extent that the Servicer, in its sole
judgment, deems such advance recoverable, the amount of any such tax or charge
arising during the time such Manufactured Home is in the Servicer's possession
or title to the Mortgaged Property is in the name of the Servicer (or any Person
acting on behalf of the Servicer), unless the Servicer is contesting in good
faith such tax or charge or the validity of the claimed lien on such
Manufactured Home or Mortgaged Property. If the Obligor does not reimburse the
Servicer for payment of such taxes or charges pursuant to this Section 5.14 and
the related Asset is liquidated after a default, the Servicer shall be
reimbursed for its payment of such taxes or charges out of the related
Liquidation Proceeds. If Liquidation Proceeds are insufficient to reimburse the
Servicer for any such premiums, the amount of such insufficiency shall
constitute, and be reimbursable to the Servicer as, a Nonrecoverable Advance.
SECTION 5.15. Subservicing Arrangements.
The Servicer may arrange for the subservicing of any Asset by a
Subservicer pursuant to a subservicing agreement; provided, however, that such
subservicing arrangement and the terms of the related subservicing agreement
must provide for the servicing of such Assets in a manner consistent with the
servicing arrangements contemplated hereunder. Unless the context otherwise
requires, references in this Agreement to actions taken or to be taken by the
Servicer in servicing the Assets include actions taken or to be taken by a
Subservicer on behalf of the Servicer. Notwithstanding the provisions of any
subservicing agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer and a Subservicer or reference
to actions taken through a Subservicer or otherwise, the Servicer shall remain
obligated and liable to the Depositor, the Trustee, the Seller, the Originator
and the Certificateholders for the servicing and administration of the Assets in
accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such subservicing agreements or
arrangements or by virtue of indemnification from the Subservicer and to the
same extent and under the same terms and conditions as if the Servicer alone
were servicing and administering the Assets. All actions of each Subservicer
performed pursuant to the related subservicing agreement shall be performed as
an agent of the Servicer with the same force and effect as if performed directly
by the Servicer. Origen Servicing, Inc. is hereby deemed an acceptable
Subservicer for purposes of this Agreement.
For purposes of this Agreement, the Servicer shall be deemed to have
received any collections, recoveries or payments with respect to the Assets that
are received by a Subservicer regardless of whether such payments are remitted
by the Subservicer to the Servicer.
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ARTICLE VI
REPORTS AND TAX MATTERS
SECTION 6.01. Monthly Reports.
(a) No later than 1:00 p.m. on the fourth Business Day prior to each
Distribution Date, the Servicer shall deliver to the Trustee and the Backup
Servicer, the Electronic File referred to in Section 5.04(c).
(b) Reserved.
SECTION 6.02. Certificate of Servicing Officer.
Each Electronic File pursuant to Section 6.01 shall be accompanied by a
certificate of a Servicing Officer substantially in the form of Exhibit I,
certifying the accuracy of the Electronic File and that no Event of Termination
or event that with notice or lapse of time or both would become an Event of
Termination has occurred, or if such event has occurred and is continuing,
specifying the event and its status.
SECTION 6.03. Other Data.
In addition, the Seller and (if different from the Seller) the Servicer
shall, on request of the Trustee, each Rating Agency, furnish the Trustee and/or
each Rating Agency such underlying data as may be reasonably requested.
SECTION 6.04. Annual Report of Accountants; Annual Statement of
Compliance.
On or before the fifteenth day of the third month following the end of the
Servicer's fiscal year, commencing in [______________], the Servicer at its
expense shall cause a firm of independent public accountants which is a member
of the American Institute of Certified Public Accountants to issue to the
Servicer a report that such firm has examined selected documents, records and
management's assertions relating to loans serviced by the Servicer and stating
that, on the basis of such examination, such servicing has been conducted in
compliance with the minimum servicing standards identified in the Mortgage
Bankers Association of America's Uniform Single Attestation Program for Mortgage
Bankers, or any successor uniform program, except for such significant
exceptions or errors in records that, in the opinion of such firm, generally
accepted attestation standards requires it to report. The Servicer shall deliver
a copy of such report to the Trustee, the Depositor and the Rating Agencies.
The Servicer shall deliver to the Depositor, the Rating Agencies and the
Trustee on or before the fifteenth day of the third month following the end of
the Servicer's fiscal year, commencing in [________________], an Officer's
Certificate stating, as to the signer thereof, that (i) a review of the
activities of the Servicer during the preceding fiscal year and of the
performance of the Servicer under this Agreement has been made under such
officer's supervision and (ii) to the best of such officer's knowledge, based on
such review, the Servicer has fulfilled all its obligations under this Agreement
throughout such year, or, if there has been a
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default in the fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof.
SECTION 6.05. Statements to Certificateholders.
(a) Based on the information set forth in the Electronic File, the
Trustee will prepare and make available the Monthly Report substantially in the
form of Exhibit N for each Distribution Date to each Certificateholder, the
Underwriter and the parties hereto.
(b) Each Monthly Report shall set forth the following:
(i) the amount of such distribution to Holders of each Class of
Certificates allocable to interest, separately identifying any
related Unpaid Class Interest Shortfall included in such
distribution and any remaining Unpaid Class Interest Shortfall
after giving effect to such distribution;
(ii) the amount of such distribution to Holders of each Class of
Certificates allocable to principal, separately identifying
the aggregate amount of any Principal Prepayments included
therein, and any remaining related Unpaid Class Principal
Shortfall after giving effect to such distribution;
(iii) the Class Principal Balance for each Class of Certificates,
after giving effect to the distribution of principal on such
Distribution Date; the Class M-1 Principal Balance and the
Class M-1 Adjusted Principal Balance (if different) after
giving effect to the distribution of principal on such
Distribution Date; the Class M-2 Principal Balance and the
Class M-2 Adjusted Principal Balance (if different) after
giving effect to the distribution of principal on such
Distribution Date; the Class B-1 Principal Balance and the
Class B-1 Adjusted Principal Balance (if different) after
giving effect to the distribution of principal on such
Distribution Date;
(iv) the Class A Percentage, Class M-1 Percentage, Class M-2
Percentage and Class B Percentage for such Distribution Date
and the following Distribution Date;
(v) the Pool Principal Balance of the Assets for such Distribution
Date;
(vi) the Pool Factor;
(vii) the number and aggregate principal balances of Assets
delinquent (a) 30-59 days and (b) 60 or more days;
(viii) the number of Manufactured Homes that were repossessed during
the month ending immediately prior to such Distribution Date,
the number of repossessed Manufactured Homes that remain in
inventory as of the last day of the related Due Period and
repossessed Manufactured Homes purchased by the Seller or a
subsidiary of the Seller from the Trust (during the related
Due Period and cumulatively) by number of Contracts,
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aggregate Principal Balance of such Contracts and aggregate
purchase price;
(ix) the number of Mortgaged Properties that were foreclosed upon
during the month ending immediately prior to such Distribution
Date and the Aggregate Principal Balance of the related
Mortgage Loan;
(x) number of Assets and aggregate Principal Balance of Assets
extended or otherwise amended during the Due Period preceding
current Distribution Date;
(xi) the Class M-1 Distribution Test;
(xii) the Class M-2 Distribution Test;
(xiii) the Class B Distribution Test;
(xiv) the Weighted Average Net Asset Rate of all outstanding Assets;
(xv) the Class M-1 Interest Deficiency Amount, if any, for such
Distribution Date;
(xvi) the Class M-2 Interest Deficiency Amount, if any, for such
Distribution Date;
(xvii) the Class B-1 Interest Deficiency Amount, if any, for such
Distribution Date;
(xviii) the Targeted Overcollateralization Amount,
Overcollateralization Amount, Overcollateralization Deficiency
Amount and Overcollateralization Release Amount, if any, for
such Distribution Date;
(xix) the Additional Principal Distribution Amount, if any, to be
distributed on such Distribution Date pursuant to Section
8.03(a)(12) or Section 8.03(a)(13);
(xx) Cumulative Realized Losses; and
(xxi) Current Realized Losses.
In the case of information furnished pursuant to clauses (i) through (iii)
above, the amounts shall be expressed as a dollar amount per Class of
Certificates with a $1,000 denomination.
The Trustee will make available each month to any Holder or beneficial
owner of offered Certificates, the Monthly Report via the Trustee's internet web
site, initially located at [__________________]. The Trustee will make no
representations or warranties as to the accuracy or completeness of, and may
attach a reasonable and customary disclaimer to, any
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information made available by it on its web site. The Trustee may require
registration and the acceptance of a disclaimer in connection with providing
access to its internet web site. The Trustee will cooperate with the Seller to
make information available to other information sources, including Bloomberg and
Intex. The Trustee will not be liable for the dissemination of information in
accordance with this Agreement.
Within a reasonable period of time after the end of each calendar year,
the Trustee shall furnish or cause to be furnished to each Person who at any
time during the calendar year was the Holder of a Certificate a statement
containing the information with respect to interest accrued and principal paid
on its Certificates during such calendar year. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in force.
SECTION 6.06. Payment of Taxes.
The Trustee shall be responsible for and agrees to prepare, make and file
all federal, state, local or other tax returns, information statements and other
returns and documents of every kind and nature whatsoever required to be made or
filed by or on behalf of the Subsidiary REMIC or Master REMIC pursuant to the
Code and other applicable tax laws and regulations. Each such return, statement
and document shall, to the extent required by the Code or other applicable law
and at the request of the Servicer, be signed on behalf of the Subsidiary REMIC
or Master REMIC by the Trustee. The Servicer, if and for so long as it is a
Class R Certificateholder, shall be designated the "tax matters person" on
behalf of the Subsidiary REMIC and the Master REMIC, respectively, in the same
manner as a partnership may designate a "tax matters partner," as such term is
defined in Section 6231(a)(7) of the Code. To the extent permitted by the REMIC
Provisions, the Servicer and any subsequent holder of a Class R Certificate, by
acceptance thereof, irrevocably designates and appoints the Trustee as its agent
to perform the responsibilities of the "tax matters person" on behalf of the
Subsidiary REMIC and the Master REMIC, respectively, if, and during such time
as, the Servicer is not the holder of a Class R Certificate. The Trustee may, at
its expense, retain such outside assistance as it deems necessary in the
performance of its obligations under this paragraph.
Each of the Holders of the Certificates, by acceptance thereof, agrees to
file tax returns consistent with and in accordance with any elections, decisions
or other reports made or filed with regard to federal, state or local taxes on
behalf of the Subsidiary REMIC or the Master REMIC. The Trustee, as agent for
the tax matters person, shall represent the Subsidiary REMIC or the Master REMIC
in connection with all examinations of the Subsidiary REMIC's or the Master
REMIC's affairs by tax authorities, including resulting administrative and
judicial proceedings. Each of the holders of the Certificates, by acceptance
thereof, agrees to cooperate with the Trustee in such matters and to do or
refrain from doing any or all things reasonably required by the Trustee to
conduct such proceedings; provided, that no such action shall be required by the
Trustee of any Certificateholder that would entail unnecessary or unreasonable
expenses for such Certificateholder in the performance of such action.
The Class R Certificateholders shall pay, on behalf of the Subsidiary
REMIC or the Master REMIC, any foreign, federal, state or local income,
property, excise, sales, receipts or
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any other similar or related taxes or charges which may be imposed upon the
Subsidiary REMIC or the Master REMIC as a REMIC or otherwise and shall, to the
extent provided in Section 10.06, be entitled to be reimbursed out of the
Collection Account or, if such tax or charge results from a failure by the
Trustee, the Seller or the Servicer to comply with the provisions of Section
2.04 or 3.07, the Trustee, the Seller or such Servicer, as the case may be,
shall indemnify the Class R Certificateholders for the payment of any such tax
or charge. The Trustee shall be entitled to withhold from amounts otherwise
distributable to the Class R Certificateholders any taxes or charges payable by
the Class R Certificateholders hereunder.
In the event a Class R Certificate is transferred to a "disqualified
organization," within the meaning of Section 860E(e)(5) of the Code, pursuant to
Section 860D(a)(6)(B) of the Code the Seller shall provide to the Internal
Revenue Service and the persons specified in Sections 860E(e)(3) and (6) of the
Code all information necessary for the application of Section 860E(e) and any
other applicable provision of the Code with respect to the transfer of such
Class R Certificate to such a disqualified organization including, without
limitation, a computation showing the present value of the total anticipated
excess inclusions with respect to such Class R Certificate for periods after the
transfer as defined in the REMIC Provisions. In addition, to the extent required
by the REMIC Provisions, the Seller shall, upon the written request of persons
designated in Section 860E(e)(3) of the Code, furnish to such requesting party
and the Internal Revenue Service information sufficient to compute the present
value of anticipated excess inclusions within 60 days of the receipt of such
written request.
SECTION 6.07. Reports to the Commission; Annual Certification of
Commission Filing.
(a) The Servicer shall reasonably cooperate with the Depositor in
connection with the Trust's satisfying the reporting requirements under the
Exchange Act. The Servicer shall prepare on behalf of the Trust any Forms 8-K
and 10-K customary for similar securities as required by the Exchange Act and
the Rules and Regulations of the Securities and Exchange Commission thereunder,
and the Servicer shall sign and file (via the Securities and Exchange
Commission's Electronic Data Gathering and Retrieval System) such Forms on
behalf of the Depositor. The Depositor hereby grants to the Servicer a limited
power of attorney to execute and file each such document on behalf of the
Depositor. Such power of attorney shall continue until either the earlier of (i)
receipt by the Servicer from the Depositor of written termination of such power
of attorney and (ii) the termination of the Trust. Notwithstanding the
foregoing, the Depositor shall sign any Form 10-K with respect to which the
Depositor signs a Xxxxxxxx-Xxxxx Certification.
(b) The Servicer shall file a Form 8-K within 15 days after each
Distribution Date, including a Form 8-K with a copy of the Monthly Report
substantially in the form of Exhibit N hereto. Prior to March 15th of each year
(or such earlier date as may be required by the Exchange Act and the Rules and
Regulations of the Commission), the Servicer shall file a Form 10-K, in
substance as required by applicable law or applicable Commission staff
interpretations. Such Form 10-K shall include as exhibits the Servicer's annual
statement of compliance described and the accountant's report described under
Section 6.04. The Servicer shall have no liability with respect to any failure
to properly prepare or file such periodic reports resulting from or relating to
the Servicer's inability or failure to obtain any information not resulting from
its own negligence or willful misconduct. The Form 10-K shall also include a
certification of the
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Depositor ("Xxxxxxxx-Xxxxx Certification") required pursuant to Rule 13a-14
under the Exchange Act, which shall be signed by the senior officer of the
Depositor in charge of its securitizations, and which the Depositor shall
deliver to the Servicer prior to March 15th of each year in which a Form 10-K is
to be filed with respect to the Trust. The Depositor and the Servicer shall
cooperate reasonably to enable the Commission requirements with respect to the
Trust to be met in the event the Commission issues additional interpretative
guidance or promulgates rules or regulations, or in the event of any other
change of law, that would require the reporting arrangements, or the allocation
of responsibilities with respect thereto, described in this Section 6.07 to be
conducted in a different manner than as described herein.
(c) Not later than 15 calendar days before the date on which the
Depositor's annual report on Form 10-K is required to be filed in accordance
with the Exchange Act and the rules and regulations of the Commission (or, if
such day is not a Business Day, the immediately preceding Business Day), an
officer of the Servicer shall execute and deliver an Officer's Certificate
(each, a "Servicer Certification") to the Depositor and their officers,
directors and affiliates, certifying as to the following matters:
(i) Based on my knowledge, the information in the annual statement
of compliance, the annual accountant's report and all
servicing reports, officer's certificates and other
information relating to the servicing of the Assets submitted
to the Depositor, taken as a whole, does not contain any
untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light
of the circumstances under which such statements were made,
not misleading as of the date of this certification;
(ii) The servicing information required to be provided to the
Depositor by the Servicer under the Agreement has been
provided to the Depositor;
(iii) I am responsible for reviewing the activities performed by the
Servicer under the Agreement and based upon the review
required by the Agreement, and except as disclosed in the
annual statement of compliance or the annual accountant's
report, the Servicer has, as of the date of this certification
fulfilled its obligations under the Agreement; and
(iv) I have disclosed to the Depositor all significant deficiencies
relating to the Servicer's compliance with the minimum
servicing standards in accordance with a review conducted in
compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar standard as set forth in the
Agreement.
(d) The Servicer agrees to indemnify and hold harmless each of the
Depositor and each Person, if any, who "controls" the Depositor within the
meaning of the Securities Act and their respective officers, directors and
Affiliates against any and all losses, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments and any other costs and expenses that
such Person may sustain arising out of or based on the failure of the Servicer
to deliver or
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cause to be delivered when required any Officer's Certificate required pursuant
to this Section 6.07(c), or any material misstatement or omission contained in
any Officer's Certificate provided pursuant to this Section 6.07(c), or the
Servicer's negligence, bad faith or willful misconduct of the Servicer in
connection therewith. If an event occurs that would otherwise result in an
indemnification obligation under this Section 6.07(c), but the indemnification
provided for in this Section 6.07(c) by the Servicer is unavailable or
insufficient to hold harmless such Persons, then the Servicer shall contribute
to the amount paid or payable by such Persons as a result of the losses, claims,
damages or liabilities of such Persons in such proportion as is appropriate to
reflect the relative fault of the Depositor on the one hand and the Servicer on
the other. The Servicer acknowledges that the Depositor is relying on the
Servicer's performance of its obligations under this Agreement in order to
perform their respective obligations under this Section 6.07.
(e) Upon any filing with the Commission, the Servicer shall promptly
deliver to the Depositor a copy of any such executed report, statement or
information.
(f) If the Commission issues additional interpretative guidance or
promulgates additional rules or regulations, or if other changes in applicable
law occur, which would require the reporting arrangements, or the allocation of
responsibilities with respect thereto, described in this Section 6.07, to be
conducted differently than as described, the Depositor and the Servicer will
reasonably cooperate to amend the provisions of this Section 6.07 in order to
comply with such amended reporting requirements and such amendment of this
Section 6.07. Any such amendment shall be made in accordance with Section 12.07
without the consent of the Certificateholders, and may result in a change in the
reports filed by the Servicer on behalf of the Trust under the Exchange Act.
Notwithstanding the foregoing, none of the Depositor or the Servicer shall be
obligated to enter into any amendment pursuant to this Section 6.07 that
adversely affects its obligations and immunities under this Agreement.
(g) Prior to January 30 of the first year in which the Servicer is able
to do so under applicable law, the Servicer shall file a Form 15D Suspension
Notification with respect to the Trust.
ARTICLE VII
SERVICE TRANSFER
SECTION 7.01. Event of Termination.
