INDYMAC ABS, INC.
as Depositor,
[INDYMAC, INC.,]
as Seller and Servicer,
and
[________________]
as Trustee
----------------------------
POOLING AND SERVICING AGREEMENT
Dated as of [______, 199_]
----------------------------
[______________]
IndyMac Manufactured Housing Contract
Pass-Through Certificates,
Series 1998-_
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions......................................................1
ARTICLE TWO
CONVEYANCE OF CONTRACTS; CUSTODY OF CONTRACTS
Section 2.01. Conveyance of Contracts and Other Rights....................... 28
Section 2.02. Filing; Name Change or Relocation.............................. 29
Section 2.03. Acceptance by Trustee.......................................... 31
Section 2.04. Conditions to Closing.......................................... 31
Section 2.05. Execution and Authentication of Certificates................... 31
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties as to the Seller.................32
Section 3.02. Representations and Warranties as to Each Contract..............33
Section 3.03. Representations and Warranties as to the Contracts..............36
Section 3.04. Representations and Warranties as to the Contract Files........ 37
Section 3.05. Repurchase of Contracts for Breach............................. 38
Section 3.06. Representation and Warranty as to the Depositor................ 39
ARTICLE FOUR
THE CERTIFICATES
Section 4.01. The Certificates................................................40
Section 4.02. Registration of Transfer and Exchange of Certificates...........40
Section 4.03. Book-Entry Certificates.........................................42
Section 4.04. Mutilated, Destroyed, Lost or Stolen Certificates...............43
Section 4.05. Persons Deemed Owners...........................................44
Section 4.06. Appointment of Paying Agent.....................................44
Section 4.07. Access to List of Certificateholder Names and Addresses.........44
Section 4.08. Authenticating Agents...........................................45
Section 4.09. The Class [__] Certificates.....................................45
ARTICLE FIVE
ADMINISTRATION AND SERVICING OF CONTRACTS
Section 5.01. Responsibility for Contract Administration and Servicing....... 48
Section 5.02. Standard of Care............................................... 48
Section 5.03. Subservicing................................................... 48
Section 5.04. Records........................................................ 50
Section 5.05. Inspection..................................................... 50
Section 5.06. Payment of Taxes............................................... 50
Section 5.07. Enforcement.................................................... 51
Section 5.08. Hazard Insurance Policies...................................... 51
Section 5.09. Hazard Insurance Policy Collections; Consent to Manufactured
Home Transfers; Assumption Agreements.......................... 52
Section 5.10. Realization upon Defaulted Contracts........................... 53
Section 5.11. Costs and Expenses............................................. 53
Section 5.12. Trustee to Cooperate........................................... 54
Section 5.13. Servicing and Other Compensation............................... 54
Section 5.14. REO Disposition................................................ 54
ARTICLE SIX
DISTRIBUTIONS
Section 6.01. Monthly Payments............................................... 56
Section 6.02. Withdrawals from the Collection Account........................ 59
Section 6.03. Advances....................................................... 60
Section 6.04. Establishment of and Deposits in the Collection Account and
the Certificate Account........................................ 60
Section 6.05. Transfer of Certificate Account................................ 62
Section 6.06. Transfer of Collection Account................................. 62
ARTICLE SEVEN
REPORTS
Section 7.01. Monthly Reports................................................ 63
Section 7.02. Servicer's Certificate......................................... 63
Section 7.03. Other Data..................................................... 63
Section 7.04. Annual Statement as to Compliance.............................. 63
Section 7.05. Annual Independent Public Accountants' Servicing Report........ 63
Section 7.06. Statements to Certificateholders............................... 64
Section 7.07. Other Reports.................................................. 65
ARTICLE EIGHT
INDEMNITIES; THE DEPOSITOR AND THE SERVICER
Section 8.01. Liabilities to Obligors........................................ 66
Section 8.02. Tax Indemnification............................................ 66
Section 8.03. Servicer's Indemnities......................................... 66
Section 8.04. Operation of Indemnities....................................... 66
Section 8.05. Merger or Consolidation of the Depositor, the Seller or
the Servicer................................................... 66
Section 8.06. Limitation on Liability of the Depositor and Others............ 67
Section 8.07. Assignment by Servicer......................................... 67
Section 8.08. Successor to the Servicer...................................... 68
ARTICLE NINE
DEFAULT
Section 9.01. Events of Default.............................................. 70
Section 9.02. Waiver of Defaults............................................. 71
Section 9.03. Trustee to Act; Appointment of Successor....................... 71
Section 9.04. Notification to Certificateholders............................. 71
Section 9.05. Effect of Transfer............................................. 71
ARTICLE TEN
THE TRUSTEE
Section 10.01. Duties of Trustee............................................. 73
Section 10.02. Certain Matters Affecting the Trustee......................... 74
Section 10.03. Trustee Not Liable for Certificates or Contracts.............. 75
Section 10.04. Trustee May Own Certificates.................................. 75
Section 10.05. Servicer to Pay Fees and Expenses of Trustee.................. 75
Section 10.06. Eligibility Requirements for Trustee.......................... 76
Section 10.07. Resignation and Removal of the Trustee........................ 76
Section 10.08. Successor Trustee............................................. 77
Section 10.09. Merger or Consolidation of Trustee............................ 77
Section 10.10. Appointment of Co-Trustee or Separate Trustee................. 78
Section 10.11. Appointment of Office or Agency............................... 79
Section 10.12. REMIC Administration.......................................... 79
Section 10.13. Tax Matters................................................... 83
ARTICLE ELEVEN
TERMINATION
Section 11.01. Termination................................................... 87
Section 11.02. Auction Call.................................................. 89
ARTICLE TWELVE
MISCELLANEOUS PROVISIONS
Section 12.01. Severability of Provisions.................................... 90
Section 12.02. Limitation on Rights of Certificateholders.................... 90
Section 12.03. Acts of Certificateholders.................................... 91
Section 12.04. Calculations.................................................. 91
Section 12.05. Amendment..................................................... 91
Section 12.06. Recordation of Agreement...................................... 93
Section 12.07. Certificates Nonassessable and Fully Paid..................... 93
Section 12.08. No Petition................................................... 93
Section 12.09. Governing Law................................................. 93
Section 12.10. Notices....................................................... 93
Section 12.11. Merger and Integration of Documents........................... 93
Section 12.12. Headings...................................................... 94
Section 12.13. Counterparts.................................................. 94
EXHIBITS
Exhibit A - Contract Schedule............................................... A-1
Exhibit B - Form of Face of Class A Certificates............................ B-1
Exhibit C - Form of Face of Class [__] Certificates......................... C-1
Exhibit D - Form of Reverse of Certificates................................. D-1
Exhibit E - Form of Face of Class [__] Certificates......................... E-1
Exhibit F - Form of Face of Class [__] Certificates......................... F-1
Exhibit G - Form of Face of Class [__] Certificates......................... G-1
Exhibit H - [Reserved]...................................................... H-1
Exhibit I - Form of Certificate Assignment.................................. I-1
Exhibit J - Form of Servicer's Certificate.................................. J-1
Exhibit K - Form of Transfer Affidavit...................................... K-1
Exhibit L - Form of Investment Letter of Holder of Class [__] Certificates.. L-1
This Pooling and Servicing Agreement, dated as of [______, 199_], is among
Indymac ABS, Inc., as depositor (the "Depositor"), [IndyMac, Inc.], as seller
and servicer (respectively, the "Seller" and the "Servicer"), and
[_____________], as trustee (the "Trustee").