"Event of Termination" means the occurrence of any of the following:
(a) (1) The failure by the Servicer to make by the Business Day
preceding the related Distribution Date any required Monthly Advance (other than
a Nonrecoverable Advance); or (2) any other failure by the Servicer to deposit
in the Collection Account any deposit required to be made under the terms of
this Agreement which continues unremedied for a period of two Business Days
after the date upon which written notice of such failure shall have been given
to the Servicer by the Trustee or to the Servicer and the Trustee by any holders
of Regular
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Certificates evidencing an aggregate undivided interest in the Trust of a
Percentage Interest of at least 25%;
(b) Failure on the Servicer's part to observe or perform in any material
respect any covenant or agreement in this Agreement (other than a covenant or
agreement which is elsewhere in this Section specifically dealt with) which
continues unremedied for 30 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Trustee or to the Servicer and the Trustee by any holders of
Regular Certificates evidencing an aggregate interest in the Trust of a
Percentage Interest of at least 25%;
(c) A court or other governmental authority having jurisdiction in the
premises shall have entered a decree or order for relief in respect of the
Servicer in an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
the Servicer, as the case may be, or for any substantial liquidation of its
affairs, and such order remains undischarged and unstayed for at least 60 days;
(d) The Servicer shall have commenced a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall have consented to the entry of an order for relief in an
involuntary case under any such law, or shall have consented to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee, custodian
or sequestrator (or other similar official) of the Servicer or for any
substantial part of its property, or shall have made any general assignment for
the benefit of its creditors, or shall have failed to, or admitted in writing
its inability to, pay its debts as they become due, or shall have taken any
corporate action in furtherance of the foregoing; or
(e) So long as the Seller or the Originator is an affiliate of the
Servicer, any failure of the Seller or the Originator, to repurchase, or
substitute an Eligible Substitute Asset for, any Asset as required by Sections
3.06.
SECTION 7.02. Transfer.
If an Event of Termination has occurred and is continuing, either the
Trustee or Certificateholders with aggregate Percentage Interests representing
51% or more of the Trust, by notice in writing to the Servicer (and to the
Trustee if given by the Certificateholders) may terminate all (but not less than
all) of the Servicer's management, administrative, servicing and collection
functions (such termination being herein called a "Service Transfer"). On
receipt of such notice (or, if later, on a date designated therein), or upon
resignation of the Servicer in accordance with Section 12.01, all authority and
power of the Servicer under this Agreement, whether with respect to the Mortgage
Loans, Contracts, the Servicer Mortgage Loan Files, the Contract Files, the
Land-and-Home Contract Files or otherwise (except with respect to the Collection
Account, the transfer of which shall be governed by Section 7.06), shall pass to
and be vested in the Backup Servicer pursuant to and under this Section 7.02;
and, without limitation, the Backup Servicer is authorized and empowered to
execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise,
any and all documents and other instruments (including, without limitation,
documents required to make the Backup Servicer or any successor
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servicer the sole lienholder or legal title holder of record of each
Manufactured Home or Mortgaged Property (as applicable)) and to do any and all
acts or things necessary or appropriate to effect the purposes of such notice of
termination. Each of the Seller and the Servicer agrees to cooperate with the
Backup Servicer in effecting the termination of the responsibilities and rights
of the Servicer hereunder, including, without limitation, the transfer to the
Backup Servicer for administration by it of all cash amounts which shall at the
time be held by the Servicer for deposit, or have been deposited by the
Servicer, in the Collection Account, or for its own account in connection with
its services hereafter or thereafter received with respect to the Contracts and
the execution of any documents required to make the Backup Servicer or a
successor servicer the sole lienholder or legal title holder of record in
respect of each Manufactured Home. The Servicer shall be entitled to receive any
other amounts which are payable to the Servicer under the Agreement, at the time
of the termination of its activities as Servicer. The Servicer shall transfer to
the new servicer (i) the Servicer's records relating to the Assets in such
electronic form as the new servicer may reasonably request and (ii) any
Contracts, Mortgage Loans, Servicer Mortgage Loan Files, Contract Files and
Land-and-Home Contract Files in the Servicer's possession. Any and all costs and
expenses incurred by the Backup Servicer in connection with the transfer of
servicing functions as provided herein, including, without limitation, the cost
of delivering the Assets and related files to the Backup Servicer, shall be paid
by the initial Servicer within 10 days following invoice therefor, and to the
extent not paid in a timely manner, the Backup Servicer may reimburse itself for
such costs and expenses from the Collection Account. The Backup Servicer shall
not be liable to and shall be held harmless by the Trust, the
Certificateholders, the Seller, the Depositor and the initial Servicer for any
and all claims arising from or related to (i) any missing of lost Mortgage
Loans, Contracts, Servicer Mortgage Loan Files, Contract Files or related
documents or (ii) any inaccurate, incomplete or missing information reasonably
necessary for the servicing of the Contracts, which is not the direct result of
the willful misfeasance or negligence of the Backup Servicer.
SECTION 7.03. Backup Servicer to Act, Appointment of Successor.
On and after the time the Servicer receives a notice of termination
pursuant to Section 7.02 or the resignation of the Servicer in accordance with
Section 12.01, the Backup Servicer , upon two (2) Business Days' written notice
from the Trustee of such Service Transfer to the Backup Servicer, shall be the
successor in all respects to the servicing rights, duties and responsibilities
of the Servicer (in its capacity as servicer under this Agreement) which arise
after the effective date of such Service Transfer and the Servicer (except as
provided herein) shall be relieved of such responsibilities, duties and
liabilities arising after such Service Transfer; provided, however, that (i) the
Backup Servicer will not assume any obligations of the Seller pursuant to
Section 3.06, and (ii) the Backup Servicer shall not be liable for any acts or
omissions of the initial or any prior Servicer accruing prior to such Service
Transfer or for any breach or default by the initial or any prior Servicer of
any of its obligations contained herein or in any related document or agreement,
and (iii) the initial or any prior Servicer shall remain liable for any acts or
omissions of such initial or prior Servicer occurring prior to such Service
Transfer or for any breach by the Servicer of any of its obligations contained
herein or in any related document or agreement. As compensation therefor, the
Backup Servicer shall be entitled to receive the Monthly Servicing Fee.
Furthermore, the Backup Servicer shall be entitled to all rights of the Servicer
in connection with its responsibilities under this Agreement, including
reimbursement rights for advances as provided herein. If the Backup Servicer is
legally unable
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so to act, the Trustee may appoint, or petition a court of competent
jurisdiction to appoint, an Eligible Servicer as the successor to the Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer hereunder. Pending appointment of a successor to
the Servicer hereunder, the Servicer shall act in such capacity until a
successor servicer assumes such responsibilities, duties or liabilities. In
connection with such appointment and assumption, the Backup Servicer may make
such arrangements for the compensation of such successor out of payments on
Contracts as it and such successor shall agree; provided, however, that no such
monthly compensation shall, without the written consent of 100% of the
Certificateholders, exceed the Monthly Servicing Fee. The Trustee and the Backup
Servicer and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession as provided
herein. The Backup Servicer shall be entitled to rely upon the representations,
warranties and covenants made by the Seller and the initial Servicer set forth
in this Agreement and any related document, and the Backup Servicer shall be
held harmless by the Trust, the Certificateholders, the Seller and the initial
Servicer, for any and all claims, liabilities, obligations, losses damages,
payments costs or expenses (including reasonable attorneys' fees) of any kind
whatsoever arising from or related to any breach, inaccuracy, default or
nonperformance of such representations, warranties or covenants of the Seller or
the initial Servicer as set forth herein.
SECTION 7.04. Notification to Certificateholders.
(a) Promptly following the occurrence of any Event of Termination, the
Servicer shall give written notice thereof to the Trustee, the Backup Servicer,
the Rating Agencies and the Certificateholders at their respective addresses
appearing on the Certificate Register.
(b) Within ten days following any termination or appointment of a
successor to the Servicer pursuant to this Article VII, the Trustee shall give
written notice thereof to the Rating Agencies and the Certificateholders at
their respective addresses appearing on the Certificate Register.
(c) The Trustee shall give written notice to the Rating Agencies prior
to the date upon which any Eligible Servicer (other than the Trustee) is to
assume the responsibilities of Servicer pursuant to Section 7.03, naming such
successor Servicer.
SECTION 7.05. Effect of Transfer.
(a) After the Service Transfer, the Backup Servicer or new Servicer may
notify Obligors to make payments directly to the new Servicer that are due under
the Contracts after the effective date of the Service Transfer.
(b) After the Service Transfer, the replaced Servicer shall have no
further obligations with respect to the management, administration, servicing or
collection of the Contracts and the Backup Servicer shall have all of such
obligations except as provided herein and the replaced Servicer will transmit or
cause to be transmitted directly to the Backup Servicer for its own account,
promptly on receipt and in the same form in which received, any amounts
(properly endorsed where required for the Backup Servicer to collect them)
received as payments upon or otherwise in connection with the Contracts.
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(c) A Service Transfer shall not affect the rights and duties of the
parties hereunder (including but not limited to the indemnities of the Servicer
and the Seller pursuant to Article X and Sections 3.06, 11.06 and 11.11(f))
other than those relating to the management, administration, servicing or
collection of the Contracts following the effective Service Transfer. Upon and
following a Servicer Transfer, the initial Servicer shall have no further rights
to the Monthly Servicing Fee, other than any accrued and unpaid Monthly
Servicing Fee due to the initial Servicer as of such date.
SECTION 7.06. Transfer of Collection Account.
Notwithstanding the provisions of Section 7.02, if the Collection Account
shall be maintained with the Servicer and an Event of Termination shall occur
and be continuing, the Servicer shall, after five days' written notice from the
Trustee, or in any event within ten days after the occurrence of the Event of
Termination, establish an Eligible Account with an institution other than the
Servicer and promptly transfer all funds in the Collection Account to such new
account, which shall thereafter be deemed the Collection Account for the
purposes hereof. Upon a Service Transfer, the Collection Account shall be
transferred to an Eligible Account as directed by the successor Servicer.
ARTICLE VIII
PAYMENTS
SECTION 8.01. Monthly Payments.
(a) Subject to the terms of this Article VIII, each Holder of a
Certificate as of a Record Date shall be paid the sum equal to such
Certificateholder's Percentage Interest of all amounts distributed on the
applicable Class of Certificates on the next succeeding Distribution Date by
check mailed on such Distribution Date to such Certificateholder at the address
for such Certificateholder appearing on the Certificate Register (or by wire
transfer pursuant to instructions delivered to the Trustee at least ten days
prior to such Distribution Date). Final payment of any Certificate shall be made
only upon presentation of such Certificate at the office or agency of the Paying
Agent.
(b) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, which shall credit the amount of such distribution to
the accounts of its Depository Participants in accordance with its normal
procedures. Each Depository Participant shall be responsible for disbursing such
distribution to the Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the Certificate Owners that it represents. All such credits
and disbursements with respect to a Book-Entry Certificate are to be made by the
Depository and the Depository Participants in accordance with the provisions of
the Book Entry Certificates. Neither the Trustee, the Certificate Registrar, the
Seller nor the Servicer shall have any responsibility therefor except as
otherwise provided by applicable law. To the extent applicable and not contrary
to the rules of the Depository, the Trustee shall comply with the provisions of
the forms of the Class A, Class M, and Class B Certificates as set forth in
Exhibits A, B and C hereto.
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(c) The Trustee shall either act as the paying agent or shall appoint an
institution meeting the eligibility requirements set forth in Section 11.06 to
be the paying agent (in either case, the "Paying Agent") and cause it to make
the payments to the Certificateholders required hereunder. The Paying Agent
shall initially be located at the Trustee's Corporate Trust Office at
[_____________________________________________________________], shall initially
act as Paying Agent. The Trustee shall require the Paying Agent (if other than
the Trustee) to agree in writing that all amounts held by the Paying Agent for
payment hereunder will be held in trust for the benefit of the
Certificateholders and that it will notify the Trustee of any failure by the
Servicer to make funds available to the Paying Agent for the payment of amounts
due on the Certificates.
SECTION 8.02. Permitted Withdrawals from the Collection Account.
The Servicer may, from time to time as provided herein, make withdrawals
from the Collection Account of amounts deposited in said account pursuant to
Section 5.05 that are attributable to the Contracts for the following purposes:
(a) to remit the Amount Available to the Trustee for deposit in the
Distribution Account to make payments in the amounts and in the manner provided
for in Section 8.03;
(b) to pay to the Seller with respect to each Asset or property acquired
in respect thereof that has been repurchased or replaced pursuant to Section
3.06, all amounts received thereon and not required to be distributed to
Certificateholders as of the date on which the related Principal Balance or
Repurchase Price is determined;
(c) to reimburse the Servicer out of Liquidation Proceeds for
Liquidation Expenses incurred by it, to the extent such reimbursement is
permitted pursuant to Section 5.08;
(d) to withdraw any amount deposited in the Collection Account that was
not required to be deposited therein;
(e) to make any rebates or adjustments deemed necessary by the Servicer
pursuant to Section 5.06(d); or
(f) to reimburse the Servicer for any accrued unpaid Monthly Servicing
Fees, to the extent not otherwise retained. The Servicer's right to
reimbursement for unpaid Servicing Fees shall be limited to late collections on
the related Asset, including Liquidation Proceeds, Insurance Proceeds and such
other amounts as may be collected by the Servicer from the related Obligor or
otherwise relating to the Asset in respect of which such reimbursed amounts are
owed. Except with respect to Nonrecoverable Advances, the Servicer's right to
reimbursement for unreimbursed Monthly Advances shall be limited to late
collections of interest on any Asset and to Liquidation Proceeds and Insurance
Proceeds on related Obligors.
Since, in connection with withdrawals pursuant to clause (b), the Seller's
entitlement thereto is limited to collections or other recoveries on the related
Asset, the Servicer shall keep and maintain separate accounting, on a Asset by
Asset basis, for the purpose of justifying any withdrawal from the Collection
Account pursuant to such clause.
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One Business Day before each Distribution Date, no later than 1:00 p.m.
New York time, the Servicer will remit to the Trustee for deposit into the
Distribution Account the Amount Available.
SECTION 8.03. Payments.
(a) On each Distribution Date the Trustee shall withdraw from the
Distribution Account the Amount Available (as determined by the Servicer on the
immediately preceding Determination Date), plus on the Post-Funding Distribution
Date any Pre-Funded Amount, and apply such funds to make payment in the
following order of priority, subject to Section 8.03(d):
1. to the Trustee, the Trustee Fee for such Distribution Date;
2. (a) to the Servicer, the Monthly Servicing Fee (to the extent
not withdrawn from the Collection Account pursuant to Section 8.02) and
any other compensation owed to the Servicer pursuant to Section 7.03 and
[(b)] to the Backup Servicer, the Backup Servicing Fee, if any, and any
other compensation owed to the Backup Servicer pursuant to Section 7.03;
3. to the Class A Certificateholders as follows:
(i) the amount in clause (a)(i) of the definition of Class A
Formula Distribution Amount to the Class A-1
Certificateholders; the amount in clause (a)(ii) to the
Class A-2 Certificateholders; the amount in clause
(a)(iii) to the Class A-3 Certificateholders; the amount
in clause (a)(iv) to the Class A-4 Certificateholders;
the amount in clause (a)(v) to the Class A-5
Certificateholders, the amount in clause (a)(vi) to the
Class A-6 Certificateholders, the amount in clause
(a)(vii) to the Class A-7 Certificateholders or, if the
available amount is less than the sum of the amounts
specified in this clause (i), pro rata to each Class of
Class A Certificates based on the amount of interest
payable pursuant to this clause;
(ii) the aggregate Unpaid Class A Interest Shortfall pro rata
to each Class of Class A Certificates based on the
Unpaid Class A Interest Shortfall of each such Class;
4. to the Class M-1 Certificateholders as follows:
(i) the amount in clause (a) of the definition of Class M-1
Formula Distribution Amount;
(ii) any Unpaid Class M-1 Interest Shortfall;
5. to the Class M-2 Certificateholders as follows:
(i) the amount in clause (a) of the definition of Class M-2
Formula Distribution Amount;
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(ii) any Unpaid Class M-2 Interest Shortfall;
6. to the Class B-1 Certificateholders as follows:
(i) the amount in clause (a) of the definition of Class B-1
Formula Distribution Amount;
(ii) any Unpaid Class B-1 Interest Shortfall;
7. to the Class A Certificateholders as follows:
(i) if there is a Class A Principal Deficiency Amount as of
such Distribution Date, the remaining Amount Available,
pro rata to each Class of Class A Certificates based on
the related Class Principal Balance (but in no event
shall such amount exceed the related Class Principal
Balance);
(ii) the Unpaid Class A Principal Shortfall to the Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-6
and Class A-7 Certificateholders in the order of
priority set forth in clause (iii) below, but to each
Class of Class A Certificates no more than the Unpaid
Class A Principal Shortfall attributable to such Class;
(iii) if such Distribution Date is on or prior to the Class
A-6 Cross-Over Date, the Class A Percentage of the
Formula Principal Distribution Amount to the Class A
Certificateholders as follows:
(x) the Class A-1/A-6 Pro Rata Percentage to the
following Classes of Certificates, sequentially, as
follows:
(a) to the Class A-1 Certificateholders, but in no
event more than the Class A-1 Principal Balance;
(b) to the Class A-2 Certificateholders, but in no
event more than the Class A-2 Principal Balance;
(c) to the Class A-3 Certificateholders, but in no
event more than the Class A-3 Principal Balance;
(d) to the Class A-4 Certificateholders, but in no
event more than the Class A-4 Principal Balance;
(e) to the Class A-5 Certificateholders, but in no
event more than the Class A-5 Principal Balance;
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(f) to the Class A-6 Certificateholders, but in no
event more than the Class A-6 Principal Balance;
(y) the Class A-7 Pro Rata Percentage to the Class A-7
Certificates but in no event more than the Class
A-7 Principal Balance.
8. to the Class M-1 Certificateholders as follows:
(i) any Unpaid Class M-1 Principal Shortfall;
(ii) the Class M-1 Percentage of the Formula Principal
Distribution Amount (plus, if such Distribution Date is
on the Class A-6 Cross-Over Date, the amount by which
the Class A Percentage of the Formula Principal
Distribution Amount exceeds the Class A Principal
Balance on such date), but in no event more than the
Class M-1 Principal Balance;
(iii) any Class M-1 Liquidation Loss Interest Amount;
(iv) any Unpaid Class M-1 Liquidation Loss Interest
Shortfall;
9. to the Class M-2 Certificateholders as follows:
(i) any Unpaid Class M-2 Principal Shortfall;
(ii) the Class M-2 Percentage of the Formula Principal
Distribution Amount (plus, if such Distribution Date is
on the Class M-1 Cross-Over Date, the amount, if any, by
which the sum of the Class A Percentage and the Class
M-1 Percentage of the Formula Principal Distribution
Amount exceeds the sum of the Class A and Class M-1
Principal Balances on such date), but in no event more
than the Class M-2 Principal Balance;
(iii) any Class M-2 Liquidation Loss Interest Amount;
(iv) any Unpaid Class M-2 Liquidation Loss Interest
Shortfall;
10. to the Class B-1 Certificateholders as follows:
(i) any Unpaid Class B-1 Principal Shortfall;
(ii) the Class B Percentage of the Formula Principal
Distribution Amount (plus, if such Distribution Date is
on the Class M-2 Cross-Over Date, the amount, if any, by
which the sum of the Class A, Class M-1 and Class M-2
Percentages of the Formula Principal Distribution Amount
exceeds the sum of the Class A, Class M-1
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and Class M-2 Principal Balances on such date), but in
no event more than the Class B-1 Principal Balance;
(iii) any Class B-1 Liquidation Loss Interest Amount;
(iv) any Unpaid Class B-1 Liquidation Loss Interest
Shortfall;
11. to the Holders of Offered Certificates any Additional
Principal Distribution Amount, in the order of priority described in
clauses (8)[(9)], (9)[(10)], (10)[(11)] and (11)[(12)] above.