WITNESSETH:
In consideration of the premises and the mutual agreements hereinafter set
forth, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Whenever used herein, unless the context
otherwise requires, the following words and phrases shall have the following
meanings:
"Accelerated Principal Distribution Amount" means, with respect to any
Distribution Date, the positive difference, if any, between the Target
Overcollateralization Amount and the Current Overcollateralization Amount.
"Adjusted Certificate Principal Balance" means, with respect to any Class
of Subordinate Certificates and any Distribution Date, the Certificate Principal
Balance of the related Class after giving effect to the distributions made on
the immediately preceding Distribution Date, less any Liquidation Loss Amount
allocated to such Class on such preceding Distribution Date.
"Advance" means, with respect to any Due Period and Contract that was
Outstanding as of the first day of such Due Period, the amount, if any, of that
portion of the related Monthly Payment comprising interest accruing with respect
to such Contract that is due in such Due Period that was not timely paid.
"Advance Reimbursement Amount" means any amount received or deemed to be
received by the Servicer pursuant to Section 6.03(c) in reimbursement of an
Advance made out of its own funds.
"Affiliate" means, with respect to any specified Person, 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 and all amendments
hereof and supplements hereto.
"Applicants" shall have the meaning specified in Section 4.07.
"Appraised Value" means, with respect to any Manufactured Home, the value
of such Manufactured Home as determined by a professional appraiser or an
employee of the Servicer who, as part of such employment, regularly appraises
manufactured housing units.
"APR" of a Contract means the annual interest rate specified in such
Contract.
"Authenticating Agent" means an authenticating agent appointed pursuant to
Section 4.08.
"Available Distribution Amount" means, with respect to any Distribution
Date, an amount equal to (i) the sum of (a) Monthly Payments due during the
related Due Period to the extent such payments were made by the related Obligor
or advanced by the Servicer and (b) unscheduled payments received with respect
to the Contracts during the related Prepayment Period, including principal
prepayments, Net Liquidation Proceeds and net insurance proceeds, reduced by
(ii) the sum of (a) aggregate Repossession Profits and (b) amounts permitted to
be withdrawn by the Servicer from the Collection Account pursuant to Section
6.02(a)(i) through (a)(viii).
"Average Sixty-Day Delinquency Ratio" means, with respect to any
Distribution Date, the average of the Sixty-Day Delinquency Ratios for such
Distribution Date and the two immediately preceding Distribution Dates.
"Average Thirty-Day Delinquency Ratio" means, with respect to any
Distribution Date, the average of the Thirty-Day Delinquency Ratios for such
Distribution Date and the two immediately preceding Distribution Dates.
"Benefit Plan" means an employee benefit plan subject to Section 406 of
ERISA or Section 4975 of the Code.
"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 (i) a Saturday or Sunday or (ii) a
day on which banking institutions in the States of New York or [________] are
authorized or obligated by law or executive order to be closed.
"Carryover Interest Distribution Amount" means, with respect to a Class of
Certificates and a Distribution Date, the sum of (i) any Interest Distribution
Amount for such Class distributable on the preceding Distribution Date but not
distributed plus, to the extent legally permissible, interest accrued on any
such amount during the related Interest Accrual Period at the related
Pass-Through Rate and (ii) any amounts distributable under clause (i) above or
this clause (ii) on the preceding Distribution Date but not distributed plus, to
the extent legally permissible, interest accrued on any such amount during the
related Interest Accrual Period at the related Pass-Through Rate.
"Certificate Account" means the custodial account or accounts created and
maintained pursuant to Section 6.04.
"Certificate Owner" means, with respect to a Book-Entry Certificate, the
person who is the beneficial owner of the related Certificate.
"Certificate Principal Balance" of each Class of Certificates means its
Initial Certificate Principal Balance reduced by all distributions in respect of
principal on such Class.
"Certificate Register" and "Certificate Registrar" mean the register
maintained and the registrar (or any successor thereto) appointed pursuant to
Section 4.02.
"Certificateholder" or "Holder" means the Person in whose name a
Certificate is regis- tered in the Certificate Register, except that, solely for
the purposes of giving any consent, notice, waiver, request or demand pursuant
to this Agreement, any Certificate registered in the name of the Depositor, the
Servicer or any Affiliate of the Servicer and any Certificate in respect of
which the Depositor, the Servicer or any Affiliate thereof is the Certificate
Owner (as shall be certified to the Trustee upon its request) shall be deemed
not to be outstanding and the Percentage Interest and Fractional Interest
evidenced thereby shall not be taken into account in determining whether the
requisite amount of Percentage Interests or Fractional Interests necessary to
effect such consent, notice, waiver, request or demand has been obtained,
unless, in the case of (i) the Class A Certificates, all Class A Certificates
are held by such Persons, (ii) the Class [__] Certificates, all Class A
Certificates and Class [__] Certi- ficates are held by such Persons, (iii) the
Class [__] Certificates, all Class A Certificates, Class [__] Certificates and
Class [__] Certificates or (iv) the Class [__] Certificates, all Certificates
are held by such Persons, or, in each case, the Certificates of the related
Class or Classes have been fully paid.
"Certificates" means the Class A Certificates, the Class [__] Certificates,
the Class [__] Certificates and the Class [__] Certificates.
"Class" means all Certificates whose form is identical except for variation
in denomination, principal amount or owner or designation of class.
"Class A Certificate Principal Balance" means, at any time, the Class A
Initial Certificate Principal Balance minus the sum of all amounts previously
distributed to the Class A Certificateholders pursuant to Section 6.01(a)(v),
(a)(vi) and (a)(xvi).
"Class A Certificates" means any one of the Class [__], Class [__], Class
[__], Class [__], Class [__], Class [__] or Class [__] Certificates.
"Class A Distribution Amount" means, with respect to any Distribution Date,
the sum of the Class [__], Class [__], Class [__], Class [__], Class [__], Class
[__] and Class [__] Distribution Amounts.
"Class A Formula Principal Distribution Amount" means, (i) with respect to
any Distribution Date prior to the Cross-over Date, the Formula Principal
Distribution Amount, (ii) on any Distribution Date as to which the Principal
Distribution Tests are not met, the Formula Principal Distribution Amount, or
(iii) on any other Distribution Date, the Class A Percentage of the Formula
Principal Distribution Amount. For any Distribution Date, if the Class A Formula
Principal Distribution Amount exceeds the Class A Certificate Principal Balance
less the Class A Unpaid Certificate Principal Shortfall, then such amounts will
be allocated first to the Class [__] Formula Principal Distribution Amount, then
to the Class [__] Formula Principal Distribution Amount and finally to the Class
[__] Formula Principal Distribution Amount.
"Class A Initial Certificate Principal Balance" means [___________].
"Class A Interest Distribution Amount" means, with respect to any
Distribution Date, the sum of the Class [__], Class [__], Class [__], Class
[__], Class [__], Class [__] and Class [__] Interest Distribution Amounts.
"Class A Percentage" means, with respect to any Distribution Date, the
percentage equivalent of a fraction (not to exceed one), the numerator of which
is the Class A Certificate Principal Balance immediately prior to such
Distribution Date and the denominator of which is the sum of the Class A
Certificate Principal Balance, the Class [__] Adjusted Certificate Principal
Balance and the Class [__] Adjusted Certificate Principal Balance, each
immediately prior to such Distribution Date.
"Class A Unpaid Certificate Principal Shortfall" means, with respect to any
Distribution Date, the excess, if any, of all Formula Principal Distribution
Amounts distributable on the Class A Certificates over the actual amount
distributed to the Class A Certificates in respect of Formula Principal
Distribution Amounts.
"Class [__] Certificate" means the Certificate designated Class [__],
executed and authenticated as provided herein, substantially in the form set
forth in Exhibit F and H.
"Class [__] Certificate Principal Balance" means, at any time, the Class
[__] Initial Certificate Principal Balance minus the sum of all amounts
previously distributed to the Class [__] Certificateholders pursuant to Section
6.01(a)(xvi) and clause (A) of Section 6.01(a)(vi).
"Class [__] Distribution Amount" means, with respect to any Distribution
Date, the aggregate amount distributed to the Class [__] Certificateholders
pursuant to Section 6.01(a).
"Class [__] Initial Certificate Principal Balance" means [_______].
"Class [__] Pass-Through Rate" means [___]% per annum.
"Class [__] Certificate" means any one of the Certificates designated Class
[__], executed and authenticated as provided herein, substantially in the form
set forth in Exhibits B, D and I.
"Class [__] Certificate Principal Balance" means, at any time, the Class
[__] Initial Certificate Principal Balance minus the sum of all amounts
previously distributed to the Class [__] Certificateholders pursuant to Section
6.01(a)(v), (a)(xvi) and clause (B) of Section 6.01(a)(vi).
"Class [__] Distribution Amount" means, with respect to any Distribution
Date, the aggregate amount distributed to Class [__] Certificateholders on such
Distribution Date pursuant to Section 6.01(a).
"Class [__] Initial Certificate Principal Balance" means $[________].
"Class [__] Interest Distribution Amount" means, with respect to any
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the Class [__] Pass-Through Rate on the Class [__]
Certificate Principal Balance as of the immediately preceding Distribution Date
(or, in the case of the first Distribution Date, on the Class [__] Initial
Certificate Principal Balance).
"Class [__] Pass-Through Rate" means [____]% per annum.
"Class [__] Certificate" means any one of the Certificates designated as
Class [__], executed and authenticated as provided herein, substantially in the
form set forth in Exhibits B, D and I.
"Class [__] Certificate Principal Balance" means, at any time, the Class
[__] Initial Certificate Principal Balance minus the sum of all amounts
previously distributed to the Class [__] Certificateholders pursuant to Section
6.01(a)(v), (a)(xvi) and clause (C) of Section 6.01(a)(vi).
"Class [__] Distribution Amount" means, with respect to any Distribution
Date, the aggregate amount distributed to the Class [__] Certificateholders on
such Distribution Date pursuant to Section 6.01(a).
"Class [__] Initial Certificate Principal Balance" means $[_________].
"Class [__] Interest Distribution Amount" means, with respect to any
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the Class [__] Pass-Through Rate on the Class [__]
Certificate Principal Balance as of the immediately preceding Distribution Date
(or, in the case of the first Distribution Date, on the Class [__] Initial
Certificate Principal Balance).
"Class [__] Pass-Through Rate" means [____]% per annum.
"Class [__] Certificate" means any one of the Certificates designated Class
[__], executed and authenticated as provided herein, substantially in the form
set forth in Exhibits B, D and I.
"Class [__] Certificate Principal Balance" means, at any time, the Class
[__] Initial Certificate Principal Balance minus the sum of all amounts
previously distributed to the Class [__] Certificateholders pursuant to Section
6.01(a)(v), (a)(xvi) and clause (D) of Section 6.01(a)(vi).
"Class [__] Distribution Amount" means, with respect to any Distribution
Date, the aggregate amount distributed to the Class [__] Certificateholders on
such Distribution Date pursuant to Section 6.01(a).
"Class [__] Initial Certificate Principal Balance" means $[_________].
"Class [__] Interest Distribution Amount" means, with respect to any
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the Class [__] Pass-Through Rate on the Class [__]
Certificate Principal Balance as of the immediately preceding Distribution Date
(or, in the case of the first Distribution Date, on the Class [__] Initial
Certificate Principal Balance).
"Class [__] Pass-Through Rate" means [_____]% per annum.
"Class [__] Certificate" means any one of the Certificates designated Class
[__], executed and authenticated as provided herein, substantially in the form
set forth in Exhibits B, D and I.
"Class [__] Certificate Principal Balance" means, at any time, the Class
[__] Initial Certificate Principal Balance minus the sum of all amounts
previously distributed to the Class [__] Certificateholders pursuant to Section
6.01(a)(v), (a)(xvi) and clause (E) of Section 6.01(a)(vi).
"Class [__] Distribution Amount" means, with respect to any Distribution
Date, the aggregate amount distributed to the Class [__] Certificateholders on
such Distribution Date pursuant to Section 6.01(a).
"Class [__] Initial Certificate Principal Balance" means $[_____________]
"Class [__] Interest Distribution Amount" means, with respect to any
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the Class [__] Pass-Through Rate on the Class [__]
Certificate Principal Balance as of the immediately preceding Distribution Date
(or, in the case of the first Distribution Date, on the Class [__] Initial
Certificate Principal Balance).
"Class [__] Pass-Through Rate" means [_____]% per annum.
"Class [__] Certificate" means any one of the Certificates designated Class
[__], executed and authenticated as provided herein, substantially in the form
set forth in Exhibits B, D and I.
"Class [__] Certificate Principal Balance" means, at any time, the Class
[__] Initial Certificate Principal Balance minus the sum of all amounts
previously distributed to the Class [__] Certificateholders pursuant to Section
6.01(a)(v), (a)(xvi) and clause (F) of Section 6.01(a)(vi).
"Class [__] Distribution Amount" means, with respect to any Distribution
Date, the aggregate amount distributed to the Class [__] Certificateholders on
such Distribution Date pursuant to Section 6.01(a).
"Class [__] Initial Certificate Principal Balance" means $[_________].
"Class [__] Interest Distribution Amount" means, with respect to any
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the Class [__] Pass-Through Rate on the Class [__]
Certificate Principal Balance as of the immediately preceding Distribution Date
(or, in the case of the first Distribution Date, on the Class [__] Initial
Certificate Principal Balance).
"Class [__] Pass-Through Rate" means [_____]% per annum.
"Class [__] Certificate" means any one of the Certificates designated Class
[__], executed and authenticated as provided herein, substantially in the form
set forth in Exhibits B, D and I.
"Class [__] Certificate Principal Balance" means, at any time, the Class
[__] Initial Certificate Principal Balance minus the sum of all amounts
previously distributed to the Class [__] Certificateholders pursuant to Section
6.01(a)(v), (a)(xvi) and clause (G) of Section 6.01(a)(vi).
"Class [__] Distribution Amount" means, with respect to any Distribution
Date, the aggregate amount distributed to the Class [__] Certificateholders on
such Distribution Date pursuant to Section 6.01(a).