12. on each Additional Principal Payment Date (as defined in
Section 8.05(f)), first, to the Class M-1, Class M-2 and Class B-1
Certificateholders any Distributable Excess Spread, pro rata based upon
the Class Principal Balance of each Class (after giving effect to
distributions on principal on that date), until each such Class'
respective Class Principal Balances are reduced to zero and then to the
Class A Certificateholders then outstanding any Distributable Excess
Spread, pro rata based upon the Class Principal Balance of each Class
(after giving effect to distributions of principal on that date) until
each such Class' respective Class Principal Balances are reduced to zero;
13. to the Servicer and the Backup Servicer, amounts in respect of
indemnification or other amounts to which it is entitled under this
Agreement, including under Section 10.08;
14. the Class X Distribution Amount to the Class X
Certificateholders; and
15. any remaining funds to the Class R Certificateholders.
(b) On any Distribution Date on which the aggregate Class A Principal
Balance is greater than the Pool Principal Balance for such Distribution Date,
any distribution of the Formula Principal Distribution Amount pursuant to
Section 8.03(a)8(iii) above shall be distributed to each class of Class A
Certificates pro rata.
(c) Notwithstanding the priorities set forth above, any Pre-Funded
Amount deposited in the Collection Account shall be applied solely to pay
principal of the Class A Certificates as specified in Section 8.03(a)(8) above.
SECTION 8.04. [Reserved]
SECTION 8.05. The Servicer's Purchase Option; Auction Sale; Additional
Principal Distribution Amount.
(a) Subject to the conditions in subsection (b) below, the Servicer
shall have the option to purchase all of the Assets and all property acquired in
respect of any Asset remaining in the Trust (including REO Property and Repo
Property) at a price (such price being referred to as the "Minimum Purchase
Price") equal to the greater of:
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A. the sum of (x) 100% of the Principal Balance of each Asset
(other than any Asset as to which title to the underlying
property has been acquired and whose fair market value is
included pursuant to clause (y) below), plus (y) the fair
market value of such acquired property (as determined by the
Servicer of the close of business on the third Business Day
next preceding the date upon which notice of any such
termination is furnished to Certificateholders pursuant to
Section 12.03) or
B. the aggregate fair market value (as determined by the Servicer
as of the close of business on such third Business Day) of all
of the assets of the Trust,
plus, in either case, any outstanding amounts owed to the Trustee, any
Unpaid Class A Interest Shortfall, any Unpaid Class M-1 Interest Shortfall, any
Unpaid Class M-1 Liquidation Loss Interest Shortfall, any Unpaid Class M-2
Interest Shortfall, any Unpaid Class M-2 Liquidation Loss Interest Shortfall,
any Unpaid Class B-1 Interest Shortfall and any Unpaid Class B-1 Liquidation
Loss Interest Shortfall.
(b) The purchase by the Servicer of all of the Assets pursuant to Section
8.05(a) above shall be at the option of the Servicer, but shall be conditioned
upon (1) the Pool Principal Balance, at the time of any such purchase,
aggregating not more than 10% of the sum of the Cut-off Date Pool Principal
Balance and the Original Pre-Funded Amount, (2) such purchase being made
pursuant to a plan of complete liquidation of each of the Subsidiary REMIC and
the Master REMIC in accordance with Section 860F of the Code, as provided in
Section 12.03, and (3) the Servicer having provided the Trustee and the
Depository (if any) with at least 30 days' written notice. If such option is
exercised, the Servicer, shall provide to the Trustee the certification required
by Section 12.03, which certificate shall constitute a plan of complete
liquidation of each of the Subsidiary REMIC and the Master REMIC within the
meaning of Section 860F of the Code, and the Trustee shall promptly sign such
certification and release to the Servicer, the Mortgage Loan Files, the Contract
Files and Land-and-Home Contract Files pertaining to the Contracts being
repurchased.
(c) Reserved
(d) The Servicer shall notify the Trustee no later than two Business Days
after the Determination Date following the first Due Period which includes the
date on which the Pool Principal Balance first becomes less than or equal to 10%
of the sum of the Cut-off Date Pool Principal Balance and the Original
Pre-Funded Amount, to the effect that the Pool Principal Balance is then less
than or equal to 10% of the sum of the Cut-off Date Pool Principal Balance and
the Original Pre-Funded Amount.
(e) If the Servicer has not delivered to the Trustee the notice of
exercise of its purchase option described in subsection (b) by the Distribution
Date occurring in the month following the Determination Date specified in
subsection (d), then promptly after the following Distribution Date the Trustee
shall begin a process for soliciting bids in connection with an auction for the
Assets. The Trustee shall provide the Servicer written notice of such auction at
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least 10 Business Days prior to the date bids must be received in such auction
(the "Auction Date").
If at least three bids are received, the Trustee shall solicit and
resolicit new bids from all participating bidders until only one bid remains or
the remaining bidders decline to resubmit bids. The Trustee shall accept the
highest of such remaining bids if it is equal to or in excess of the greater of
(i) the Minimum Purchase Price and (ii) the fair market value of the Assets and
related property (such amount being referred to as the "Minimum Auction Price").
If less than three bids are received or the highest bid after the resolicitation
process is completed is not equal to or in excess of the Minimum Auction Price,
the Trustee shall not consummate such sale. If at least three bids are not
received, the Seller, at the Trustee's request, shall supply the Trustee will
the names of parties from whom to solicit such bids; provided, that the Trustee
shall not be responsible if less than three or no bidders submit bids for the
Assets and the other trust assets. If a bid meeting the Minimum Purchase Price
is received, then the Trustee may, and if so requested by the Servicer shall, at
the expense of the Trust, consult with a financial advisor, which may be an
underwriter of the Certificates, to determine if the fair market value of the
Assets and related property has been offered. The Trustee may hire an agent at
the expense of the Trust to conduct such Auction.
If the first auction conducted by the Trustee does not produce any bid at
least equal to the Minimum Auction Price, then the Trustee shall, beginning on
the Distribution Date occurring approximately three months after the Auction
Date for the failed first auction, commence another auction in accordance with
the requirement of this subsection (e). If such second auction does not produce
any bid at least equal to the Minimum Auction Price, then the Trustee shall,
beginning on the Distribution Date occurring approximately three months after
the Auction Date for the failed second auction, commence another auction in
accordance with the requirements of this subsection (e), and shall continue to
conduct similar auctions approximately every three months thereafter until the
earliest of (i) delivery by the Servicer of notice of exercise of its purchase
option under subsection (a), (ii) receipt by the Trustee of a bid meeting the
conditions specified in the preceding paragraph, or (iii) the Distribution Date
on which the principal balance of all the Assets is reduced to zero.
If the Trustee receives a bid meeting the conditions specified in this
subsection (e), then the Trustee's written acceptance of such bid shall
constitute a plan of complete liquidation within the meaning of Section 860F of
the Code, and the Trustee shall release to the winning bidder, upon payment of
the bid purchase price, the Asset Files pertaining to the Assets being
purchased.
(f) If the Servicer has not delivered to the Trustee the notice of
exercise of its purchase option described in subsection (b) by the Distribution
Date occurring in the month following the Determination Date specified in
subsection (d), then on the following Distribution Date and each Distribution
Date thereafter (each, an "Additional Principal Payment Date") the Class M-1,
Class M-2 and Class B-1 Certificates shall be entitled to receive the
Distributable Excess Spread, allocated among such classes pro rata based upon
the outstanding Principal Balance of each such Class on each such Distribution
Date until each such Principal Balance is reduced to zero and thereafter the
Class A Certificates then outstanding shall be entitled to receive the
Distributable Excess Spread, allocated among such classes pro rata based upon
the
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outstanding Principal Balance of each such Class on each such Distribution Date
until each such Principal Balance is reduced to zero.
SECTION 8.06. [Reserved]
SECTION 8.07. [Pre-Funding Account.]
(a) [On or before the Closing Date, the Trustee shall establish the
Pre-Funding Account on behalf of the Trust, which must be an Eligible Account.
The Pre-Funding Account shall be entitled "Pre-Funding Account,
[_____________________________] as Trustee for the benefit of holders of Origen
Residential Pass-Through Certificates, Series 200[__] - [__]]." The Trustee
shall maintain within the Pre-Funding Account two subaccounts, the Pre-Funding
Subaccount and the Undelivered Asset Subaccount. The Undelivered Asset
Subaccount pertains to those Land-and-Home Contracts transferred to the Trust on
the Closing Date that are Undelivered Assets. Funds deposited in the Pre-Funding
Account shall be held in trust by the Trustee for the Holders of the
Certificates for the uses and purposes set forth herein.
(b) The Trustee shall deposit in the Pre-Funding Subaccount the amount
received from the Seller pursuant to Section 2.02(19). Amounts on deposit in the
Pre-Funding Subaccount shall be withdrawn by the Trustee as follows:
(i) On any Subsequent Transfer Date, the Trustee shall withdraw an
amount equal to 100% of the Cut-off Date Principal Balance of
each Subsequent Asset transferred and assigned to the Trustee
on such Subsequent Transfer Date and pay such amount to or
upon the order of the Seller upon satisfaction of the
conditions set forth in Section 2.03(b) with respect to such
transfer and assignment.
(ii) On the Business Day immediately preceding the Post-Funding
Distribution Date, the Trustee shall deposit into the
Distribution Account any amounts remaining in the Pre-Funding
Subaccount, net of investment earnings.
(c) The Trustee shall deposit in the Undelivered Asset Subaccount the
amount received from the Seller pursuant to Section 2.02(20). Amounts on deposit
in the Undelivered Asset Subaccount shall be withdrawn by the Trustee as
follows:
(i) If the Seller delivers the related Land-and-Home Contract File
for an Undelivered Asset to the Trustee at least two Business
Days before the last day of the Pre-Funding Period, the
Trustee shall withdraw an amount equal to 100% of the Cut-off
Date Principal Balance of such Contract and pay such amount to
or upon the order of the Seller.
(ii) [Reserved]
(iii) The Seller shall give the Trustee telephonic notice of its
intended delivery of Land-and-Home Contract Files. The Trustee
will use reasonable efforts
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to process the Land-and-Home Contract Files and remit any
amount payable for them to the Seller in a timely manner.
(iv) On the Business Day immediately preceding the Post-Funding
Distribution Date, the Trustee shall deposit into the
Distribution Account any amounts remaining in the Undelivered
Asset Subaccount, net of investment earnings.
(d) The Pre-Funding Account shall be part of the Trust but not part of the
Master REMIC or Subsidiary REMIC. The Trustee on behalf of the Trust shall be
the legal owner of the Pre-Funding Account. The Seller shall be the beneficial
owner of the Pre-Funding Account, subject to the foregoing power of the Trustee
to transfer amounts in the Pre-Funding Account to the Distribution Account.
Funds in the Pre-Funding Account shall, at the direction of the Servicer, be
invested in Eligible Investments of the kind described in clauses (i) and
(ii)(A) of the definition of "Eligible Investment" and that mature no later than
the Business Day prior to the next succeeding Distribution Date. All amounts
earned on deposits in the Pre-Funding Account shall be taxable to the Seller.
The Trustee shall release to the Seller all investment earnings in the
Pre-Funding Account.]
SECTION 8.08. The Distribution Account.
(a) On or before the Closing Date, the Trustee shall establish the
Distribution Account on behalf of the Trust, which must be an Eligible Account.
The Distribution Account shall be entitled "Distribution Account,
[___________________________] as Trustee for the benefit of holders of Origen
Residential Pass-Through Certificates, Series 200[__] - [__]].
(b) Withdrawals from the Distribution Account shall be made on the
Distribution Date for the purpose of making the payments described in Section
8.03(a). Funds in the Distribution Account shall remain uninvested.
(c) If at any time the Trustee receives notice (from Fitch, Xxxxx'x or the
Servicer or otherwise) that the Distribution Account has ceased to be an
Eligible Account, the Trustee must, as soon as practicable but in no event later
than 5 Business Days of the Trustee's receipt of such notice, transfer the
Distribution Account and all funds therein to an Eligible Account. Following any
such transfer, the Trustee must notify each of Fitch, Xxxxx'x and the Servicer
of the location of the Distribution Account.
SECTION 8.09. Trustee Reimbursement Account.
(a) On or before the Closing Date, the Trustee shall establish the Trustee
Reimbursement Account, which must be an Eligible Account. The Trustee
Reimbursement Account shall be entitled "Trustee Reimbursement Account, Bank
One, National Association." The Trustee Reimbursement Account will not be a part
of the Trust or any REMIC created hereunder. The Certificateholders and the
Depositor shall have no rights to the amounts on deposit in the Trustee
Reimbursement Account.
(b) On the Closing Date, the Seller shall deposit $50,000 to the Trustee
Reimbursement Account. The amounts on deposit in the Trustee Reimbursement
Account shall,
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upon direction from the Seller, be invested in Eligible Investments and any
income realized on those amounts shall be payable to the Seller and the Seller
shall reimburse the Trustee Reimbursement Account for any losses incurred on
such investments. If the Seller fails to give direction to the Trustee, the
Trustee shall invest such amounts pursuant to clause (viii) of the definition of
"Eligible Investments." Upon termination of the Trust, any amounts remaining in
the Trustee Reimbursement Account, to the extent not otherwise required to
reimburse the Trustee for amounts due and owing to it hereunder, shall be paid
to the Seller.
ARTICLE IX
THE CERTIFICATES
SECTION 9.01. The Certificates.
(a) The Class A, the Class M, the Class B, the Class X and the Class R
Certificates shall be substantially in the forms set forth in Xxxxxxxx X, X,
X-0, X-0, and C-3, respectively, and shall, on original issue, be executed by
the Trustee on behalf of the Trust to or upon the order of the Seller. The Class
A, the Class M, and the Class B Certificates shall be evidenced by (i) one or
more Class A-1 Certificates representing $[__________] initial aggregate
principal balance, (ii) one or more Class A-2 Certificates representing
$[__________] initial aggregate principal balance, (iii) one or more Class A-3
Certificates representing $[__________] initial aggregate principal balance,
(iv) one or more Class A-4 Certificates representing $[_________] initial
aggregate principal balance, (v) one or more Class A-5 Certificates representing
$[_________] initial aggregate principal balance, (vi) one or more Class A-6
Certificates representing $[___________] initial aggregate principal balance,
(vii) one or more Class A-7 Certificates, representing $[___________] initial
aggregate principal balance, (viii) one or more Class M-1 Certificates
representing $[___________] initial aggregate principal balance, (ix) one or
more Class M-2 Certificates representing $[___________] initial aggregate
principal balance, (x) one or more Class B-1 Certificates representing
$[___________] initial aggregate principal balance, beneficial ownership of such
Classes of Certificates to be held through Book-Entry Certificates in minimum
dollar denominations of $1,000 and integral dollar multiples of $1 in excess
thereof. The Class X, and Class R Certificates shall be issuable in Percentage
Interests and shall each be evidenced by a single certificate.
(b) The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature on behalf of the Trustee by a Responsible Officer.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Trustee shall bind the Trust, notwithstanding that such individuals or any
of them have ceased to be so authorized prior to the authentication and delivery
of such Certificates or did not hold such offices at the date of such
Certificate. No Certificate shall be entitled to any benefit under this
Agreement or be valid for any purpose, unless such Certificate shall have been
manually authenticated by an authorized officer of the Trustee substantially in
the form provided for herein, and such authentication upon any Certificate shall
be conclusive evidence, and the only evidence, that such Certificate has been
duly authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication. Subject to Section 9.02(c), the Regular
Certificates shall be Book-Entry Certificates. The Class R Certificates shall
not be Book-Entry Certificates.
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The Trustee on behalf of the Trust shall cause to be executed,
authenticated and delivered on the Closing Date to or upon the order of the
Depositor, in exchange for the Mortgage Loans, concurrently with the sale,
assignment and conveyance to the Trustee of the Mortgage Loans, each Class of
Regular Certificates in authorized denominations and the Class R Certificates,
together evidencing the ownership of the entire Trust.
SECTION 9.02. Registration of Transfer and Exchange of Certificates.
(a) The Certificate Registrar shall cause to be kept at the Corporate
Trust Office a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Certificate Registrar shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided. The Trustee shall initially serve as Certificate Registrar for
the purpose of registering Certificates and transfers and exchanges of
Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate at any
office or agency of the Certificate Registrar maintained for such purpose
pursuant to the foregoing paragraph and, in the case of a Class R Certificate,
upon satisfaction of the conditions set forth below, the Trustee on behalf of
the Trust shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same aggregate
Percentage Interest.
(b) Except as provided in paragraph (c) below, the Book-Entry Certificates
shall at all times remain registered in the name of the Depository or its
nominee and at all times: (i) registration of such Certificates may not be
transferred by the Trustee except to another Depository or its nominee; (ii) the
Depository shall maintain book-entry records with respect to the Certificate
Owners and with respect to ownership and transfers of such Certificates; (iii)
ownership and transfers of registration of such Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository as representative of the Certificate Owners of the Certificates for
purposes of exercising the rights of Holders under this Agreement, and requests
and directions for and votes of such representative shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and Persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners; and (vii) the
direct and indirect participants of the Depository shall have no rights under
this Agreement under or with respect to any of the Certificates held on their
behalf by the Depository, and the Depository may be treated by the Trustee and
its agents, employees, officers and directors as the absolute owner of the
Certificates for all purposes whatsoever.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owners. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners
that it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures. The parties hereto are
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hereby authorized to execute a Letter of Representations with the Depository or
take such other action as may be necessary or desirable to register a Book-Entry
Certificate to the Depository. In the event of any conflict between the terms of
any such Letter of Representation and this Agreement the terms of this Agreement
shall control.