"Class [__] Initial Certificate Principal Balance" means $[________].
"Class [__] Interest Distribution Amount" means, with respect to any
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the Class [__] Pass-Through Rate on the Class [__]
Certificate Principal Balance as of the immediately preceding Distribution Date
(or, in the case of the first Distribution Date, on the Class [__] Initial
Certificate Principal Balance).
"Class [__] Pass-Through Rate" means [_____]% per annum.
"Class [__] Adjusted Certificate Principal Balance" means, with respect to
a Distribution Date, the sum of the Class [__] Adjusted Certificate Principal
Balance and the Class [__] Adjusted Certificate Principal Balance.
"Class [__] Certificate" means any one of the Class [__] or Class [__]
Certificates.
"Class [__] Certificate Principal Balance" means, at any time, the sum of
the Class [__] Certificate Principal Balance and the Class [__] Certificate
Principal Balance.
"Class [__] Distribution Amount" means, with respect to any Distribution
Date, the aggregate amount distributed to Class [__] Certificateholders on such
Distribution Date pursuant to Section 6.01(a).
"Class [__] Initial Certificate Principal Balance" means $[______________]
"Class [__] Adjusted Certificate Principal Balance" means, with respect to
any Distribution Date, the Class [__] Certificate Principal Balance as of such
Distribution Date minus the Class [__] Liquidation Loss Amount, if any.
"Class [__] Certificate" means any one of the Certificates designated Class
[__], executed and authenticated as provided herein, substantially in the form
set forth in Exhibits C, D and I.
"Class [__] Certificate Principal Balance" means, at any time, the Class
[__] Initial Certificate Principal Balance minus the sum of all amounts
previously distributed to the Class [__] Certificateholders pursuant to Section
6.01(a)(xi) and (a)(xii).
"Class [__] Formula Principal Distribution Amount" means (i) with respect
to any Distribution Date as of which the Class A Certificate Principal Balance
and the Class [__] Certificate Principal Balance have not been reduced to zero
and prior to the Cross-over Date, zero, (ii) on any Distribution Date as to
which the Principal Distribution Tests are not met and the Class A Certificate
Principal Balance and the Class [__] Certificate Principal Balance have not been
reduced to zero, (iii) on any Distribution Date as to which the Principal
Distribution Tests are not met and the Class A Certificate Principal Balance and
the Class [__] Certificate Principal Balance have been reduced to zero, the
Formula Principal Distribution Amount, or (iv) on any other Distribution Date,
the Class [__] Percentage of the Formula Principal Distribution Amount. For any
Distribution Date, if the Class [__] Formula Principal Distribution Amount
exceeds the Class [__] Certificate Principal Balance less the Class [__] Unpaid
Certificate Principal Shortfall, then such amounts will be allocated to the
Class [__] Formula Principal Distribution Amount.
"Class [__] Initial Certificate Principal Balance" means $[_________].
"Class [__] Interest Distribution Amount" means, with respect to any
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the Class [__] Pass-Through Rate on the Class [__]
Adjusted Certificate Principal Balance as of the immediately preceding
Distribution Date (or, in the case of the first Distribution Date, on the Class
[__] Initial Certificate Principal Balance).
"Class [__] Liquidation Loss Amount" means, with respect to any
Distribution Date, the lesser of (i) the amount, if any, by which the sum of the
Class A, Class [__] and Class [__] Certificate Principal Balances exceeds the
Pool Balance and (ii) the Class [__] Certificate Principal Balance, in each case
after giving effect to all distributions of principal made on such Distribution
Date.
"Class [__] Liquidation Loss Interest Amount" means, with respect to any
Distribution Date, interest accrued during the related Interest Accrual Period
at the Class [__] Pass- Through Rate on the Class [__] Liquidation Loss Amount,
if any, for the immediately preceding Distribution Date.
"Class [__] Pass-Through Rate" means, with respect to any Distribution
Date, the lesser of (i) [___]% per annum and (ii) the Weighted Average Net
Contract Rate.
"Class [__] Percentage" means, for any Distribution Date, the percentage
derived from the fraction (which shall not be greater than one), the numerator
of which is the Class [__] Adjusted Certificate Principal Balance immediately
prior to such Distribution Date and the denominator of which is the sum of the
Class A Certificate Principal Balance, the Class [__] Adjusted Certificate
Principal Balance and the Class [__] Adjusted Certificate Principal Balance,
each immediately prior to such Distribution Date.
"Class [__] Unpaid Certificate Principal Shortfall" means, with respect to
any Distribution Date, the excess, if any, of all Formula Principal Distribution
Amounts distributable on the Class [__] Certificates over the actual amount
distributed to the Class [__] Certificates in respect of Formula Principal
Distribution Amounts.
"Class [__] Unpaid Liquidation Loss Interest Shortfall" means, with respect
to any Distribution Date, the sum of (i) any Liquidation Loss Interest Amount
distributable on the preceding Distribution Date but not distributed plus, to
the extent legally permissible, interest accrued on any such amount during the
related Interest Accrual Period at the Class [__] Pass- Through Rate and (ii)
any amounts distributable under clause (i) above or this clause (ii) on the
preceding Distribution Date but not distributed plus, to the extent legally
permissible, interest accrued on any such amount during the related Interest
Accrual Period at the Class [__] Pass-Through Rate.
"Class [__] Adjusted Certificate Principal Balance" means, with respect to
any Distribution Date, the Class [__] Certificate Principal Balance as of such
Distribution Date minus the Class [__] Liquidation Loss Amount, if any.
"Class [__] Certificate" means any one of the Certificates designated Class
[__], executed and authenticated as provided herein, substantially in the form
set forth in Exhibits C, D and I.
"Class [__] Certificate Principal Balance" means, at any time, the Class
[__] Initial Certificate Principal Balance minus the sum of all amounts
previously distributed to the Class [__] Certificateholders pursuant to Section
6.01(a)(xiv) and (a)(xv).
"Class [__] Floor Amount" means, with respect to a Distribution Date (i)
[___]% of the Cut-off Date Pool Balance, if the Class A Certificate Principal
Balance, the Class [__] Certificate Principal Balance and the Class [__]
Certificate Principal Balance have not been reduced to zero immediately prior to
such Distribution Date, and (ii) zero, if the Class A Certificate Principal
Balance, the Class [__] Certificate Principal Balance and the Class [__]
Certificate Principal Balance have been reduced to zero immediately prior to
such Distribution Date.
"Class [__] Formula Principal Distribution Amount" means (i) with respect
to any Distribution Date as of which the Class A Certificate Principal Balance,
the Class [__] Certificate Principal Balance and the Class [__] Certificate
Principal Balance have not been reduced to zero and prior to the Cross-over
Date, zero, (ii) on any Distribution Date as to which the Principal Distribution
Tests are not met and the Class A Certificate Principal Balance, the Class [__]
Certificate Principal Balance and the Class [__] Certificate Principal Balance
have not been reduced to zero, (iii) on any Distribution Date as to which the
Principal Distribution Tests are not met and the Class A Certificate Principal
Balance, the Class [__] Certificate Principal Balance and the Class [__]
Certificate Principal Balance have been reduced to zero, the Formula Principal
Distribution Amount, or (iv) on any other Distribution Date, the Class [__]
Percentage of the Formula Principal Distribution Amount. If the Class A
Certificate Principal Balance, the Class [__] Certificate Principal Balance and
the Class [__] Certificate Principal Balance have not been reduced to zero on or
before a Distribution Date, then amounts then allocable as the Class [__]
Formula Principal Distribution Amount shall be allocated first to the Class [__]
Formula Principal Distribution Amount, next to the Class [__] Formula Principal
Distribution Amount, and finally to the Class A Formula Principal Distribution
Amount, to the extent that allocation of such amounts to the Class [__] Formula
Principal Distribution Amount would reduce the Class [__] Certificate Principal
Balance below the Class [__] Floor Amount.
"Class [__] Initial Certificate Principal Balance" means $[_________].
"Class [__] Interest Distribution Amount" means, with respect to any
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the Class [__] Pass-Through Rate on the Class [__]
Adjusted Certificate Principal Balance as of the immediately preceding
Distribution Date (or, in the case of the first Distribution Date, on the Class
[__] Initial Certificate Principal Balance).
"Class [__] Liquidation Loss Amount" means, with respect to any
Distribution Date, the lesser of (i) the amount, if any, by which the sum of the
Class A, Class [__], Class [__] and Class [__] Certificate Principal Balances
exceeds the Pool Balance and (ii) the Class [__] Certificate Principal Balance,
in each case after giving effect to all distributions of principal made on such
Distribution Date.
"Class [__] Liquidation Loss Interest Amount" means, with respect to any
Distribution Date, interest accrued during the related Interest Accrual Period
at the Class [__] Pass- Through Rate on the Class [__] Liquidation Loss Amount,
if any, for the immediately preceding Distribution Date.
"Class [__] Pass-Through Rate" means, with respect to any Distribution
Date, the lesser of (i) [____]% per annum and (ii) the Weighted Average Net
Contract Rate.
"Class [__] Percentage" means, for any Distribution Date, the percentage
derived from the fraction (which shall not be greater than one), the numerator
of which is the Class [__] Adjusted Certificate Principal Balance immediately
prior to such Distribution Date and the denominator of which is the sum of the
Class A Certificate Principal Balance, the Class [__] Adjusted Certificate
Principal Balance and the Class [__] Adjusted Certificate Principal Balance,
each immediately prior to such Distribution Date.
"Class [__] Unpaid Certificate Principal Shortfall" means, with respect to
any Distribution Date, the excess, if any, of all Formula Principal Distribution
Amounts distributable on the Class [__] Certificates over the actual amount
distributed to the Class [__] Certificates in respect of Formula Principal
Distribution Amounts.
"Class [__] Unpaid Liquidation Loss Interest Shortfall" means, with respect
to any Distribution Date, the sum of (i) any Liquidation Loss Interest Amount
distributable on the preceding Distribution Date but not distributed plus, to
the extent legally permissible, interest accrued on any such amount during the
related Interest Accrual Period at the Class [__] Pass- Through Rate and (ii)
any amounts distributable under clause (i) above or this clause (ii) on the
preceding Distribution Date but not distributed plus, to the extent legally
permissible, interest accrued on any such amount during the related Interest
Accrual Period at the Class [__] Pass-Through Rate.
"Class [__] Adjusted Certificate Principal Balance" means, with respect to
any Distribution Date, the Class [__] Certificate Principal Balance as of such
Distribution Date minus the Class [__] Liquidation Loss Amount, if any.
"Class [__] Certificate" means any one of the Certificates designated Class
[__], executed and authenticated as provided herein, substantially in the form
set forth in Exhibits E and I.
"Class [__] Certificate Principal Balance" means, at any time, the Class
[__] Initial Certificate Principal Balance minus the sum of all amounts
previously distributed to the Class [__] Certificateholders pursuant to Section
6.01(a)(viii) and (a)(ix).
"Class [__] Distribution Amount" means, with respect to any Distribution
Date, the aggregate amount distributed to the Class [__] Certificateholders on
such Distribution Date pursuant to Section 6.01(a).
"Class [__] Formula Principal Distribution Amount" means, (i) with respect
to any Distribution Date as to which the Class A Certificate Principal Balance
has not been reduced to zero and prior to the Cross-over Date, zero, (ii) on any
Distribution Date as to which the Principal Distribution Tests are not met and
the Class A Certificate Principal Balance has not been reduced to zero, (iii) on
any Distribution Date as to which the Principal Distribution Tests are not met
and the Class A Certificate Principal Balance has been reduced to zero, the
Formula Principal Distribution Amount or (iv) on any other Distribution Date,
the Class [__] Percentage of the Formula Principal Distribution Amount. For any
Distribution Date, if the Class [__] Formula Principal Distribution Amount
exceeds the Class [__] Certificate Principal Balance less the Class [__] Unpaid
Certificate Principal Shortfall, then such amounts will be allocated first to
the Class [__] Formula Principal Distribution Amount and then to the Class [__]
Formula Principal Distribution Amount.
"Class [__] Initial Certificate Principal Balance" means $[_________].
"Class [__] Interest Distribution Amount" means, with respect to any
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the Class [__] Pass-Through Rate on the Class [__]
Adjusted Certificate Principal Balance as of the immediately preceding
Distribution Date (or, in the case of the first Distribution Date, on the Class
[__] Initial Certificate Principal Balance).
"Class [__] Liquidation Loss Amount" means, with respect to any
Distribution Date, the lesser of (i) the amount, if any, by which the sum of the
Class A and Class [__] Certificate Principal Balances exceeds the Pool Balance
and (ii) the Class [__] Certificate Principal Balance, in each case after giving
effect to all distributions of principal made on such Distribution Date.
"Class [__] Liquidation Loss Interest Amount" means, with respect to any
Distribution Date, interest accrued during the related Interest Accrual Period
at the Class [__] Pass- Through Rate on the Class [__] Liquidation Loss Amount,
if any, for the immediately preceding Distribution Date.
"Class [__] Pass-Through Rate" means, with respect to any Distribution
Date, the lesser of (i) [____]% per annum and (ii) the Weighted Average Net
Contract Rate.
"Class [__] Percentage" means, for any Distribution Date, the percentage
derived from the fraction (which shall not be greater than one), the numerator
of which is the Class [__] Adjusted Certificate Principal Balance immediately
prior to such Distribution Date and the denominator of which is the sum of the
Class A Certificate Principal Balance, the Class [__] Adjusted Certificate
Principal Balance and the Class [__] Adjusted Certificate Principal Balance,
each immediately prior to such Distribution Date.
"Class [__] Unpaid Certificate Principal Shortfall" means, with respect to
any Distribution Date, the excess, if any, of all Formula Principal Distribution
Amounts distributable on the Class [__] Certificates over the actual amount
distributed to the Class [__] Certificates in respect of Formula Principal
Distribution Amounts.
"Class [__] Unpaid Liquidation Loss Interest Shortfall" means, with respect
to any Distribution Date, the sum of (i) any Liquidation Loss Interest Amount
distributable on the preceding Distribution Date but not distributed plus, to
the extent legally permissible, interest accrued on any such amount during the
related Interest Accrual Period at the Class [__] Pass- Through Rate and (ii)
any amounts distributable under clause (i) above or this clause (ii) on the
preceding Distribution Date but not distributed plus, to the extent legally
permissible, interest accrued on any such amount during the related Interest
Accrual Period at the Class [__] Pass-Through Rate.