(c) If (i) (x) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to discharge properly
its responsibilities as Depository and (y) the Trustee or the Depositor is
unable to locate a qualified successor, (ii) the Depositor, at its sole option,
with the consent of the Trustee, elects to terminate the book-entry system
through the Depository or (iii) after the occurrence of an Event of Termination,
the Certificate Owners of each Class of Regular Certificates representing
Percentage Interests aggregating not less than 51% advises the Trustee and
Depository through the Financial Intermediaries and the Depository Participants
in writing that the continuation of a book-entry system through the Depository
to the exclusion of definitive, fully registered certificates (the "Definitive
Certificates") to Certificate Owners is no longer in the best interests of the
Certificate Owners, upon surrender to the Certificate Registrar of each Class of
Regular Certificates by the Depository, accompanied by registration instructions
from the Depository for registration, the Trustee shall, at the Depositor's
expense, in the case of (ii) above, or the Seller's expense, in the case of (i)
and (iii) above, execute on behalf of the Trust and authenticate the Definitive
Certificates. Neither the Depositor nor the Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, the Trustee, the Certificate Registrar, the Servicer, any Paying
Agent and the Depositor shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
(d) Except with respect to the initial transfer of the Class X and Class R
Certificates (together, the "Private Certificates") by the Depositor to the
Seller (or an affiliate thereof), no transfer, sale, pledge or other disposition
of any Private Certificate shall be made unless (x) except to the extent such
transfer is made to an entity the equity of which is owned by the Seller or an
affiliate of the Seller, and (y) such disposition is exempt from the
registration requirements of the Securities Act of 1933, as amended (the "1933
Act"), and any applicable state securities laws or is made in accordance with
the 1933 Act and laws. In the event of any such transfer, other than the
transfer of the Tax Matters Person Residual Interest (i) unless such transfer is
made in reliance upon Rule 144A (as evidenced by the investment letter delivered
to the Trustee, in substantially the form attached hereto as Exhibit J) under
the 1933 Act, the Trustee and the Depositor shall require a written Opinion of
Counsel (which may be in-house counsel) acceptable to and in form reasonably
satisfactory to the Trustee and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall not be an expense of the Trustee or the Depositor or
(ii) the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached hereto as Exhibit K) and the
transferee to execute an investment letter (in substantially the form attached
hereto as Exhibit J) acceptable to and in form reasonably satisfactory to the
Depositor and the Trustee certifying to the Depositor and the Trustee the facts
surrounding such transfer, which investment letter shall not be an expense of
the Trustee or the Depositor. The Holder of a Private Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee
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and the Depositor against any liability that may result if the transfer is not
so exempt or is not made in accordance with such federal and state laws.
Except with respect to the initial transfer of the ERISA-Restricted
Certificates by the Depositor to the Seller (or an affiliate thereof), no
transfer of an ERISA-Restricted Certificate shall be made unless the Trustee
shall have received a representation from the transferee of such Certificate,
acceptable to and in form satisfactory to the Trustee and the Depositor, (such
requirement is satisfied by the Trustee's receipt of a representation letter
from the transferee substantially in the form of Exhibit S hereto, as
appropriate), to the effect that either (i) such transferee is not an employee
benefit plan or arrangement subject to Section 406 of ERISA or a plan subject to
Section 4975 of the Code, nor a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement to effect such
transfer or (ii) in the case of an ERISA-Restricted Certificate that has been
the subject of an ERISA-Qualifying Underwriting, other than a Class R
Certificate, a representation that the purchaser is an insurance company which
is purchasing such Certificates with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Certificates are covered under Sections I and III of PTCE 95-60
or (iii) in the case of any such ERISA-Restricted Certificate presented for
registration in the name of an employee benefit plan subject to ERISA or a plan
or arrangement subject to Section 4975 of the Code (or comparable provisions of
any subsequent enactments), or a trustee of any such plan or any other person
acting on behalf of any such plan or arrangement or using such plan's or
arrangement's assets, an Opinion of Counsel in form and substance satisfactory
to the Trustee which Opinion of Counsel shall not be an expense of either the
Trustee or the Trust, addressed to the Trustee, to the effect that the purchase
or holding of such ERISA-Restricted Certificate will not result in the assets of
the Trust being deemed to be "plan assets" and subject to the prohibited
transaction provisions of ERISA and the Code and will not subject the Trustee to
any obligation in addition to those expressly undertaken in this Agreement or to
any liability. For purposes of clause (i) and (ii) of the preceding sentence,
such representation shall be deemed to have been made to the Trustee by the
transferee's acceptance of an ERISA-Restricted Certificate (or the acceptance by
a Certificate Owner of the beneficial interest in any such Class of
ERISA-Restricted Certificates) in book-entry form unless the Trustee shall have
received from the transferee an alternative representation acceptable in form
and substance to the Depositor or an Opinion of Counsel described in clause
(iii). Notwithstanding anything else to the contrary herein, any purported
transfer of an ERISA-Restricted Certificate to or on behalf of an employee
benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975
of the Code without the delivery to the Trustee of an Opinion of Counsel in form
and substance satisfactory to the Trustee as described above shall be void and
of no effect. The Trustee shall be under no liability to any Person for any
registration of transfer of any ERISA-Restricted Certificate that is in fact not
permitted by this Section 9.02(d) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements. The
Trustee shall be entitled, but not obligated, to recover from any Holder of any
ERISA-Restricted Certificate that was in fact an employee benefit plan subject
to Section 406 of ERISA or a plan subject to Section 4975 of the Code or a
Person acting on behalf of any such plan at the time it became a Holder or, at
such subsequent time as it became such a plan or Person acting on behalf of such
a plan, all payments made on such ERISA-Restricted Certificate at and after
either
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such time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Holder of such Certificate that
is not such a plan or Person acting on behalf of a plan.
Each Person who has or who acquires any Ownership Interest in a Class R
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the following provisions and to have
irrevocably appointed the Depositor or its designee as its attorney-in-fact to
negotiate the terms of any mandatory sale under clause (v) below and to execute
all instruments of transfer and to do all other things necessary in connection
with any such sale, and the rights of each Person acquiring any Ownership
Interest in a Class R Certificate are expressly subject to the following
provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change
in its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Class R
Certificate unless such Ownership Interest is a pro rata
undivided interest.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Class R Certificate, the Trustee shall as a
condition to registration of the transfer, require delivery to
it, in form satisfactory to it, of each of the following:
A. an affidavit in the form of Exhibit T hereto from the
proposed transferee to the effect that such transferee is a Permitted
Transferee and that it is not acquiring its Ownership Interest in the
Class R Certificate that is the subject of the proposed transfer as a
nominee, trustee or agent for any Person who is not a Permitted
Transferee; and
B. a covenant of the proposed transferee to the effect that
the proposed transferee agrees to be bound by and to abide by the transfer
restrictions applicable to the Class R Certificates.
(iv) Any attempted or purported transfer of any Ownership Interest
in a Class R Certificate in violation of the provisions of
this Section shall be absolutely null and void and shall vest
no rights in the purported transferee. If any purported
transferee shall, in violation of the provisions of this
Section, become a Holder of a Class R Certificate, then the
prior Holder of such Class R Certificate that is a Permitted
Transferee shall, upon discovery that the registration of
transfer of such Class R Certificate was not in fact permitted
by this Section, be restored to all rights as Holder thereof
retroactive to the date of registration of transfer of such
Class R Certificate. The Trustee shall be under no liability
to any Person for any registration of transfer of a Class R
Certificate that is in fact not permitted by this Section or
for making any distributions due on such Class R Certificate
to the Holder thereof or taking any other action with respect
to
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such Holder under the provisions of this Agreement so long as
the Trustee received the documents specified in clause (iii).
The Trustee shall be entitled to recover from any Holder of a
Class R Certificate that was in fact not a Permitted
Transferee at the time such distributions were made all
distributions made on such Class R Certificate. Any such
distributions so recovered by the Trustee shall be distributed
and delivered by the Trustee to the prior Holder of such Class
R Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Class R Certificate in violation of
the restrictions in this Section, then the Trustee shall have
the right but not the obligation, without notice to the Holder
of such Class R Certificate or any other Person having an
Ownership Interest therein, to notify the Depositor to arrange
for the sale of such Class R Certificate. The proceeds of such
sale, net of commissions (which may include commissions
payable to the Depositor or its affiliates in connection with
such sale), expenses and taxes due, if any, will be remitted
by the Trustee to the previous Holder of such Class R
Certificate that is a Permitted Transferee, except that in the
event that the Trustee determines that the Holder of such
Class R Certificate may be liable for any amount due under
this Section or any other provisions of this Agreement, the
Trustee may withhold a corresponding amount from such
remittance as security for such claim. The terms and
conditions of any sale under this clause (v) shall be
determined in the sole discretion of the Trustee and it shall
not be liable to any Person having an Ownership Interest in a
Class R Certificate as a result of its exercise of such
discretion.
(vi) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Class R Certificate in violation of
the restrictions in this Section, then the Trustee will
provide to the Internal Revenue Service, and to the persons
specified in Sections 860E(e)(3) and (6) of the Code,
information needed to compute the tax imposed under Section
860E(e)(5) of the Code on transfers of residual interests to
disqualified organizations.
The foregoing provisions of this Section shall cease to apply to transfers
occurring on or after the date on which there shall have been delivered to the
Trustee, in form satisfactory to the Trustee, (i) written notification from each
Rating Agency that the removal of the restrictions on transfer set forth in this
Section will not cause such Rating Agency to downgrade its rating of the
Certificates and (ii) an Opinion of Counsel to the effect that such removal will
not cause the Trust to fail to qualify as a REMIC. The Servicer shall be the
initial holder of the Tax Matter Person Residual Interest.
(e) No service charge shall be made for any registration of transfer or
exchange of Certificates of any Class, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
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All Certificates surrendered for registration of transfer or exchange
shall be cancelled by the Certificate Registrar and disposed of pursuant to its
standard procedures.
SECTION 9.03. No Charge; Disposition of Void Certificates.
No service charge shall be made to a Certificateholder for any transfer or
exchange of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates. All Certificates
surrendered for transfer and exchange shall be disposed of in a manner approved
by the Trustee.
SECTION 9.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (b) there is delivered to
the Certificate Registrar and the Trustee such security or indemnity as may be
required by each to save it harmless, then in the absence of notice to the
Certificate Registrar or the Trustee that such Certificate has been acquired by
a bona fide purchaser, the Trustee shall execute and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and original denomination. Upon the issuance of any
new Certificate under this Section 9.04, the Trustee may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses connected therewith. Any
duplicate Certificate issued pursuant to this Section 9.04 shall constitute
complete and indefeasible evidence of ownership of the Percentage Interest, as
if originally issued, whether or not the mutilated, destroyed, lost or stolen
Certificate shall be found at any time.
SECTION 9.05. Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of transfer,
the Servicer, the Seller, the Trustee, the Paying Agent and the Certificate
Registrar may treat the person in whose name any Certificate is registered as
the owner of such Certificate for the purpose of receiving remittances pursuant
to Section 8.01 and for all other purposes whatsoever, and none of the Servicer,
the Seller, the Trustee, the Certificate Registrar, the Paying Agent or any
agent of the Servicer, the Seller, the Trustee, the Paying Agent or the
Certificate Registrar shall be affected by notice to the contrary.
SECTION 9.06. Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar will furnish to the Trustee and the Servicer,
within five days after receipt by the Certificate Registrar of a request
therefor from the Trustee in writing, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Certificateholders as of
the most recent Record Date. If Holders of Certificates evidencing, as to any
Class, Percentage Interests representing 25% or more (hereinafter referred to as
"Applicants") apply in writing to the Trustee, and such application states that
the Applicants desire to communicate with other Certificateholders with respect
to their rights under this Agreement or under the Certificates and is
accompanied by a copy of the communication which such Applicants propose to
transmit, then the Trustee shall, within five Business Days after the
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receipt of such application, afford such Applicants access during normal
business hours to the most recent list of Certificateholders held by the
Trustee. If such list is as of a date more than 90 days prior to the date of
receipt of such Applicants' request, the Trustee shall promptly request from the
Certificate Registrar a current list as provided above, and shall afford such
Applicants access to such list promptly upon receipt. Every Certificateholder,
by receiving and holding a Certificate, agrees with the Certificate Registrar
and the Trustee that none of the Seller, the Certificate Registrar or the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Certificateholders hereunder,
regardless of the source from which such information was derived.
SECTION 9.07. Authenticating Agents.
The Trustee may appoint one or more Authenticating Agents with power to
act on its behalf and subject to its direction in the execution and delivery of
the Certificates. For all purposes of this Agreement, the execution and delivery
of Certificates by the Authenticating Agent pursuant to this Section shall be
deemed to be the execution and delivery of Certificates "by the Trustee."
ARTICLE X
INDEMNITIES; CERTAIN MATTERS RELATING to the ORIGINATOR,
THE SELLER, THE SERVICER AND THE DEPOSITOR
SECTION 10.01. Seller's Indemnities.
The Seller will defend and indemnify the Trust, the Trustee, its officers,
directors, employees and agents (including the Custodian, the Paying Agent and
any other agents of the Trustee), the Backup Servicer and the Certificateholders
against any and all costs, expenses, losses, damages, claims and liabilities,
including reasonable fees and expenses of counsel and expenses of litigation of
any third-party claims (i) arising out of or resulting from the origination of
any Asset (including but not limited to truth in lending requirements) or the
servicing of such Asset prior to its transfer to the Trust (but only to the
extent such cost, expense, loss, damage, claim or liability is not provided for
by the Seller repurchase of such Asset pursuant to Section 3.06) or (ii) arising
out of or resulting from the use or ownership of any Manufactured Homes or any
Mortgaged Property by the Seller or the Servicer or any Affiliate of either.
Notwithstanding any other provision of this Agreement, the obligation of the
Seller under this Section shall not terminate upon a Service Transfer pursuant
to Article VII, except that the obligation of the Seller under this Section
shall not relate to the actions of any subsequent Servicer after a Service
Transfer.
SECTION 10.02. Liabilities to Obligors.
No obligation or liability to any Obligor under any of the Assets is
intended to be assumed by the Trust, the Trustee, or the Certificateholders
under or as a result of this Agreement and the transactions contemplated hereby
and, to the maximum extent permitted and valid under mandatory provisions of
law, the Trust, the Trustee and the Certificateholders expressly disclaim such
assumption.
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SECTION 10.03. Tax Indemnification.
The Seller agrees to pay, and to indemnify, defend and hold harmless the
Trust, the Trustee (including the Custodian, the Paying Agent and any other
agents of the Trustee) and the Certificateholders from, any taxes which may at
any time be asserted with respect to, and as of the date of, the transfer of the
Assets to the Trust, including, without limitation, any sales, gross receipts,
general corporation, personal property, privilege or license taxes (but not
including any federal, state or other taxes arising out of the creation of the
Trust and the issuance of the Certificates), and costs, expenses and reasonable
counsel fees in defending against the same, whether arising by reason of the
acts to be performed by the Seller or the Servicer under this Agreement.
SECTION 10.04. Servicer's Indemnities.
The Servicer shall indemnify and hold harmless the Trust, the Backup
Servicer and the Trustee and its officers, directors, agents and employees from
and against any loss, liability, expense, damage or injury suffered or sustained
by reason of such Servicer's willful misfeasance, bad faith or negligence in the
performance of its activities in servicing or administering the Assets pursuant
to this Agreement, including, but not limited to, any judgment, award,
settlement, reasonable fees of counsel of its selection and other costs or
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim related to the Servicer's willful misfeasance, bad
faith or negligence. Any such indemnification shall not be payable from the
assets of the Trust. The provisions of this indemnity shall run directly to and
be enforceable by an injured party subject to the limitations hereof. The
provisions of this Section 10.04 shall survive termination of the Agreement.
SECTION 10.05. Operation of Indemnities.
Indemnification under this Article shall include, without limitation,
reasonable fees and expenses of counsel and expenses of litigation. If the
Seller or the Servicer has made any indemnity payments to the Trustee pursuant
to this Article and the Trustee thereafter collects any of such amounts from
others, the Trust will repay such amounts collected to the Seller or the
Servicer, as the case may be, without interest.
SECTION 10.06. Liability of the Originator, the Seller, the Servicer, the
Backup Servicer and the Depositor.
The Originator, the Seller and the Servicer shall be liable in accordance
herewith only to the extent of the obligations specifically imposed upon and
undertaken by the Originator, the Seller or the Servicer, as the case may be,
herein. The Depositor and the Backup Servicer shall be liable in accordance
herewith only to the extent of the obligations specifically imposed upon and
undertaken herein by the Depositor or the Backup Servicer.
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SECTION 10.07. Merger or Consolidation of, or Assumption of the
Obligations of, the Originator, the Seller, the Servicer,
the Backup Servicer or the Depositor.
Any Person into which the Originator, the Seller, the Servicer, the Backup
Servicer or Depositor may be merged or consolidated, or any Person resulting
from any merger, conversion or consolidation to which the Originator, the
Seller, the Servicer, the Backup Servicer or the Depositor shall be a party, or
any Person succeeding to the business of the Originator, the Seller, the
Servicer, the Backup Servicer or the Depositor, shall be the successor of the
Originator, the Seller, the Servicer, the Backup Servicer or the Depositor, as
the case may be, hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor Servicer shall
satisfy all the requirements of an Eligible Servicer.
SECTION 10.08. Limitation on Liability of Servicer, the Backup Servicer,
Others.
Neither the Servicer, the Backup Servicer nor any of the directors or
officers or employees or agents of the Servicer or the Backup Servicer shall be
under any liability to the Trust or the Certificateholders for any action taken
or for refraining from the taking of any action by the Servicer or the Backup
Servicer in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Servicer or the
Backup Servicer or any such Person against any liability which would otherwise
be imposed by reason of its willful misfeasance, bad faith or negligence in the
performance of duties of the Servicer or the Backup Servicer or by reason of its
reckless disregard of its obligations and duties of the Servicer or the Backup
Servicer hereunder; provided, further, that this provision shall not be
construed to entitle the Servicer or the Backup Servicer to indemnity in the
event that amounts advanced by the Servicer or the Backup Servicer to retire any
senior lien exceed Net Liquidation Proceeds realized with respect to the related
Asset. The Servicer, the Backup Servicer and any director or officer or employee
or agent of the Servicer or the Backup Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Servicer, the Backup Servicer and
any director or officer or employee or agent of the Servicer or the Backup
Servicer shall be indemnified by the Trust and held harmless against any loss,
liability or expense incurred in connection with any legal action relating to
this Agreement or the Certificates, other than any loss, liability or expense
related to any specific Asset or Assets (except as any such loss, liability or
expense shall be otherwise reimbursable pursuant to this Agreement) and any
loss, liability or expense incurred by reason of its willful misfeasance, bad
faith or negligence in the performance of duties hereunder or by reason of its
reckless disregard of obligations and duties hereunder; and such amounts shall
be payable only pursuant to Section 8.03(a)(15) after payments to the Regular
Certificateholders for the related Distribution Date. The Servicer or the Backup
Servicer may undertake any such action which it may deem necessary or desirable
in respect of this Agreement, and the rights and duties of the parties hereto
and the interests of the Certificateholders hereunder. In such event, the
reasonable legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust and the Servicer
shall be entitled to be reimbursed therefor only after payments to the Regular
Certificates for the related Distribution Date. The Servicer's or the Backup
Servicer's right to indemnity or reimbursement pursuant to this Section shall
survive any resignation or termination of the Servicer or the Backup Servicer
pursuant to
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Section 10.09 or 7.01 with respect to any losses, expenses, costs or liabilities
arising prior to such resignation or termination (or arising from events that
occurred prior to such resignation or termination). This paragraph shall apply
to the Servicer or the Backup Servicer solely in its capacity as Servicer or the
Backup Servicer hereunder and in no other capacities.