"Class [__] Certificates" means any one of the Certificates designated
Class [__], executed and authenticated as provided herein, substantially in the
form set forth in Exhibits G, H and I.
"Class [__] Components" means each of the separate notional balance classes
treated as "regular interests" and defined in Section 10.12(g).
"Class [__] Distribution Amount" means, with respect to any Distribution
Date, the aggregate amount distributed to the Class [__] Certificateholders on
such Distribution Date pursuant to Section 6.01(a)(xvii).
"Class [__] Strip Amount" shall have the meaning specified in Section
10.12(g).
"Closing Date" means [_______, 199_].
"Code" means The Internal Revenue Code of 1986, as amended.
"Collection Account" means the custodial account or accounts created and
maintained pursuant to Section 6.04.
"Computer Tape" means the computer tape generated by the Seller which
provides information relating to the Contracts.
"Contract File" means[, with respect to each (1) Contract that is not a
Land Home Contract, (i) the original copy of the Contract; (ii) in the case of a
Contract not originated by IndyMac, the assignment of the related Contract from
the originator to IndyMac; and (iii) any extension, modification or waiver
agreement(s), and (2) each Land Home Contract, (i) the original copy of the
Contract; (ii) the related Mortgage with evidence of recording thereon (or, if
the original Mortgage has not yet been returned by the applicable recording
office, a copy thereof, certified by such recording office, which will be
replaced by the original Mortgage when it is so returned) and any title document
for the related Manufactured Home; (iii) an assignment in recordable form of the
Mortgage to the Trustee (which may be a blanket assignment if permitted in the
applicable jurisdiction); (iv) in the case of a Contract not originated by
IndyMac, the assignment of the related Contract from the originator to IndyMac;
(v) if applicable, the power of attorney granted to the Trustee; and (vi) any
extension, modification or waiver agreement(s)].
"Contract Pool" means the pool of Contracts held in the Trust Fund.
"Contract Principal Balance" means, with respect to any Contract and any
date of determination, the [scheduled] [actual] principal balance of such
Contract as of such date of determination [without giving effect to any
adjustments by reason of bankruptcy or similar proceedings or any waiver,
extension or grace period].
"Contract Schedule" means the list identifying each Contract constituting
part of the corpus of the Trust Fund, which list is attached hereto as Exhibit
A, and which identifies each Contract by contract number and name of the Obligor
and sets forth the Contract Principal Balance of each Contract as of the Cut-off
Date.
"Contracts" means the manufactured housing installment sales contracts and
installment loan agreements described in the Contract Schedule and constituting
part of the Trust Fund, which Contracts are to be sold and assigned by the
Depositor to the Trustee and which are the subject of this Agreement.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate business shall be administered, which
office at the date of execution of this Agreement is located at
[________________________], Attention: [________].
"Cross-over Date" means the later to occur of (i) the [__________]
Distribution Date and (ii) the first Distribution Date as of which the
percentage equivalent of a fraction (which shall not be greater than one) the
numerator of which is the aggregate Adjusted Certificate Principal Balance of
the Subordinate Certificates plus the Current Overcollateralization Amount for
such Distribution Date and the denominator of which is the Pool Balance on such
Distribution Date, equals or exceeds [___] times the percentage equivalent of a
fraction (which shall not be greater than one) the numerator of which is the
aggregate Initial Certificate Principal Balance of the Subordinate Certificates
and the denominator of which is the Cut-off Date Pool Balance.
"Cumulative Realized Loss Test" means, with respect to any Distribution
Date, the following:
(i) if such Distribution Date occurs between [__________] and [______], the
Cumulative Realized Loss Test will be satisfied if Cumulative Realized Losses as
of such Distribution Date are less than or equal to [___]% of the Cut-off Date
Pool Balance;
(ii) if such Distribution Date occurs between [________] and [_____], the
Cumulative Realized Loss Test will be satisfied if Cumulative Realized Losses as
of such Distribution Date are less than or equal to [___]% of the Cut-off Date
Pool Balance; and
(iii) if such Distribution Date occurs after [_______], the Cumulative
Realized Loss Test will be satisfied if Cumulative Realized Losses as of such
Distribution Date are less than or equal to [___]% of the Cut-off Date Pool
Balance;
"Cumulative Realized Losses" means, with respect to any Distribution Date,
the sum of Realized Losses with respect to such Distribution Date and each
preceding Distribution Date.
"Current Overcollateralization Amount" means, with respect to any
Distribution Date, the excess, if any, of (i) the Pool Balance over (ii) the sum
of the Certificate Principal Balances of all then-outstanding Certificates.
"Current Realized Loss Ratio" means, with respect to any Distribution Date,
a fraction, expressed as a percentage, the numerator of which is the aggregate
Realized Losses as of such Distribution Date and each of the two immediately
preceding Distribution Dates, multiplied by four, and the denominator of which
is the arithmetic average of the Pool Balance as of the third preceding
Distribution Date and the Pool Balance as of such Distribution Date.
"Cut-off Date" means [______, 199_].
"Cut-off Date Pool Balance" means $[_____________].
"Deficiency Event" means the Distribution Date, if any, on which the Pool
Balance becomes equal to or less than the Class A Certificate Principal Balance.
"Definitive Certificates" shall have the meaning specified in Section
4.03(b).
"Deposit Date" means, with respect to any Distribution Date, the Business
Day immediately preceding such Distribution Date.
"Depositor" means IndyMac ABS, Inc., or its successor in interest or any
successor under this Agreement appointed as herein provided.
"Depository" means DTC, the nominee of which is Cede & Co., as the
registered Holder of the Book-Entry Certificates, and its successors. The
Depository shall at all times be a "clearing corporation" as defined in Section
8-102(3) of the Uniform Commercial Code of the State of New York.
"Depository Participant" means a broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date" means, with respect to any Distribution Date, the
third Business Day preceding such Distribution Date.
"Distribution Date" means the [________] day of any month, or if such day
is not a Business Day, the first Business Day immediately succeeding such day,
commencing [_______, 199_].
"DTC" means The Depository Trust Company, and its successors.
"Due Date" means, with respect to any Contract, the day of the month
specified in such Contract on which each Monthly Payment is due, exclusive of
any grace period.
"Due Period" means, with respect to any Distribution Date, the period
commencing on the second day of the month preceding the month in which such
Distribution Date occurs and ending at the close of business on the first day of
the month in which such Distribution Date occurs.
"Electronic Ledger" means the electronic master record of the Seller's
manufactured housing installment sales contracts and installment loan agreements
clearly identifying each Contract that is part of the Trust Fund.