Notwithstanding any provision to the contrary contained in this Agreement,
the parties hereto and the Certificateholders acknowledge and agree that the
Backup Servicer is not assuming and shall not be responsible or liable for any
liabilities, obligations, losses, damages or expenses (including reasonable
attorneys' fees) arising from or related to (i) any act or omission of the
initial Servicer or any prior servicer in its capacity as Servicer on or prior
to the effective Service Transfer Date, (ii) any act or omission of the Trustee,
the initial Servicer, the Seller or the Depositor or any other party to the
Agreement prior to, on or following the Servicer Transfer Date, or (iii) any
breach or default by the initial Servicer, the Seller, the Originator or the
Trustee of their respective duties, obligations, covenants, representations and
warranties contained in this Agreement or in any related document or agreement,
whether such breach or default occurs or occurred prior to, on or following the
Service Transfer Date.
The parties hereto and the Certificateholders acknowledge that the Backup
Servicer has agreed to be Backup Servicer for the limited purpose of servicing
the Assets, and that neither the Backup Servicer nor any of its Affiliates
provides any guarantee or assurance whatsoever regarding the payment of the
Certificates in full, the timing of payment of the Certificates or the
enforceability or collectability of the Assets.
SECTION 10.09. Servicer and Backup Servicer Not to Resign.
Subject to the provisions of Section 10.07, neither the Servicer nor the
Backup Servicer shall resign from the obligations and duties hereby imposed on
it except (i) upon determination that the performance of its obligations or
duties hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities carried
on by it or its subsidiaries or Affiliates, the other activities of the Servicer
so causing such a conflict being of a type and nature carried on by the
Servicer, the Backup Servicer or its subsidiaries or Affiliates at the date of
this Agreement, or (ii) in the case of the Backup Servicer, upon a default in
payment of the fees and other amounts due and payable to the Backup Servicer as
provided in this Agreement, which default is not cured within 15 days following
written notice thereof to the Trustee or (iii) upon satisfaction of the
following conditions: (a) the Servicer or the Backup Servicer, as applicable,
has proposed a successor servicer to the Trustee in writing and such proposed
successor servicer is reasonably acceptable to the Trustee; and (b) each Rating
Agency shall have delivered a letter to the Trustee prior to the appointment of
the successor servicer stating that the proposed appointment of such successor
servicer as Servicer or Backup Servicer, as applicable, hereunder will not
result in the reduction or withdrawal of the then current rating of the Regular
Certificates; provided, however, that no such resignation by the Servicer or the
Backup Servicer under (i) or (iii) above shall become effective until such
successor servicer or Backup Servicer or, in the case of (i) above with respect
to the Servicer, the Backup Servicer shall have assumed the Servicer's
responsibilities and obligations hereunder in accordance with this Agreement or
the Trustee shall have designated a successor servicer in accordance with
Section 7.02. Any such resignation shall not relieve the Servicer or Backup
Servicer of responsibility for any of the obligations specified in Sections
7.01, 7.02, 7.03 and
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7.05(c) or this Article X as specified as obligations that survive the
resignation or termination of the Servicer or the Backup Servicer. Any such
determination permitting the resignation of the Servicer or Backup Servicer
pursuant to clause (i) above shall be evidenced by an Opinion of Counsel to such
effect delivered to the Trustee.
ARTICLE XI
THE TRUSTEE
SECTION 11.01. Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Termination and after
the curing of all Events of Termination which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement. If an Event of Termination has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the conduct
of such person's affairs. Any permissive right of the Trustee enumerated in this
Agreement shall not be construed as a duty.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform as to form to the requirements of this Agreement. If any such instrument
is found not to conform to the requirements of this Agreement in a material
manner, the Trustee shall take such action as it deems appropriate to have the
instrument corrected, and if the instrument is not corrected to its
satisfaction, it will provide notice thereof to the Certificateholders.
Subject to Section 11.03, no provision of this Agreement shall be
construed to relieve the Trustee from liability for its own negligent action,
its own negligent failure to act or its own misconduct; provided, however, that:
(1) Prior to the occurrence of an Event of Termination, and
after the curing of all such Events of Termination which may have
occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Trustee and conforming to the requirements of this Agreement;
(2) The Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer of the Trustee, unless
it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
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(3) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of the Certificateholders
with aggregate Percentage Interests representing 25% or more of the
Trust relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Agreement;
and
(4) The Trustee shall not be charged with knowledge of any
event referred to in Section 7.01 unless a Responsible Officer of
the Trustee at the Corporate Trust Office obtains actual knowledge
of such event or the Trustee receives written notice of such event
from the Servicer or the Holders of Certificates evidencing, as to
any Class, Percentage Interests representing 25% or more.
None of the provisions contained in this Agreement shall in any event
require the Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Seller or the Servicer under this Agreement.
The Trustee shall not be required to expend or risk its own funds or otherwise
incur financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if there is reasonable ground
for believing that the repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
SECTION 11.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 11.01:
(a) The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer's Certificate, certificate of a
Servicing Officer, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) The Trustee may consult with its own counsel and any opinion of any
such counsel or counsel for the Seller or the Servicer shall be full and
complete authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such Opinion of
Counsel;
(c) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Agreement, or to institute, conduct or defend any
litigation hereunder or in relation hereto, at the request, order or direction
of any of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby; provided, however, that nothing contained herein
shall relieve the Trustee of the obligations, upon the occurrence of an Event of
Termination (which has not been cured or waived), to exercise such of the rights
and powers vested in it by this Agreement, and to use the same degree of care
and skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs;
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(d) Prior to the occurrence of an Event of Termination and after the
curing of all Events of Termination which may have occurred, the Trustee shall
not be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates evidencing, as to any
Class, Percentage Interests representing 25% or more; provided, however, that if
the payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such cost, expense or liability as a condition to
so proceeding. The reasonable expense of every such examination shall be paid by
the Servicer or, if paid by the Trustee, shall be reimbursed by the Servicer
upon demand; and
(e) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian and shall not be liable for any acts or omissions of
such agents, attorneys or custodians if appointed by it with due care hereunder.
SECTION 11.03. Trustee Not Liable for Certificates or Assets.
The recitals contained herein and in the Certificates (other than the
signature of the Trustee on the Certificates, the acknowledgments of the Trustee
contained in Article II and the representations and warranties of the Trustee in
Section 11.14) shall be taken as the statements of the Depositor and the Trustee
does not assume any responsibility for their correctness. The Trustee makes no
representations or warranties as to the validity or sufficiency of this
Agreement (other than as specifically set forth in Section 11.14) or of the
Certificates (other than the signature of the Trustee on the Certificates) or of
any Asset or related document or any information provided by the Servicer. The
Trustee shall not be accountable for the use or application by the Depositor of
any of the Certificates or of the proceeds of such Certificates, or for the use
or application of any funds paid to the Depositor or the Servicer in respect of
the Assets or deposited in or withdrawn from the Collection Account by the
Servicer.
SECTION 11.04. Rights of Certificateholders to Direct Trustee and to Waive
Event of Termination.
Holders of Class A Certificates, Holders of Class M Certificates and
Holders of Class B-1 Certificates evidencing, as to each such Class, Percentage
Interests representing 25% or more shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee; provided,
however, that, subject to Section 11.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee being advised by counsel
determines that the action so directed may not lawfully be taken, or if the
Trustee in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceedings so directed would be illegal or involve
it in personal liability or be unduly prejudicial to the rights of
Certificateholders not parties to such direction; and provided further that
nothing in this Agreement shall impair the right of the Trustee to take any
action deemed proper by the Trustee and which is not inconsistent with such
direction by the Certificateholders; and provided further that the Trustee shall
instead follow the
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directions of Holders of Class A Certificates, Holders of Class M Certificates
and Holders of Class B-1 Certificates evidencing, as to each such Class,
Percentage Interests aggregating 51% or more whenever it receives conflicting
directions from Class A Certificateholders, Class M Certificateholders and Class
B-1 Certificateholders. Holders of Class A Certificates, Holders of Class M
Certificates and Holders of Class B-1 Certificates evidencing, as to each such
Class, Percentage Interests representing 51% or more may on behalf of
Certificateholders waive any past Event of Termination hereunder and its
consequences, except a default in respect of a covenant or provision hereof
which under Section 12.07 cannot be modified or amended without the consent of
all Certificateholders, and upon any such waiver, such Event of Termination
shall cease to exist and shall be deemed to have been cured for every purpose of
this Agreement; but no such waiver shall extend to any subsequent or other Event
of Termination or impair any right consequent thereon. Following the Class M-2
Cross-Over Date, if all distributions payable to the Class A Certificateholders
and the Class M Certificateholders have either been made or provided for in
accordance with this Agreement, then the Holders of Class B-1 Certificates may
exercise the rights given to the Class A Certificateholders, the Class M
Certificateholders and Class B-1 Certificateholders under this Section.
SECTION 11.05. Trustee's Fees and Expenses.
In accordance with Section 8.03(a) the Trustee shall be paid and
reimbursed:
(1) from the Trust for the amount of the Trustee Fee for all
services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust) including the services provided in
connection with any auctions pursuant to Section 8.05(e);
(2) from amounts on deposit in the Trustee Reimbursement
Expense Account for the amount of all reasonable expenses and
disbursements incurred or made by the Trustee in accordance with any
provision of this Agreement (including the reasonable compensation
and the expenses and disbursements of its agents and counsel, and
reasonable compensation expenses and disbursements in connection
with any auctions pursuant to Section 8.05(e)), except any such
expense or disbursement as may be attributable to its negligence or
bad faith; and
(3) from amounts on deposit in the Trustee Reimbursement
Expense Account for the amount of any indemnification owed to the
Trustee or any of its directors, officers, employees, affiliates or
agents pursuant to Section 11.05(b) below.
The covenants in this Section 11.05 shall be for the benefit of the
Trustee in its capacities as Trustee, Paying Agent, Custodian and Certificate
Registrar hereunder, and shall survive the termination of this Agreement.
(b) The Trustee will be entitled to indemnification from amounts on
deposit in the Trustee Reimbursement Expense Account and will be held harmless
by the Trust against any loss, liability, claim, demand, or expense relating to
this Agreement, the Assets or the
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Certificates other than any loss, liability, or expense incurred by reason of
willful misfeasance, bad faith, or negligence in the performance of duties or by
reason of negligent disregard of obligations and duties.
Neither the Trustee nor any of its respective directors, officers,
employees, affiliates, or agents, will be under any liability to the Trust or
the Certificateholders for any action taken or for refraining from the taking of
any action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that the Trustee will not be protected against any breach of
representations or warranties made herein or any liability which would otherwise
be imposed by reason of willful misfeasance, bad faith, or negligence in the
performance of duties herein or by reason of negligent disregard of obligations
and duties hereunder.
(c) The Trustee shall deliver to the Depositor, the Seller and the
Servicer a report detailing all payments from the Trust made with respect to
legal fees on account of third-party claims. The report shall be delivered
monthly, promptly following any month in which such payments were made.
(d) If, but only if, the Seller fails to pay any amounts due from it to
the Trustee under this Section 11.05 promptly after demand therefor by the
Trustee, the Trustee may reimburse itself for such amounts from funds on deposit
in the Trustee Reimbursement Account. Upon such reimbursement, the reimbursed
amounts shall be paid for all purposes.
SECTION 11.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a financial institution
organized and doing business under the laws of the United States of America or
any State, authorized under such laws to exercise corporate trust powers and a
Title I approved lender pursuant to FHA Regulations, shall not be an Affiliate
of the Seller, and shall have a combined capital and surplus of at least
$50,000,000 or shall be a member of a bank holding system the aggregate combined
capital and surplus of which is $50,000,000; provided, that the Trustee's
separate capital and surplus shall at all times be at least the amount required
by Section 310(a)(2) of the Trust Indenture Act of 1939, as amended. If such
Person publishes reports of condition at least annually, pursuant to law or to
the requirements of a supervising or examining authority, then for the purposes
of this Section 11.06, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In addition, the Trustee shall at all times
have a long-term deposit rating (or, if the Trustee is a wholly owned subsidiary
of a bank holding company system and not rated, the bank holding company shall
have a rating from each Rating Agency in one of its four highest rating
categories, or as shall be otherwise acceptable to each Rating Agency. In case
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 11.06, the Trustee shall resign immediately in the
manner and with the effect specified in Section 11.07.
SECTION 11.07. Resignation or Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Depositor, the Servicer
and the Seller. A copy of any such notice shall be sent to each Rating Agency.
Upon receiving such notice of resignation, the Seller
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shall promptly appoint a successor Trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to each of the Servicer and the
Seller and one copy to the successor Trustee. If no successor Trustee shall have
been so appointed and shall have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 11.06 and shall fail to resign after written request
therefor by the Depositor, or if at any time the Trustee shall be legally unable
to act, or shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then the Depositor may remove
the Trustee. If the Depositor shall have removed the Trustee under the authority
of the immediately preceding sentence, the Depositor shall promptly appoint a
successor Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor Trustee.
Holders of Class A Certificates, Holders of Class M Certificates and
Holders of Class B-1 Certificates evidencing, as to each such Class, Percentage
Interests aggregating 51% or more may at any time remove the Trustee and appoint
a successor by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of such
instruments shall be delivered to the Depositor, one complete set to the Trustee
so removed and one complete set to the successor so appointed. A copy of such
instrument shall be delivered to the Certificateholders, the Seller and the
Servicer by the Depositor.
Any resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section 11.07 shall not become
effective until acceptance of appointment by the successor Trustee as provided
in Section 11.08.
SECTION 11.08. Successor Trustee.
Any successor Trustee appointed as provided in Section 11.07 shall
execute, acknowledge and deliver to the Servicer, the Seller and to its
predecessor Trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee. The predecessor Trustee shall deliver or cause to be delivered
to the successor Trustee the Assets and Asset Files and any related documents
and statements held by it hereunder; and, if the Land-and-Home Contract Files
are then held by a custodian pursuant to a custodial agreement, the predecessor
Trustee and the custodian shall amend such custodial agreement to make the
successor Trustee the successor to the predecessor Trustee thereunder; and the
Servicer, the Seller and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Trustee all such rights,
powers, duties and obligations.
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No successor Trustee shall accept appointment as provided in this Section
11.08 unless at the time of such acceptance such successor Trustee shall be
eligible under the provisions of Section 11.06.
Upon acceptance of appointment by a successor Trustee as provided in this
Section 11.08, the Servicer shall cause notice of the succession of such Trustee
hereunder to be mailed to each Certificateholder at their addresses as shown in
the Certificate Register. If the Servicer fails to mail such notice within ten
days after acceptance of appointment by the successor Trustee, the successor
Trustee shall cause such notice to be mailed at the expense of the Servicer.
SECTION 11.09. Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such Person shall be eligible under the provisions
of Section 11.06, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. The Trustee shall promptly notify each Rating Agency in the
event it is a party to any merger, conversion or consolidation.
SECTION 11.10. Tax Returns.
Upon the Trustee's request, the Servicer will furnish the Trustee with all
such information as the Trustee may reasonably require in connection with
preparing all tax returns of the Subsidiary REMIC and the Master REMIC and the
Trustee shall execute such returns.
SECTION 11.11. Obligor Claims.
In connection with any offset defenses, or affirmative claims for
recovery, asserted in legal actions brought by Obligors under one or more
Contract based upon provisions therein complying with, or upon other rights or
remedies arising from, any legal requirements applicable to the Assets,
including, without limitation, the Federal Trade Commission's Trade Regulation
Rule Concerning Preservation of Consumers' Claims and Defenses (16 C.F.R.
Section 433) as amended from time to time:
(1) The Trustee is not, and shall not be deemed to be,
either in any individual capacity, as trustee hereunder or
otherwise, a creditor, or a joint venturer with or an Affiliate of,
or acting in concert or cooperation with, any seller of home
improvements, in the arrangement, origination or making of Assets.
The Trustee is the holder of the Assets only as trustee on behalf of
the Certificateholders, and not as a principal or in any individual
or personal capacity;
(2) The Trustee shall not be personally liable for or
obligated to pay Obligors any affirmative claims asserted thereby,
or responsible to Certificateholders for any offset defense amounts
applied against Asset payments, pursuant to such legal actions;
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(3) The Trustee will pay, solely from available Trust
monies, affirmative claims for recovery by Obligors only pursuant to
final judicial orders or judgments, or judicially approved
settlement agreements, resulting from such legal actions;
(4) The Trustee will comply with judicial orders and
judgments which require its actions or cooperation in connection
with Obligors' legal actions to recover affirmative claims against
Certificateholders.
(5) The Trustee will cooperate with and assist
Certificateholders in their defense of legal actions by Obligors to
recover affirmative claims if such cooperation and assistance is not
contrary to the interests of the Trustee as a party to such legal
actions and if the Trustee is satisfactorily indemnified for all
liability, costs and expenses arising therefrom; and
SECTION 11.12. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for the purpose
of meeting any legal requirements of any jurisdiction in which any part of the
Trust or property securing the same may at the time be located, the Servicer and
the Trustee, acting jointly shall have the power and shall execute and deliver
all instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust, and to vest in such Person
or Persons, in such capacity, such title to the Trust, or any part thereof, and,
subject to the other provisions of this Section , such powers, duties,
obligations, rights and trusts as the Servicer and the Trustee ay consider
necessary or desirable. If the Servicer shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, or in
case an Event of Termination shall have occurred and be continuing, the Trustee
alone shall have the power to make such appointment. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 11.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 11.08 hereof. Any reasonable and necessary expense of the
Trustee related to the appointment of a co-trustee or a separate trustee for the
limited purpose of performing the Trustee's duties pursuant to this Section
11.12 shall be reimbursable from the Trust.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 11.12 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed by the Trustee (whether as
Trustee hereunder or as successor to the defaulting Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed by such separate trustee or co-trustee at the direction
of the Trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of
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them. Every instrument appointing any separate trustee or co-trustee shall refer
to this Agreement and the conditions of this Article XI. Each separate trustee
and co-trustee, upon its acceptance of the trust conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 11.13. Agents of Trustee.
To the extent not prohibited by law and not inconsistent with the terms of
this Agreement (including, without limitation, Section 11.12), the Trustee may
appoint one or more agents to carry out ministerial matters on behalf of the
Trustee under this Agreement.
SECTION 11.14. Representations and Warranties of the Trustee.
The Trustee hereby represents and warrants to the Servicer and the
Depositor, as of the Closing Date, that:
(a) It is a [ ] duly organized, validly existing and in good standing
under the laws of the United States.
(b) The execution and delivery of this Agreement by it, and the
performance and compliance with the terms of this Agreement by it, will not
violate its charter or articles of association or bylaws or to its best
knowledge constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(c) It has the full power and authority to enter into and consummate all
transactions contemplated by this Agreement, has duly authorized the execution,
delivery and performance of this Agreement, and has duly executed and delivered
this Agreement.
(d) This Agreement, assuming due authorization, execution and delivery by
the other parties, constitutes a valid, legal and binding obligation of it,
enforceable against it in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, receivership, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
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ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Servicer and Backup Servicer Not to Assign Duties or
Resign; Delegation of Servicing Functions.
Neither the Servicer nor the Backup Servicer may sell or assign its rights
and duties as Servicer or Backup Servicer, as applicable, hereunder, except as
expressly provided for herein; provided, that the Servicer may pledge or assign
the right to receive all or any portion of the Monthly Servicing Fee payable to
it and/or reimbursements for Outstanding Advance Amounts and Nonrecoverable
Advances.
SECTION 12.02. Maintenance of Office or Agency.
The Trustee will maintain in [______________, ___________], an office or
agency where Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Trustee in respect of the
Certificates and this Agreement may be served. On the date hereof the Trustee's
office for such purposes is located at [______________________________________].
The Trustee will give prompt written notice to Certificateholders of any change
in the location of the Certificate Register or any such office or agency.
SECTION 12.03. Termination.
(a) This Agreement shall terminate (after distribution of all amounts due
to Certificateholders pursuant to Sections 8.01 and 8.03) on the earlier of (a)
the Distribution Date on which the Pool Principal Balance is reduced to zero and
all amounts payable to Certificateholders on such Distribution Date have been
distributed to Certificateholders and (b) the Distribution Date on which the
Servicer purchases the Assets pursuant to Section 8.05; provided, that in no
event shall the trust created hereby continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late Ambassador of the United States to the Court of St. Xxxxx, living on the
date hereof; and provided further, that the Servicer's, the Originator's, and
the Seller's representations and warranties and indemnities by the Seller, the
Originator and the Servicer shall survive termination.
(b) Notice of any termination, specifying the Final Distribution Date
(which shall be a date that would otherwise be a Distribution Date) upon which
all Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and cancellation, shall be given promptly by
the Trustee if the termination is the result of an Auction Sale or by the
Trustee (upon direction by the Servicer ten days prior to the date such notice
is to be mailed) if the termination is the result of a purchase by the Servicer
by letter to Fitch, Xxxxx'x and the Certificateholders mailed no later than the
fifth Business Day of the month of the Final Distribution Date specifying (1)
the Final Distribution Date upon which final payment on the Certificates will be
made upon presentation and surrender of Certificates at the office or agency of
the Trustee therein designated; (2) the amount of any such final payment; and
(3) that the
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Record Date otherwise applicable to such Distribution Date is not applicable,
payments being made only upon presentation and surrender of the Certificates at
the office or agency of the Trustee therein specified. Any notice of purchase of
Assets by the Seller or the Servicer pursuant to Section 8.05 shall constitute
the adoption by the Trustee on behalf of the Certificateholders of a plan of
complete liquidation of the Subsidiary REMIC and the Master REMIC within the
meaning of Section 860F of the Code on the date such notice is given when signed
by the Trustee. Each liquidation shall be a qualified liquidation as evidenced
by an Opinion of Counsel provided at the expense of the Servicer. Each such
notice shall, to the extent required by the REMIC Provisions or other applicable
law, be signed on behalf of the Subsidiary REMIC and the Master REMIC by the
Trustee. The Trustee shall give such notice to the Certificate Registrar at the
time such notice is given to the Certificateholders. In the event such notice is
given in connection with the sale of the Contracts pursuant to Section 8.05, the
Servicer or the Trustee, as applicable, shall deposit in the Collection Account
on the Final Distribution Date in immediately available funds an amount equal to
the above-described purchase price and upon such deposit Certificateholders will
be entitled to the amount of such purchase price but not amounts in excess
thereof, all as provided herein. Upon certification to the Trustee by a
Servicing Officer, following such final deposit the Trustee shall promptly
release to the purchaser of the Assets pursuant to Section 8.05 hereof the Asset
Files for the remaining Contracts, and the Trustee shall execute all
assignments, endorsements and other instruments necessary to effectuate such
transfer.
(c) Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed from the Distribution Account, in the following order of
priority, to Certificateholders on the Final Distribution Date in proportion to
their respective Percentage Interests an amount equal to (i) as to Class A
Certificates, the Class A-1 Principal Balance, the Class A-2 Principal Balance,
the Class A-3 Principal Balance, the Class A-4 Principal Balance, the Class A-5
Principal Balance, the Class A-6 Principal Balance and the Class A-7 Principal
Balance together with any Unpaid Class A Interest Shortfall and one month's
interest at the related Pass-Through Rate on the related Class, respectively
(calculated in the manner specified in Section 1.03), (ii) as to Class M-1
Certificates, the Class M-1 Principal Balance together with any Unpaid Class M-1
Interest Shortfall, any Unpaid Class M-1 Liquidation Loss Interest Shortfall and
one month's interest at the Class M-1 Pass-Through Rate on the Class M-1
Principal Balance, (iii) as to Class M-2 Certificates, the Class M-2 Principal
Balance together with any Unpaid Class M-2 Interest Shortfall, any Unpaid Class
M-2 Liquidation Loss Interest Shortfall and one month's interest at the Class
M-2 Pass-Through Rate on the Class M-2 Principal Balance, (iv) as to Class B-1
Certificates, the Class B-1 Principal Balance together with any Unpaid Class B-1
Interest Shortfall, any Unpaid Class B-1 Liquidation Loss Interest Shortfall and
one month's interest at the Class B-1 Pass-Through Rate on the Class B-1
Principal Balance and (v) as to Class X Certificates, the amount which remains
on deposit in the Distribution Account (other than amounts retained to meet
claims) after application pursuant to clauses (i)-(iv) above. The distribution
on the Final Distribution Date shall be in lieu of the distribution otherwise
required to be made on such Distribution Date in respect of each Class of
Certificates.
(d) In the event that all of the Certificateholders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
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three months after the second notice all the Certificates shall not have been
surrendered for cancellation, the Servicer shall transfer to the Trustee all
amounts remaining on deposit in the Collection Account, to hold in trust for
Certificateholders who have not surrendered their Certificates for cancellation,
together with the final record list of Certificateholders, and the Trustee shall
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain in trust hereunder.
(e) Each Certificateholder hereby irrevocably approves and appoints the
Trustee as its attorney-in-fact for the purposes of adoption of the plan of
complete liquidation.
SECTION 12.04. Acts of Certificateholders.
(a) Except as otherwise specifically provided herein, whenever
Certificateholder approval, authorization, direction, notice, consent, waiver or
other action is required hereunder, such approval, authorization, direction,
notice, consent, waiver or other action shall be deemed to have been given or
taken on behalf of, and shall be binding upon, all Certificateholders if agreed
to by Holders of Certificates of the specified Class or Classes evidencing, as
to each such Class, Percentage Interests aggregating 51% or more.
(b) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where required, to the Servicer. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Agreement and (subject to Section 11.01)
conclusive in favor of the Trustee, the Servicer and the Seller if made in the
manner provided in this Section.
(c) The fact and date of the execution by any Certificateholder of any
such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
(d) The ownership of Certificates shall be proved by the Certificate
Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other act by a Certificateholder shall bind every holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, or omitted to be done by the Trustee,
the Servicer or the Seller in reliance thereon, whether or not notation of such
action is made upon such Security.
(f) The Trustee may require such additional proof of any matter referred
to in this Section as it shall deem necessary.
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SECTION 12.05. Calculations.
Except as otherwise provided in this Agreement, all interest rate and
basis point calculations under this Agreement will be made on the basis of a
360-day year and twelve 30-day months and will be carried out to at least three
decimal places.
SECTION 12.06. Assignment or Delegation by Seller or the Originator.
Except as specifically authorized hereunder, and except for its
obligations as Servicer which are dealt with under Article V and Article VII,
neither the Seller nor the Originator may convey and assign or delegate its
obligations hereunder absent the prior written consent of Holders of
Certificates of each Class evidencing, as to each such Class, Percentage
Interests aggregating 66 2/3% or more, and any attempt to do so without such
consent shall be void; provided, that the Servicer may in any event assign its
rights to be reimbursed for Servicing Advances. It is understood that the
foregoing does not prohibit the pledge or assignment by the Seller of any right
to payment pursuant to Article VIII.
Notwithstanding the foregoing, any person into which the Originator or the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Originator or the Seller shall
be a party, or any Person succeeding to the business of the Originator or the
Seller, shall be the successor of the Originator or the Seller hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding. Each
of the Seller and the Originator shall promptly notify Fitch and Xxxxx'x of any
such merger to which it is a party.
SECTION 12.07. Amendment.
(a) This Agreement may be amended from time to time by the Depositor, the
Seller, the Originator, the Servicer, the Backup Servicer and the Trustee,
without the consent of any of the Certificateholders, to correct manifest error
or to give effect to the expectations of investors, to cure any ambiguity, to
correct or supplement any provisions herein which may be inconsistent with any
other provisions herein, as the case may be, to make such changes as are
necessary to maintain the status of each of the Subsidiary REMIC and the Master
REMIC as a "real estate mortgage investment conduit" under the REMIC Provisions
of the Code or to otherwise effectuate the benefits of such status to the
Subsidiary REMIC, the Master REMIC and the Certificateholders, including,
without limitation, to implement any provision permitted by law that would
enable a REMIC to avoid the imposition of any tax, to add or amend any provision
as required by Fitch, Moody's, or any other nationally recognized statistical
rating organization in order to improve or maintain the rating of any Class of
Class A Certificates, Class M Certificates or Class B Certificates (it being
understood that no party has any obligation to do so), or to make any other
provisions with respect to matters or questions arising under this Agreement
that shall not be inconsistent with the provisions of this Agreement; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any Certificateholder;
and provided, further, that the amendment shall not be deemed to adversely
affect in any material respect the interests of the Certificateholders and no
Opinion of Counsel to that effect shall be required if the Person requesting the
amendment obtains a letter
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from each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the Regular
Certificates.
(b) This Agreement may also be amended from time to time by the Servicer,
the Seller, the Originator, the Backup Servicer and the Trustee, with the
consent of Holders of Certificates of each Class affected thereby evidencing, as
to each such Class, Percentage Interests aggregating 51% or more, for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall (a)
reduce in any manner the amount of, or delay the timing of, collections of
payments on the Assets or distributions which are required to be made on any
Certificate, (b) reduce the aforesaid percentage required to consent to any such
amendment, without the consent of the holders of all Certificates then
outstanding, (c) result in the disqualification of either the Subsidiary REMIC
or the Master REMIC as a REMIC under the Code, (d) adversely affect the status
of either the Subsidiary REMIC or the Master REMIC as a REMIC or the status of
the Regular Certificates as "regular interests" in the Master REMIC or (e) cause
any tax (other than any tax imposed on "net income from foreclosure property"
under Section 860G(c)(1) of the Code that would be imposed without regard to
such amendment) to be imposed on the Trust, including, without limitation, any
tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or
on "contributions after the startup date" under Section 860G(d)(1) of the Code.
(c) This Agreement shall not be amended under this Section without the
consent of 100% of Certificateholders if such amendment would result in the
disqualification of either the Subsidiary REMIC or the Master REMIC as a REMIC
under the Code.
(d) Concurrently with the solicitation of any consent pursuant to this
Section 12.07, the Trustee shall furnish written notification to each Rating
Agency of such solicitation. Promptly after the execution of any amendment
pursuant to this Section 12.07, the Trustee shall furnish written notification
of the substance of such amendment to each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders under
this Section 12.07 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Trustee may prescribe.
(f) The Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's own rights, duties or immunities under
this Agreement or otherwise.
(g) In connection with any amendment pursuant to this Section, the Trustee
shall be entitled to receive an Opinion of Counsel to the effect that such
amendment is authorized or permitted by the Agreement and that all conditions
precedent have been met.
(h) In the absence of the consent described in subsection (c) of this
Section, in connection with any amendment pursuant to this Section, the Trustee
shall have received an Opinion of Counsel, the expense of which shall not be an
expense of the Trust, stating that any such amendment (i) will not adversely
affect the status of the Subsidiary REMIC or the Master
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REMIC as a REMIC or the status of the Regular Certificates as "regular
interests" in the Master REMIC, and (ii) will not cause any tax (other than any
tax imposed on "net income from foreclosure property" under Section 860G(c)(1)
of the Code that would be imposed without regard to such amendment) to be
imposed on the Trust, including, without limitation, any tax imposed on
"prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860G(d)(1) of the Code.
(i) Upon the execution of any amendment or consent pursuant to this
Section 12.07, this Agreement shall be modified in accordance therewith, and
such amendment or consent shall form a part of this Agreement for all purposes,
and every Certificateholder hereunder shall be bound thereby.
SECTION 12.08. Notices.
All communications and notices pursuant hereto to the Depositor, the
Servicer, the Seller, the Originator, the Backup Servicer and the Trustee shall
be in writing and delivered or mailed to it at the appropriate following
address:
If to the Depositor:
Origen Residential Securities, Inc.
00000 Xxxxx Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxx, Xxxx Xxxxxxxxxx and X. Xxxxxxxx Xxxxxx
Telecopier Number:(000)000-0000
If to the Originator:
Origen Financial L.L.C.
00000 Xxxxx Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxx, Xxxx Xxxxxxxxxx and X. Xxxxxxxx Xxxxxx
Telecopier Number:(000)000-0000
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If to the Servicer or the Seller:
Origen Servicing, Inc.
00000 Xxxxx Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxx, Xxxx Xxxxxxxxxx and X. Xxxxxxxx Xxxxxx
Telecopier Number: (000) 000-0000
If to the Trustee:
[______________________]
[Address]
Attn:
Telecopier Number:
If to the Rating Agencies:
[If to the Backup Servicer:
Attention: _________________
Telecopier Number: ______________]
or at such other address as the party may designate by notice to the other
parties hereto, which notice shall be effective when received.
All communications and notices pursuant hereto to a Certificateholder
shall be in writing and delivered or mailed at the address shown in the
Certificate Register.
126
SECTION 12.09. Merger and Integration.
Except as specifically stated otherwise herein, this Agreement sets forth
the entire understanding of the parties relating to the subject matter hereof,
and all prior understandings, written or oral, are superseded by this Agreement.
This Agreement may not be modified, amended, waived or supplemented except as
provided herein.
SECTION 12.10. Headings.
The headings herein are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.
SECTION 12.11. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF, OTHER THAN
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
SECTION 12.12. Recordation of Agreement.
This Agreement is subject to recordation in all appropriate public offices
for real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Assets are situated, and in
any other appropriate public recording office or elsewhere, such recordation to
be effected by the Trustee, but only upon written direction of Holders of
Certificates evidencing Percentage Interests aggregating at least 51%
accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of Certificateholders. The
Certificateholders requesting such recordation shall bear all costs and expenses
of such recordation. The Trustee shall have no obligation to ascertain whether
such recordation so affects the interests of the Certificateholders.
SECTION 12.13. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as provided in
Sections 7.01, 7.02, 11.01 and 12.07) or in any manner otherwise control the
operation and management of the Trust, or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
127
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of default
and of the continuance thereof, as hereinbefore provided, and unless also the
Holders of Regular Certificates evidencing Percentage Interests aggregating not
less than 51% shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted by
each Certificateholder with every other Certificateholder and the Trustee, that
no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of this
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of the Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under this Agreement, except
in the manner herein provided and for the equal, ratable and common benefit of
all Certificateholders. For the protection and enforcement of the provisions of
this Section, each and every Certificateholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION 12.14. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 12.15. Certificates Nonassessable and Fully Paid.
The parties agree that the Certificateholders shall not be personally
liable for obligations of the Trust, that the beneficial ownership interests
represented by the Certificates shall be nonassessable for any losses or
expenses of the Trust or for any reason whatsoever, and that the Certificates
upon execution, authentication and delivery thereof by the Trustee pursuant to
Section 9.01 and 9.02 are and shall be deemed fully paid.
SECTION 12.16. Third-Party Beneficiaries.
This Agreement will inure to the benefit of and be binding upon the
parties hereto, the Certificateholders, the Certificate Owners, and their
respective successors and permitted assigns. Except as otherwise provided in
this Agreement, no other person will have any right or obligation hereunder.
SECTION 12.17. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
128
SECTION 12.18. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
129
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers all as of the day and year first
above written.
ORIGEN RESIDENTIAL SECURITIES, INC., ORIGEN FINANCIAL L.L.C.,
as Depositor as Originator
By ______________________________ By _____________________________
Name: Name:
Title: Title:
ORIGEN SERVICING, INC., [____________________],
as Servicer and Seller as Backup Servicer
By ______________________________ By _____________________________
Name: Name:
Title: Title:
[___________________],
not in its individual capacity but
solely as Trustee
By ______________________________
Name:
Title:
[Signature Page to Pooling and Servicing Agreement]
EXHIBIT A
FORM OF CLASS A CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE.
Class A-[1][2][3][4][5][6][7] No.
(Senior)
Cut-off Date: as defined in the Pass-Through Rate: _______%
Pooling and Servicing Agreement
dated as of __________, 20__
First Distribution Date: Denomination: $___________
__________, 20__
Aggregate Denomination of
All Class A-[1][2][3][4][5][6][7]
Servicer: Certificates: $___________
Origen Servicing, Inc.
Maturity Date: [__________]
(or if such day is not a Business
Day, then the next succeeding
Business Day)
CUSIP: _________
ORIGEN RESIDENTIAL PASS-THROUGH CERTIFICATES,
SERIES 2001-A, CLASS A-[1][2][3][4][5][6][7](SENIOR)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SELLER, THE TRUSTEE OR ANY AFFILIATE THEREOF,
EXCEPT TO THE EXTENT SET FORTH IN THE AGREEMENT.
This certifies that Cede & Co. is the registered owner of the undivided
Percentage Interest represented by the original principal amount set forth above
in Origen Residential Pass-Through Certificates Trust, Series 20__-_ (the
"Trust"), which includes among its assets a pool of manufactured housing
installment sale contracts and installment loan agreements (including, without
limitation, all related security interests and any and all rights to receive
payments which are received pursuant thereto after the applicable Cut-off Date
or Subsequent Cut-off Date). The Trust has been created pursuant to a Pooling
and Servicing Agreement (the "Agreement"), dated
A-1
as of ________________, 20__, among Origen Residential Securities, Inc., as
depositor, Origen Financial L.L.C., as originator (the "Originator"), Origen
Servicing, Inc., as seller and servicer (in such capacities, the "Seller" and
the "Servicer"), [___________________________], as backup servicer (the "Backup
Servicer"), and [_______________________________], as Trustee of the Trust (the
"Trustee"). This Certificate is one of the Certificates described in the
Agreement and is issued pursuant and subject to the Agreement. By acceptance of
this Certificate the holder assents to and becomes bound by the Agreement. To
the extent not defined herein, all capitalized terms have the meanings assigned
to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the fifteenth day
(or if such day is not a Business Day, the next succeeding Business Day) (the
"Distribution Date") of each month commencing in _________, 20__, so long as the
Agreement has not been terminated, by check (or by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such
Distribution Date) to the registered Certificateholder at the address appearing
on the Certificate Register as of the last Business Day of the calendar month
immediately preceding such Distribution Date, in an amount equal to the
Certificateholder's Percentage Interest of the portion of the Class A
Distribution Amount to be distributed to such Class of Class A Certificates. The
Maturity Date is the date listed as such on the first page hereof.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds in the Distribution Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that the Trustee is not personally liable to the
Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all amendments
thereto will be provided to any Certificateholder free of charge upon a written
request to the Trustee.