"Eligible Account" means an account that is either (i) maintained with a
depository institution organized under the laws of the United States or any
state, the deposits of which are insured by the Federal Deposit Insurance
Corporation to the fullest extent permitted by law, (a) the long-term deposit
rating or the long-term unsecured debt obligations of which (or in the case of
the principal bank in a bank holding company system, the long-term unsecured
debt obligations of such bank holding company, unless [______] is a Rating
Agency) have received from each Rating Agency one of its two highest long term
ratings, (b) the short-term unsecured debt obligations of which are rated in the
highest short-term rating category by the Rating Agencies or (c) the short term
deposits or commercial paper of which is rated [_] by [____] and, if rated by
[____], [__] by [____], (ii) a trust account maintained with the Trustee in its
corporate trust department in which the funds are either uninvested or invested
solely in Eligible Investments or (iii) otherwise acceptable to each Rating
Agency, as evidenced by a letter from such Rating Agency, without a reduction or
withdrawal of the rating of any Rated Certificates.
"Eligible Investments" means one or more of the following:
(i) obligations of, or guaranteed as to timely payments of principal
and interest by, the United States or any agency or instrumentality
thereof, which obligations are backed by the full faith and credit of the
United States;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition thereof;
provided that the long-term unsecured obligations of the party agreeing to
repurchase such obligations are at the time rated by each Rating Agency in
one of its two highest long term rating categories; provided further that
the short-term debt obligations of such party shall be rated [_] by [____]
and, if rated by [____], [_] by [____];
(iii) federal funds, certificates of deposit, time deposits and
bankers'acceptances, each of which shall not have an original maturity of
more than 90 days, of any depository institution or trust company
incorporated under the laws of the United States or any State (including
those of the Trustee or its affiliates); provided that the short-term
obligations of such depository institution or trust company shall have
received the highest rating by the Rating Agencies;
(iv) commercial paper (having original maturities of not more than 270
days) of any corporation incorporated under the laws of the United States
or any State; provided that such commercial paper shall be rated [_] by
[____] and, if rated by [____], [__] by [______];
(v) any money market or common trust fund rated in the highest rating
category by [____] and acceptable to [___] (including funds as to which the
Trustee may act as sponsor, manager, advisor or depository); and
(vi) other obligations or securities that are acceptable as an
Eligible Investment to each Rating Agency, as evidenced by a letter from
such Rating Agency, and will not result in a reduction in or withdrawal of
the rating of any Rated Certificates;
provided that no instrument shall be an Eligible Investment if such instrument
evidences a right to receive only interest payments with respect to the
obligations underlying such instru- ment; provided further that no instrument
shall be an Eligible Investment unless such instrument matures on the Deposit
Date next succeeding the date of investment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" means any of the events described in Section 9.01.
"Extension Fee" means any extension fee paid by the Obligor on a Contract.
"Final Scheduled Distribution Date" means the [_________] Distribution
Date.
["Fitch" means Fitch IBCA, Inc., and its successors.]
"Formula Principal Distribution Amount" means, with respect to any
Distribution Date, (a) the sum of the following amounts (i) the sum of the
principal components of all Monthly Payments scheduled to be made during the
related Due Period on the Contracts that were outstanding on the first day of
such Due Period (regardless of whether such Monthly Payments were advanced by
the Servicer or received from the related Obligors), not including any Monthly
Payments due on Liquidated Contracts or Repurchased Contracts; (ii) the sum of
the amounts of all Principal Prepayments received by the Servicer on the
Contracts during the related Prepayment Period; (iii) with respect to any
Contract that became a Liquidated Contract during the related Prepayment Period,
the Contract Principal Balance thereof on the date of liquidation thereof
(determined without giving effect to such liquidation); and (iv) with respect to
any Contract that became a Repurchased Contract during the related Prepayment
Period, the Contract Principal Balance thereof on the date of purchase or
repurchase thereof (determined without giving effect to such purchase or
repurchase); less (b) the Overcollateralization Reduction Amount, if any, for
such Distribution Date.
"Fractional Interest" means, with respect to any Certificate of any Class,
the product of (i) the Percentage Interest evidenced by such Certificate
multiplied by (ii) the amount derived from dividing the Certificate Principal
Balance of such Class by the sum of the Certificate Principal Balances of
Certificates of all Classes. For purposes of the foregoing, the Class [__] and
Class [__] Certificates will have a Certificate Principal Balance of zero.
"Hazard Insurance Policy" means, with respect to each Contract, the policy
of fire and extended coverage insurance required to be maintained for the
related Manufactured Home, pursuant to Section 5.07 which may be a blanket
insurance policy maintained by the Servicer.
"IndyMac" means [IndyMac, Inc.], and its successors.
"Interest Accrual Period" means, with respect to a Distribution Date, the
calendar month preceding the month in which the Distribution Date occurs.
Interest on the Certificates shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
"Interest Distribution Amount" means, with respect to a Class of
Certificates (other than the Class [__] Certificates) and a Distribution Date,
the amount of interest accrued during the related Interest Accrual Period at the
related Pass-Through Rate on, in the case of a Class [_] Certificate, the
Certificate Principal Balance of such Class of Certificates and, in the case of
a Class of Subordinate Certificates, the Adjusted Certificate Principal Balance
of such Class of Subordinate Certificates.
"Issuing REMIC" shall have the meaning set forth in Section 10.12.
"Land Home Contract" means a Contract that is secured, or intended to be
secured, by a lien on the real estate on which the related Manufactured Home is
located.
"Late Payment Fees" means any late payment fees paid by Obligors on
Contracts, determined in accordance with the terms thereof.
"Lien" means any lien, claim, charge, security interest or other
encumbrance.
"Liquidated Contract" means any defaulted Contract as to which the Servicer
has determined that all amounts which it expects to recover from or on account
of such Contract have been recovered; provided that any defaulted Contract in
respect of which the related Manufactured Home and, in the case of Land Home
Contracts, Mortgaged Property have been realized upon and disposed of and the
proceeds of such disposition have been received shall be deemed to be a
Liquidated Contract.
"Liquidation Expenses" means all reasonable out-of-pocket expenses
(exclusive of overhead expenses) which are incurred by the Servicer in
connection with the liquidation of any defaulted Contract, on or prior to the
date on which the related Manufactured Home and, in the case of Land Home
Contracts, Mortgaged Property are disposed of, including, without limitation,
reasonable legal fees and expenses, any unreimbursed amount expended by the
Servicer pursuant to Section 5.06 or 5.11 (to the extent such amount is
reimbursable pursuant to Section 5.06 or 5.08, as the case may be) respecting
such Contract and any unreimbursed expenditures for property taxes or for
property restoration or preservation that are related to such liquidation.
"Liquidation Loss Amount" means, with respect to each Distribution Date,
the amount, if any, by which (i) the aggregate Certificate Principal Balance of
all the Certificates, after all distributions have been made on such
Distribution Date, exceeds (ii) the Pool Balance.
"Liquidation Loss Interest Amount" means, with respect to a Class of
Subordinate Certificates and a Distribution Date, interest accrued during the
related Interest Accrual Period at the related Pass-Through Rate on the
Liquidation Loss Amount for such Class as of the immediately preceding
Distribution Date.
"Liquidation Proceeds" means cash (including insurance proceeds other than
those applied to the restoration of the related Manufactured Home or released to
the related Obligor in accordance with the normal servicing procedures of the
Servicer) received in connection with the liquidation of defaulted Contracts,
whether through repossession or otherwise.
"Loan-to-Value Ratio" means the fraction, expressed as a percentage, the
numerator of which is the original principal balance of the related Contract and
the denominator of which is the Value in respect of the Contract.