As provided in the Agreement and subject to the limitations set forth therein,
the transfer of this Certificate is registrable in the Certificate Register of
the Certificate Registrar upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder thereof or his or her attorney duly authorized in
writing, and thereupon one or more new Certificates evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC") to Issuer or its agent
for registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
A-2
OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.
The Depositor, the Originator, the Seller, the Servicer, the Trustee, the Paying
Agent, the Backup Servicer and the Certificate Registrar and any agent of the
Depositor, the Originator, the Seller, the Servicer, the Trustee, the Paying
Agent, the Backup Servicer or the Certificate Registrar may treat the person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Originator, the Seller, the Servicer, the
Trustee, the Paying Agent, the Certificate Registrar, the Backup Servicer nor
any such agent shall be affected by any notice to the contrary.
A-3
IN WITNESS WHEREOF, Origen Residential Pass-Through Certificates Trust, Series
20__-_ has caused this Certificate to be duly executed by the manual signature
of a duly authorized officer of the Trustee.
Dated: ORIGEN RESIDENTIAL PASS-THROUGH
CERTIFICATES TRUST, SERIES 20__-_
By ________________________, as Trustee
By _________________________________________
Authorized Signatory
This is one of the Class A-[] Certificates
referenced in the within-mentioned Agreement
By ________________________________
Authorized Officer of
________________________________, as Trustee
A-4
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
______________________________ the within Origen Residential Pass-Through
Certificate and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said certificate on the
Certificate Register maintained by the Trustee, with full power of substitution
in the premises.
Dated: By _________________________________________
Signature
A-5
EXHIBIT B
FORM OF CLASS M-[1][2] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES [AND THE CLASS M-1 CERTIFICATES] AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
Class M-[1][2] No.
(Subordinate)
Cut-off Date: as defined in the Pass-Through Rate: Lesser of __% per
Pooling and Servicing Agreement annum and the Weighted Average Net
dated as of _____________, 20__ Contract Rate
Denomination: $_______
First Distribution Date:
____________, 20__ Aggregate Denomination of
All Class M-[1][2] Certificates:
$_______________
Servicer:
Origen Servicing, Inc. Maturity Date:
[_________]
(or if such day is not a Business
Day, then the next succeeding
Business Day)
CUSIP: ___________
ORIGEN RESIDENTIAL PASS-THROUGH CERTIFICATES,
SERIES 20_-_, CLASS M-[1][2] (SUBORDINATE)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SELLER, THE TRUSTEE OR ANY AFFILIATE THEREOF,
EXCEPT TO THE EXTENT SET FORTH IN THE AGREEMENT.
This certifies that Cede & Co. is the registered owner of the undivided
Percentage Interest represented by the original principal amount set forth above
in Origen Residential Pass-Through
B-1
Certificates Trust, Series 20__-_ (the "Trust"), which includes among its assets
a pool of manufactured housing installment sale contracts and installment loan
agreements (including, without limitation, all related security interests and
any and all rights to receive payments which are due pursuant thereto after the
applicable Cut-off Date or Subsequent Cut-off Date). The Trust has been created
pursuant to a Pooling and Servicing Agreement (the "Agreement"), dated as of
________________, 20__, among Origen Residential Securities, Inc., as depositor,
Origen Financial, L.L.C., as originator (the "Originator"), Origen Servicing,
Inc., as seller and servicer (in such capacities, the "Seller" and the
"Servicer"), _______________________________, as backup servicer (the "Backup
Servicer") and _______________________________, as Trustee of the Trust (the
"Trustee"). This Certificate is one of the Certificates described in the
Agreement and is issued pursuant and subject to the Agreement. By acceptance of
this Certificate the holder assents to and becomes bound by the Agreement. To
the extent not defined herein, all capitalized terms have the meanings assigned
to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the fifteenth day
(or if such day is not a Business Day, the next succeeding Business Day) (the
"Distribution Date") of each month commencing in _____________ 20__, so long as
the Agreement has not been terminated, by check (or by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such
Distribution Date) to the registered Certificateholder at the address appearing
on the Certificate Register as of the last Business Day of the calendar month
immediately preceding such Distribution Date, in an amount equal to the
Certificateholder's Percentage Interest of the Class [M-1/M-2] Distribution
Amount for such Distribution Date. The Maturity Date of this Certificate is the
date listed as such on the first page hereof.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds in the Distribution Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that the Trustee is not personally liable to the
Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all amendments
thereto will be provided to any Certificateholder free of charge upon a written
request to the Trustee.
As provided in the Agreement and subject to the limitations set forth therein,
the transfer of this Certificate is registrable in the Certificate Register of
the Certificate Registrar upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder thereof or his or her attorney duly authorized in
writing, and thereupon one or more new Certificates evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
B-2
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC") to Issuer or its agent
for registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
The Depositor, the Originator, the Servicer, the Trustee, the Paying Agent, the
Backup Servicer and the Certificate Registrar and any agent of the Depositor,
the Originator, the Seller, the Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Originator, the Seller, the Servicer, the Trustee, the Paying Agent, the
Certificate Registrar, the Backup Servicer nor any such agent shall be affected
by any notice to the contrary.
B-3
IN WITNESS WHEREOF, Origen Residential Pass-Through Certificates Trust,
Series 20__-_ has caused this Certificate to be duly executed by the manual
signature of a duly authorized officer of the Trustee.
Dated:
ORIGEN RESIDENTIAL PASS-THROUGH
CERTIFICATES TRUST, SERIES 20__-_
By ______________________, as Trustee
By _________________________________________
Authorized Signatory
This is one of the Class M-[] Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Officer of
_________________________, as Trustee
B-4
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_____________________________ the within Origen Residential Pass-Through
Certificate and does hereby irrevocably constitute and appoint
_____________________________ Attorney to transfer the said certificate on the
Certificate Register maintained by the Trustee, with full power of substitution
in the premises.
Dated: By _________________________________________
Signature
B-5
EXHIBIT C-1
FORM OF CLASS B-1 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS M-1 CERTIFICATES AND THE CLASS M-2 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE RESOLD OR TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 9.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
Class B-1 No.
(Subordinate)
Cut-off Date: as defined in the Pass-Through Rate: Lesser of __% per
Pooling and Servicing Agreement annum and the Weighted Average Net
dated as of _____________, 20__ Contract Rate
Denomination: $_______
First Distribution Date:
__________, 20__ Aggregate Denomination of
All Class B-1 Certificates:
$_____________
Servicer:
Origen Servicing, Inc. Maturity Date: [_________]
(or if such day is not a Business
Day, then the next succeeding
Business Day)
CUSIP: ________
ORIGEN RESIDENTIAL PASS-THROUGH CERTIFICATES, SERIES 20__-_, CLASS B-1
(SUBORDINATE)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SELLER, THE TRUSTEE OR ANY AFFILIATE THEREOF,
EXCEPT TO THE EXTENT SET FORTH IN THE AGREEMENT.
C-1
This certifies that Cede & Co. is the registered owner of the undivided
Percentage Interest represented by the original principal amount set forth above
in Origen Residential Pass-Through Certificates Trust, Series 20__-_ (the
"Trust"), which includes among its assets a pool of manufactured housing
installment sale contracts and installment loan agreements (including, without
limitation, all related security interests and any and all rights to receive
payments which are due pursuant thereto after the applicable Cut-off Date or
Subsequent Cut-off Date). The Trust has been created pursuant to a Pooling and
Servicing Agreement (the "Agreement"), dated as of _______________, 20__, among
Origen Residential Securities, Inc., as depositor, Origen Financial, L.L.C., as
originator (the "Originator"), Origen Servicing, Inc., as seller and servicer
(in such capacities, the "Seller" and the "Servicer"),
____________________________, as backup servicer (the "Backup Servicer") and
_______________________________, as Trustee of the Trust (the "Trustee"). This
Certificate is one of the Certificates described in the Agreement and is issued
pursuant and subject to the Agreement. By acceptance of this Certificate the
holder assents to and becomes bound by the Agreement. To the extent not defined
herein, all capitalized terms have the meanings assigned to such terms in the
Agreement.
The Agreement contemplates, subject to its terms, payment on the fifteenth day
(or if such day is not a Business Day, the next succeeding Business Day) (the
"Distribution Date") of each month commencing in __________ 20__ so long as the
Agreement has not been terminated, by check (or by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such
Distribution Date) to the registered Certificateholder at the address appearing
on the Certificate Register as of the last Business Day of the calendar month
immediately preceding such Distribution Date, in an amount equal to the
Certificateholder's Percentage Interest of the Class B-1 Distribution Amount for
such Distribution Date. The Maturity Date of this Certificate is date listed as
such on the first page hereof.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds in the Distribution Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that the Trustee is not personally liable to the
Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all amendments
thereto will be provided to any Certificateholder free of charge upon a written
request to the Trustee.
C-2
As provided in the Agreement and subject to the limitations set forth therein,
the transfer of this Certificate is registrable in the Certificate Register of
the Certificate Registrar upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder thereof or his or her attorney duly authorized in
writing, and thereupon one or more new Certificates evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC") to Issuer or its agent
for registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
The Depositor, the Originator, the Servicer, the Trustee, the Paying Agent and
the Certificate Registrar and any agent of the Depositor, the Originator, the
Seller, the Servicer, the Trustee, the Paying Agent, the Backup Servicer or the
Certificate Registrar may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Originator, the Seller, the Servicer, the Trustee, the Paying Agent, the
Certificate Registrar, the Backup Servicer nor any such agent shall be affected
by any notice to the contrary.
C-3
IN WITNESS WHEREOF, Origen Residential Pass-Through Certificates Trust, Series
20__-_ has caused this Certificate to be duly executed by the manual signature
of a duly authorized officer of the Trustee.
Dated:
ORIGEN RESIDENTIAL PASS-THROUGH
CERTIFICATES TRUST, SERIES 20__-_
By ________________________, as Trustee
By _________________________________________
Authorized Officer
This is one of the Class B-1 Certificates
referenced in the within-mentioned Agreement
By ________________________________
Authorized Officer of
______________________________, as Trustee
C-4
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
______________________________ the within Origen Residential Pass-Through
Certificate and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said certificate on the
Certificate Register maintained by the Trustee, with full power of substitution
in the premises.
Dated: By _________________________________________
Signature
C-5
EXHIBIT C-2
FORM OF CLASS X CERTIFICATE
[RESERVED]
C-2-1
EXHIBIT C-3
FORM OF CLASS R CERTIFICATE
[RESERVED]
C-3-1
EXHIBIT D
FORM OF ASSIGNMENT
In accordance with the Pooling and Servicing Agreement (the "Agreement"),
dated as of [______________], among Origen Residential Securities, Inc., as
depositor, Origen Financial L.L.C., as Originator, Origen Servicing, Inc., as
servicer and seller, [[______________], as backup servicer], and
[________________], as Trustee of the Trust (the "Trustee"), the Seller does
hereby transfer, assign, set over and otherwise convey to the Trustee (i) all
the right, title and interest of the Seller in and to the Assets, including,
without limitation, all right, title and interest in and to the Collateral
Security and all rights to receive payments on or with respect to the Assets,
(ii) all rights under every Hazard Insurance Policy relating to a Manufactured
Home or a Mortgaged Property securing an Asset for the benefit of the creditor
of such Asset, (iii) all rights of the Seller under the Transfer Agreement, (iv)
the proceeds from the Errors and Omissions Protection Policy and all rights
under any blanket hazard insurance policy to the extent they relate to the
Assets, (v) all documents contained in the Asset Files, (vi) amounts on deposit
in the Pre-Funding Account, and (vii) all proceeds and products in any way
derived from any of the foregoing. Capitalized terms used herein but not defined
herein have the meanings assigned to them in the Agreement.
This Assignment is made pursuant to and upon the representation and
warranties on the part of the undersigned contained in Article III of the
Agreement and no others.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed this ___ day of [______________].
ORIGEN LOAN SALES COMPANY, LLC
By ____________________________
[Name]
[Title]
D-1
EXHIBIT E
[RESERVED]
E-1
EXHIBIT F
[RESERVED]
F-1
EXHIBIT G
FORM OF TRUSTEE'S ACKNOWLEDGMENT
[____________________________], a [_____________________], acting as
trustee (the "Trustee") of the trust created pursuant to the Pooling and
Servicing Agreement (the "Agreement"), dated as of [__________________], among
Origen Residential Securities, Inc., as depositor, Origen Financial L.L.C., as
Originator, Origen Servicing, Inc., as servicer and seller,
[__________________], as backup servicer, and the Trustee (the "Pooling and
Servicing Agreement") (all capitalized terms used herein without definition
having the respective meanings specified in the Pooling and Servicing
Agreement), acknowledges, pursuant to Section 2.01 of the Pooling and Servicing
Agreement, that the Trustee has received and holds in trust thereunder the
following (i) all right, title and interest in and to the manufactured housing
contracts identified on the List of Contracts the Mortgage Loans identified on
and the Mortgage Loan Schedule [delivered pursuant to Sections 2.02(1) and (2)
of the Pooling and Servicing Agreement] [delivered with the Subsequent Transfer
Instrument of even date herewith] (the "Assets"), including, without limitation,
all right, title and interest in and to the Collateral Security and all rights
to receive payments on or with respect to the Assets, (ii) all rights of the
Seller under the Transfer Agreement, (iii) all documents contained in the Asset
Files, subject to any exceptions noted on Schedule A to Exhibit H to the Pooling
and Servicing Agreement, (iv) amounts on deposit in the Pre-Funding Account and
(v) all proceeds and products in any way derived from any of the foregoing.
The Trustee further acknowledges that the Trustee, directly or through a
custodian, will hold said rights, interests and proceeds in trust for the use
and benefit of all Certificateholders.
IN WITNESS WHEREOF, [__________________], as Trustee, has caused this
acknowledgment to be executed by its duly authorized officer as of the ___ day
of [__________________].
[____________________],
as Trustee
By __________________________
Name:
Title:
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EXHIBIT H
FORM OF CUSTODIAN'S ACKNOWLEDGMENT
[__________________], a [__________________] (the "Custodian") acting as
Custodian under the Pooling and Servicing Agreement (the "Agreement"), dated as
of [__________________], among Origen Residential Securities, Inc., as
depositor, Origen Financial L.L.C., as Originator, Origen Servicing Inc., as
servicer and seller, [__________________], as backup servicer, and the Trustee,
pursuant to which the Custodian holds on behalf of the Trustee the "Asset
Files," as described in the Pooling and Servicing Agreement, hereby acknowledges
receipt of such Asset Files, except as noted on the exception list attached
hereto as Schedule A. The Custodian has reviewed the Mortgage Loan Files, the
Contract Files, the Land-and-Home Contract Files in accordance with the
provisions of Section 2.04(b) of the Pooling and Servicing Agreement and hereby
certifies that the Mortgage Loan Files, the Contract Files, the Land-and-Home
Contract Files contain the documents described in the definitions of the
"Mortgage Loan File," "Contract File" and "Land-and-Home Contract File", subject
to the exceptions set forth on the attached Schedule A. The Custodian will not
otherwise review the Assets and Asset Files for compliance with the terms of the
Pooling and Servicing Agreement.
IN WITNESS WHEREOF, [__________________] has caused this acknowledgment to
be executed by its duly authorized officer as of the ___ day of
[__________________].
[____________________],
as Custodian
By __________________________
Its ______________________
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EXHIBIT I
FORM OF CERTIFICATE OF SERVICING OFFICER
ORIGEN SERVICING, INC.
The undersigned certifies that he is a [title] of Origen Servicing, Inc.,
a Delaware corporation (the "Company"), and that as such he is duly authorized
to execute and deliver this certificate on behalf of the Company pursuant to
Section 6.02 of the Pooling and Servicing Agreement (the "Agreement"), dated as
of [__________________], among Origen Residential Securities, Inc., as
depositor, Origen Financial L.L.C., as Originator, Origen Servicing, Inc., as
servicer and seller (in such capacities, the "Servicer" and the "Seller,"
respectively), [__________________], as backup servicer, and
[__________________], as trustee (the "Trustee") (all capitalized terms used
herein without definition having the respective meanings specified in the
Agreement), and further certifies that:
1. The Monthly Report for the period from _____________ to ____________
attached to this certificate is complete and accurate in accordance with the
requirements of Sections 6.01 and 6.02 of the Agreement; and
2. As of the date hereof, no Event of Termination or event that with
notice or lapse of time or both would become an Event of Termination has
occurred.
IN WITNESS WHEREOF, I have affixed hereunto my signature the ___ day of
_________, ____.
ORIGEN SERVICING, INC.
By _______________________
[Name]
[Title]
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EXHIBIT J
FORM OF INVESTMENT LETTER [NON-RULE 144A]
DATE
Origen Residential Securities, Inc.
00000 Xxxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
[Trustee]
[Trustee Address]
Re: Origen Residential Pass-Trough Certificates, Series 200[ ]-[ ]
Ladies and Gentlemen:
In connection with our acquisition of the above-captioned Certificates, we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor and the Seller concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan that is subject to Section 4975 of the Internal Revenue Code
of 1986, as amended, nor are we acting on behalf of or investing plan assets of
any such plan, (e) we are acquiring the Certificates for investment for our own
account and not with a view to any distribution of such Certificates (but
without prejudice to our right at all times to sell or otherwise dispose of the
Certificates in accordance with clause (g) below), (f) we have not offered or
sold any Certificates to, or solicited offers to buy any Certificates from, any
person, or otherwise approached or negotiated with any person with respect
thereto, or taken any other action which would result in a violation of Section
5 of the Act, and (g) we will not sell, transfer or otherwise dispose of any
Certificates unless (1) such sale, transfer or other disposition is made
pursuant to an effective registration statement under the Act or is exempt from
such registration requirements, and if requested, we will at our expense provide
an opinion of counsel satisfactory to the addressees of this Certificate that
such sale, transfer or other disposition may be made pursuant to an exemption
from the Act, (2) the purchaser or transferee of such Certificate has executed
and delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with any
conditions for transfer set forth in the Pooling Agreement.
Very truly yours,
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[NAME OF TRANSFEREE]
By: ______________________________
Authorized Officer
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FORM OF RULE 144A LETTER
[DATE]
Origen Residential Securities, Inc.
00000 Xxxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
[Trustee]
[Trustee Address]
Re: Origen Residential Pass-Through Certificates,
Series 200[ ]-[ ]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (the "Act"), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we have had the
opportunity to ask questions of and receive answers from the Depositor and the
Seller concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (c) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended, or a
plan that is subject to Section 4975 of the Internal Revenue Code of 1986, as
amended, nor are we acting on behalf of or investing plan assets of any such
plan, (d) we have not, nor has anyone acting on our behalf offered, transferred,
pledged, sold or otherwise disposed of the Certificates, any interest in the
Certificates or any other similar security to, or solicited any offer to buy or
accept a transfer, pledge or other disposition of the Certificates, any interest
in the Certificates or any other similar security from, or otherwise approached
or negotiated with respect to the Certificates, any interest in the Certificates
or any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other manner, or
taken any other action, that would constitute a distribution of the Certificates
under the Securities Act or that would render the disposition of the
Certificates a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will act, nor has authorized or will
authorize any person to act, in such manner with respect to the Certificates,
(e) we are a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act and have completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2. We are aware
that the sale to us is being made in reliance on Rule 144A. We are acquiring the
Certificates for our own account or for resale pursuant to Rule 144A and
further, understand that such Certificates may be resold, pledged or transferred
only (i) to a person reasonably believed to be a qualified institutional buyer
that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the
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resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
Very truly yours,
[NAME OF TRANSFEREE]
By: ________________________
Authorized Officer
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ANNEX 1 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
i. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
ii. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned and/or
invested on a discretionary basis $_______ 1 in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A and (ii)
the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or charitable
organization described in Section 501(c)(3) of the InternalRevenue
Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any State, territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision over
any such institutions or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
---------------------
1 Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case, Buyer
must own and/or invest on a discretionary basis at least $10,000,000 in
securities
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___ Broker-dealer. The Buyer is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company
whose primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, territory
or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income Security
Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small
business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
___ Business Development Company. Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
iii. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that are part of
an unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) securities issued or guaranteed by the U.S. or any instrumentality
thereof, (iv) bank deposit notes and certificates of deposit, (v) loan
participations, (vi) repurchase agreements, (vii) securities owned but subject
to a repurchase agreement and (viii) currency, interest rate and commodity
swaps.
iv. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
v. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
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vi. Until the date of purchase of the Rule 144A Securities, the Buyer will
notify each of the parties to which this certification is made of any changes in
the information and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
________________________________
Print Name of Buyer
By:_____________________________
Name:
Title:
Date:___________________________
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ANNEX 2 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
___ The Buyer owned $______ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
___ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $______ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family of
Investment Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities
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owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
5. The Buyer is familiar with Rule 144A and under-stands that the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates are relying and will continue to rely on the statements made herein
because one or more sales to the Buyer will be in reliance on Rule 144A. In
addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned will
notify the parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of the Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
______________________________
Print Name of Buyer or Adviser
By: __________________________
Name:
Title:
IF AN ADVISER:
______________________________
Print Name of Buyer
Date: _________________________
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EXHIBIT K
Form of Transferor Certificate
__________________
Date
Origen Residential Securities, Inc.
00000 Xxxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
[Trustee]
[Trustee Address]
Re: Origen Residential Pass-Trough Certificates,
Series 200[ ]-[ ]
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we certify
that (a) we understand that the Certificates have not been registered under the
Securities Act of 1933, as amended (the "Act"), and are being disposed by us in
a transaction that is exempt from the registration requirements of the Act, (b)
we have not offered or sold any Certificates to, or solicited offers to buy any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, in a manner that would be deemed, or taken any
other action which would result in, a violation of Section 5 of the Act and (c)
to the extent we are disposing of a Class R Certificate, we have no knowledge
the Transferee is not a Permitted Transferee.
Very truly yours,
_________________________
Print Name of Transferor
By: _____________________
Authorized Officer
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EXHIBIT L-1
[RESERVED]
X-0-0
XXXXXXX X-0
[RESERVED]
L-2-1
EXHIBIT M
FORM OF ERISA REPRESENTATION LETTER
[___________________]
[Address]
Re: Origen Residential Pass-Through Certificates, Series
200[__]-[__] Class [R][X] Certificates
Ladies and Gentlemen:
Reference is made to the pooling and servicing agreement, dated as of
February 1, 2001 (the "Pooling and Servicing Agreement") by and among Origen
Residential Securities, Inc., as Depositor, Origen Financial L.L.C., as
Originator, and Origen Servicing, Inc., as servicer and seller,
[____________________], as backup servicer, and [_____________________], as
trustee (the "Trustee"), pursuant to which the [Origen ___________ Residential
Pass-Through Certificates, Series 200[__]-[__], Class [R][X] (the
"ERISA-Restricted Certificates") were issued. Capitalized terms used herein but
not defined shall have the meanings given them in the Pooling and Servicing
Agreement.
The undersigned intends to acquire the ERISA-Restricted Certificates
referenced above. The undersigned acknowledges that the ERISA-Restricted
Certificates may not be transferred except in accordance with the transfer
provisions of the Pooling and Servicing Agreement.
Pursuant to Section 9.02 of the Pooling and Servicing Agreement, the
undersigned hereby represents and warrants:
[ ] that it is not an employee benefit plan or arrangement subject
to Section 406 of ERISA, or a plan subject to Section 4975 of the Code,
nor a person acting on behalf of any such plan or arrangement nor using
the assets of any such plan or arrangement to effect the transfer of the
ERISA-Restricted Certificates.
[ ] that it is an employee benefit plan subject to ERISA, or a plan
or arrangement subject to Section 4975 of the Code, or a trustee of any
such plan or any other person acting on behalf of any such plan or
arrangement or using such plan's or arrangement's assets; however, the
undersigned has provided an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase or holding of the ERISA-Restricted
Certificates by the undersigned will not result in the assets of the Trust
being deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee to any
obligation or liability (including obligations or liabilities under ERISA
or Section 4975 of the Code) in addition to those undertaken in the
Pooling and Servicing Agreement.
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______________________________
By: __________________________
Name:
Title:
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EXHIBIT N
AFFIDAVIT OF TRANSFER OF RESIDUAL CERTIFICATES
PURSUANT TO SECTION 9.02(d)
ORIGEN ___________ RESIDENTIAL PASS-THROUGH CERTIFICATES
SERIES 200[__]-[__]
STATE OF )
)ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______, the proposed Transferee of an
Ownership Interest in a Class R Certificate (the "Certificate") issued pursuant
to the Pooling Agreement, (the "Agreement"), relating to the above-referenced
Series, among Origen Residential Securities, Inc., as Depositor (the
"Depositor"), Origen Financial L.L.C., as Originator, Origen Servicing, Inc., as
Servicer and as Seller, [_______________], as backup servicer, and
[_________________], as Trustee (the "Trustee"). Capitalized terms used, but not
defined herein or in Exhibit 1 hereto, shall have the meanings ascribed to such
terms in the Agreement. The Transferee has authorized the undersigned to make
this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date
of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account.
3. The Transferee has been advised of, and understands that (i) a tax will
be imposed on Transfers of the Certificate to Persons that are not Permitted
Transferees; (ii) such tax will be imposed on the transferor; and (iii) the
Person otherwise liable for the tax shall be relieved of liability for the tax
if the subsequent Transferee furnished to such Person an affidavit that such
subsequent Transferee is a Permitted Transferee and, at the time of Transfer,
such Person does not have actual knowledge that the affidavit is false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time during
the taxable year of the pass-through entity a Person that is not a Permitted
Transferee is the record holder of an interest in such entity. The Transferee
understands that such tax will not be imposed for any period with respect to
which the record holder furnishes to the pass-through entity an affidavit that
such record holder is a Permitted Transferee and the pass-through entity does
not have actual knowledge that such affidavit is false. (For this purpose, a
"pass-through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
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5. The Transferee has reviewed the provisions of Section 9.02(d) of the
Agreement (attached hereto as Exhibit 2 and incorporated herein by reference)
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 9.02(d) of the Agreement and the restrictions noted on
the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the Transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any Person
to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit K to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the
Certificate.
8. The Transferee's taxpayer identification number is .
9. The Transferee is a U.S. Person as defined in Code Section 7701(a)(30).
10. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
The Transferee is not an employee benefit plan that is subject to ERISA or
a plan that is subject to Section 4975 of the Code, nor is it acting on behalf
of or investing plan assets of such a plan.
The Transferee has provided financial statements or other financial
information requested by the Transferor in connection with the transfer of the
Class R Certificates to permit the Transferor to assess the financial capability
of the Transferee to pay such taxes.
* * *
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IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this_______ day of ________, 20 ___.
[NAME OF TRANSFEREE]
By: _____________________________
Name:
Title:
[Corporate Seal]
ATTEST:
______________________________
[Assistant] Secretary
Personally appeared before me the above-named_________ , known or proved
to me to be the same person who executed the foregoing instrument and to be
the___________ of the Transferee, and acknowledged that he executed the same as
his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this___ day of_____ ,20__ .
_________________________________
NOTARY PUBLIC
My Commission expires the____day
of________, 20__ .
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EXHIBIT 1 to EXHIBIT N
Certain Definitions
"Ownership Interest" means as to any Certificate or security interest in
such Certificate, any interest in such Certificate as the Holder thereof and any
other interest therein, whether direct or indirect, legal or beneficial, as
owner or as pledgee.
"Permitted Transferee" means any Person other than (i) the United States,
any State or any political subdivision thereof or any agency or instrumentality
of any of the foregoing, (ii) a foreign government, international organization
or any agency or instrumentality of either of the foregoing, (iii) an
organization which is exempt from tax imposed by Chapter 1 of the Code
(including the tax imposed by section 511 of the Code on unrelated business
taxable income) (except certain farmers' cooperatives described in Code section
521) on any excess inclusions (as defined in Section 860E(c)(1)) with respect to
any Class R Certificate, (iv) rural electric and telephone cooperatives
described in Code section 1381(a)(2)(C), (v) a Person that is not a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, or an estate whose income from sources
without the United States is includible in gross income for United States
federal income tax purposes regardless of its connection with the conduct of a
trade or business within the United States, or a trust if a court within the
United States is able to exercise primary supervision over the administration of
the trust and one or more United States Persons have the authority to control
all substantial decisions of the trust, (vi) an "electing large partnership"
within the meaning of Section 775 of the Code, and (vii) any other Person so
designated by the Trustee based on an Opinion of Counsel to the effect that any
transfer to such Person may cause the Trust to fail to qualify as a REMIC at any
time the Certificates are outstanding. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Code section
7701 or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax and, with the exception of
the Xxxxxxx Mac, a majority of its board of directors is not selected by such
governmental unit.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
EXHIBIT 2 to EXHIBIT N
Section 9.02(d) of the Agreement
(d) Except with respect to the initial transfer of the Class X and Class
R Certificates (together, the "Private Certificates") by the
Depositor to the Seller, no transfer, sale, pledge or other
disposition of any Private Certificate shall be made unless (x)
except to the extent such transfer is made to an entity the equity
of which is owned by the Seller or an affiliate of the Seller, and
(y) such disposition is exempt from the registration requirements of
the Securities Act of 1933, as amended (the "1933 Act"), and any
applicable state securities laws or is made in accordance with the
1933 Act and laws. In the event of any such transfer, other than the
transfer of the Tax Matters Person Residual Interest (i) unless such
transfer is made in reliance upon Rule 144A (as evidenced by the
investment letter delivered to the Trustee, in substantially the
form attached hereto as Exhibit J) under the 1933 Act, the Trustee
and the Depositor shall require a written Opinion of Counsel (which
may be in-house counsel) acceptable to and in form reasonably
satisfactory to the Trustee and the Depositor that such transfer may
be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act or is being made
pursuant to the 1933 Act, which Opinion of Counsel shall not be an
expense of the Trustee or the Depositor or (ii) the Trustee shall
require the transferor to execute a transferor certificate (in
substantially the form attached hereto as Exhibit K) and the
transferee to execute an investment letter (in substantially the
form attached hereto as Exhibit J) acceptable to and in form
reasonably satisfactory to the Depositor and the Trustee certifying
to the Depositor and the Trustee the facts surrounding such
transfer, which investment letter shall not be an expense of the
Trustee or the Depositor. The Holder of a Private Certificate
desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that
may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate, acceptable to and in form satisfactory to the Trustee and the
Depositor, (such requirement is satisfied by the Trustee's receipt of a
representation letter from the transferee substantially in the form of Exhibit S
hereto, as appropriate), to the effect that such transferee is not an employee
benefit plan or arrangement subject to Section 406 of ERISA or a plan subject to
Section 4975 of the Code, nor a person acting on behalf of any such plan or
arrangement nor using the assets of any such plan or arrangement to effect such
transfer or (ii) in the case of an ERISA Restricted Certificate that has been
the subject of an ERISA-Qualifying Underwriting, if the purchaser is an
insurance company, a representation that the purchaser is an insurance company
which is purchasing such Certificates with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Certificates are covered under Sections I and III of PTCE
95-60 or (iii) in the case of any such ERISA-Restricted Certificate presented
for registration in the name of an employee benefit plan subject to ERISA or a
plan or arrangement subject to Section 4975 of the Code (or comparable
provisions of any subsequent enactments), or a trustee of any such plan or any
other person acting on behalf of any such plan or arrangement or using such
plan's or arrangement's assets, an Opinion of Counsel in form and substance
satisfactory to the Trustee which Opinion of Counsel shall not be an expense of
either the Trustee or the Trust, addressed to the Trustee, to the effect that
the purchase or holding of such ERISA-Restricted Certificate will not result in
the assets of the Trust being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA and the Code and will not subject the
Trustee to any obligation in addition to those expressly undertaken in this
Agreement or to any liability. For purposes of clause (i) and (ii) of the
preceding sentence, such representation shall be deemed to have been made to the
Trustee by the transferee's acceptance of an ERISA-Restricted Certificate (or
the acceptance by a Certificate Owner of the beneficial interest in any such
Class of ERISA-Restricted Certificates) in book-entry form unless the Trustee
shall have received from the transferee an alternative representation acceptable
in form and substance to the Depositor or an Opinion of Counsel described in
clause (iii). Notwithstanding anything else to the contrary herein, any
purported transfer of an ERISA-Restricted Certificate to or on behalf of an
employee benefit plan subject to Section 406 of ERISA or a plan subject to
Section 4975 of the Code without the delivery to the Trustee of an Opinion of
Counsel in form and substance satisfactory to the Trustee as described above
shall be void and of no effect. The Trustee shall be under no liability to any
Person for any registration of transfer of any ERISA-Restricted Certificate that
is in fact not permitted by this Section 9.02(d) or for making any payments due
on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered by the Trustee in accordance with the foregoing
requirements. The Trustee shall be entitled, but not obligated, to recover from
any Holder of any ERISA-Restricted Certificate that was in fact an employee
benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975
of the Code or a Person acting on behalf of any such plan at the time it became
a Holder or, at such subsequent time as it became such a plan or Person acting
on behalf of such a plan, all payments made on such ERISA-Restricted Certificate
at and after either such time. Any such payments so recovered by the Trustee
shall be paid and delivered by the Trustee to the last preceding Holder of such
Certificate that is not such a plan or Person acting on behalf of a plan.
Each Person who has or who acquires any Ownership Interest in a Class R
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the following provisions and to have
irrevocably appointed the Depositor or its designee as its attorney-in-fact to
negotiate the terms of any mandatory sale under clause (v) below and to execute
all instruments of transfer and to do all other things necessary in connection
with any such sale, and the rights of each Person acquiring any Ownership
Interest in a Class R Certificate are expressly subject to the following
provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Class R
Certificate unless such Ownership Interest is a pro rata undivided
interest.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Class R Certificate, the Trustee shall as a condition to
registration of the transfer, require delivery to it, in form satisfactory
to it, of each of the following:
A. an affidavit in the form of Exhibit T hereto from the
proposed transferee to the effect that such transferee is a
Permitted Transferee and that it is not acquiring its Ownership
Interest in the Class R Certificate that is the subject of the
proposed transfer as a nominee, trustee or agent for any Person who
is not a Permitted Transferee; and
B. a covenant of the proposed transferee to the effect that
the proposed transferee agrees to be bound by and to abide by the
transfer restrictions applicable to the Class R Certificates.
(iv) Any attempted or purported transfer of any Ownership Interest
in a Class R Certificate in violation of the provisions of this Section
shall be absolutely null and void and shall vest no rights in the
purported transferee. If any purported transferee shall, in violation of
the provisions of this Section, become a Holder of a Class R Certificate,
then the prior Holder of such Class R Certificate that is a Permitted
Transferee shall, upon discovery that the registration of transfer of such
Class R Certificate was not in fact permitted by this Section, be restored
to all rights as Holder thereof retroactive to the date of registration of
transfer of such Class R Certificate. The Trustee shall be under no
liability to any Person for any registration of transfer of a Class R
Certificate that is in fact not permitted by this Section or for making
any distributions due on such Class R Certificate to the Holder thereof or
taking any other action with respect to such Holder under the provisions
of this Agreement so long as the Trustee received the documents specified
in clause (iii). The Trustee shall be entitled to recover from any Holder
of a Class R Certificate that was in fact not a Permitted Transferee at
the time such distributions were made all distributions made on such Class
R Certificate. Any such distributions so recovered by the Trustee shall be
distributed and delivered by the Trustee to the prior Holder of such Class
R Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Class R Certificate in violation of the
restrictions in this Section, then the Trustee shall have the right but
not the obligation, without notice to the Holder of such Class R
Certificate or any other Person having an Ownership Interest therein, to
notify the Depositor to arrange for the sale of such Class R Certificate.
The proceeds of such sale, net of commissions (which may include
commissions payable to the Depositor or its affiliates in connection with
such sale), expenses and taxes due, if any, will be remitted by the
Trustee to the previous Holder of such Class R Certificate that is a
Permitted Transferee, except that in the event that the Trustee determines
that the Holder of such Class R Certificate may be liable for any amount
due under this Section or any other provisions of this Agreement, the
Trustee may withhold a corresponding amount from such remittance as
security for such claim. The terms and conditions of any sale under this
clause (v) shall be determined in the sole discretion of the Trustee and
it shall not be liable to any Person having an Ownership Interest in a
Class R Certificate as a result of its exercise of such discretion.
(vi) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Class R Certificate in violation of the
restrictions in this Section, then the Trustee will provide to the
Internal Revenue Service, and to the persons specified in Sections
860E(e)(3) and (6) of the Code, information needed to compute the tax
imposed under Section 860E(e)(5) of the Code on transfers of residual
interests to disqualified organizations.
The foregoing provisions of this Section shall cease to apply to transfers
occurring on or after the date on which there shall have been delivered to the
Trustee, in form satisfactory to the Trustee, (i) written notification from each
Rating Agency that the removal of the restrictions on transfer set forth in this
Section will not cause such Rating Agency to downgrade its rating of the
Certificates and (ii) an Opinion of Counsel to the effect that such removal will
not cause the Trust to fail to qualify as a REMIC. The Servicer shall be the
initial holder of the Tax Matter Person Residual Interest.