"Manufactured Home" means a unit of manufactured housing which meets the
requirements of Section 25(e)(10) of the Code, including all accessions thereto,
securing the indebtedness of the Obligor under a Contract.
"Monthly Payment" means, with respect to any Contract, the amount of each
fixed monthly payment payable by the related Obligor in accordance with the
terms thereof without giving effect to any adjustments by reason of bankruptcy
or similar proceedings or any waiver, extension or grace period.
"Monthly Report" means the monthly report described in Section 7.01.
"Monthly Servicing Fee" means, as of any Distribution Date, an amount equal
to [_____] of [___]% (or, in the case of a successor Servicer engaged at any
time after IndyMac is no longer the Servicer, the percentage agreed upon
pursuant to Section 8.08) of the Pool Balance for the immediately preceding
Distribution Date.
"Monthly Trustee Fee" means, as of any Distribution Date, an amount equal
to one- twelfth of [___]% of the Pool Balance for the immediately preceding
Distribution Date; provided that the aggregate Monthly Trustee Fee for any
calendar year shall not be less than $[____].
["Moody's" means Xxxxx'x Investors Service, Inc., and its successors.]
"Mortgage" means the mortgage creating a first lien on an estate in fee
simple in the real property securing a Contract.
"Mortgaged Property" means the property subject to a Mortgage.
"Net Liquidation Loss" means, with respect to a Liquidated Contract, the
amount, if any, by which (i) the unpaid principal balance of such Liquidated
Contract plus accrued and unpaid interest thereon at the related APR to the date
on which such Contract became a Liquidated Contract exceeds (ii) the related Net
Liquidation Proceeds.
"Net Liquidation Proceeds" means, with respect to any Liquidated Contract,
Liquidation Proceeds net of the sum of (i) Liquidation Expenses and (ii) any
amount required to be paid to the Obligor or any other party with an interest in
the Manufactured Home or any related Mortgaged Property that is senior to the
interest of the Trust Fund.
"Nonrecoverable Advance" means any Advance made or proposed to be made
pursuant to Section 6.03, which the Servicer believes, in its good faith
judgment, is not, or if made would not be, ultimately recoverable from
Liquidation Proceeds or otherwise from the related Contract. 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 deter-
mination by the Servicer that any Advance is, or if made would constitute, a
Nonrecoverable Advance, shall be evidenced by an Officer's Certificate of the
Servicer delivered to the Trustee and stating the reasons for such
determination.
"Obligor" means each person who is indebted under a Contract or who has
acquired a Manufactured Home subject to a Contract.
"Officer's Certificate" means a certificate signed by the President, a Vice
President, the Treasurer, an Assistant Treasurer, the Secretary, an Assistant
Secretary or any other duly authorized officer of the Depositor or the Servicer,
as the case may be, and delivered to the Trustee as required by this Agreement.
"Opinion of Counsel" means a written opinion of counsel, who may be the
counsel for the Depositor or the Servicer, addressed and delivered to the
Trustee and any other entity or entities specified herein who shall be
reasonably acceptable to the Trustee.
"Original Value" means, with respect to any Manufactured Home that was new
at the time the related Contract was originated, the purchase price of such
Manufactured Home (including, for this purpose, any Mortgaged Property not
constituting a part of the Manufactured Home), plus taxes and, to the extent
financed under such Contract, fees, insurance and prepaid finance charges. With
respect to any Manufactured Home that was used at the time the related Contract
was originated, the total delivered sales price of such Manufactured Home
(including, for this purpose, any Mortgaged Property not constituting a part of
the Manufac- tured Home), plus taxes and, to the extent financed under such
Contract, fees, insurance and prepaid finance charges.
"Outstanding" means, with respect to any Contract as to the time of
reference thereto, a Contract that has not been fully prepaid and has not become
either a Liquidated Contract or a Repurchased Contract prior to such time of
reference.
"Outstanding Amount Advanced" means, with respect to any Distribution Date,
the aggregate of all Advances remitted by the Servicer pursuant to Section 6.03
less the aggregate of all Advance Reimbursement Amounts actually received prior
to such Distribution Date.
"Overcollateralization Reduction Amount" means, with respect to any
Distribution Date, the excess, if any, of (i) the Current Overcollateralization
Amount over (ii) the Target Overcollateralization Amount.
"Ownership Interest" means any legal or beneficial, direct or indirect,
ownership or other interest.
"Pass-Through Rate" means, as to any Class of Certificates, the Class [__]
Pass-Through Rate, the Class [__] Pass-Through Rate, the Class [__] Pass-Through
Rate, the Class [__] Pass-Through Rate, the Class [__] Pass-Through Rate, the
Class [__] Pass-Through Rate, the Class [__] Pass-Through Rate, the Class [__]
Pass-Through Rate, the Class [__] Pass-Through Rate or the Class [__]
Pass-Through Rate, as the case may be.
"Paying Agent" means any paying agent appointed pursuant to Section 4.06.
"Percentage Interest" means, with respect to a Certificate of any Class,
the percentage interest evidenced thereby in distributions required to be made
on the Certificates of such Class, such percentage interest being equal to the
percentage obtained by dividing the denomination of such Certificate by the
aggregate of the denominations of all of the outstanding Certificates of such
Class (or, in the case of a Class [__] Certificate, being equal to the
percentage specified on the face of such Class [__] Certificate).
"Permitted Transferee" means any Person other than (i) the United States, a
State or any political subdivision thereof, any possession of the United States
or any agency or instru- mentality of any of the foregoing (other than an
instrumentality that is a corporation if all of its activities are subject to
tax and, except for the Federal Home Loan Mortgage Corporation, a majority of
its board of directors is not selected by any such governmental unit); (ii) a
foreign government, international organization or agency or instrumentality of
either of the foregoing (other than an instrumentality that is a corporation if
all of its activities are subject to tax and a majority of its board of
directors is not selected by any such governmental unit); (iii) an organization
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Code Section 511 on unrelated business taxable income) on any excess
inclusions (as defined in Code Section 860E(c)(1)) with respect to a Class [__]
Certificate (except certain farmers' cooperatives described in Code Section
521); (iv) rural electric and telephone cooperatives described in Code Section
1381(a)(2); (v) a Non-U.S. Person; and (vi) any other Person so designated by
the Servicer based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Class [__] Certificate to such Person may cause the Trust Fund to
fail to qualify as a two-tiered REMIC at any time that any Certificates are out-
standing. For purposes of the foregoing, the terms "United States," "State" and
"International Organization" shall have the meanings set forth in Code Section
7701 or successor provisions. A "Non-U.S. Person" means an individual,
corporation, partnership or other person other than 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 or any political subdivision thereof,
an estate that is subject to U.S. federal income tax regardless of the source of
its income or, for trusts whose taxable years begin after December 31, 1996, a
trust whose administration is subject to the primary supervision of a U.S. court
and which has one or more U.S. fiduciaries who have the authority to control all
substantial decisions of the trust.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or any agency or political subdivision thereof.
"Pool Factor" means, with respect to any Distribution Date and any Class of
Certificates, the percentage, carried out to seven decimal places, obtained by
dividing the Certificate Principal Balance of such Class of Certificates, after
giving effect to all distributions made on such Distribution Date, by the
Initial Certificate Principal Balance of such Class of Certificates.
"Pool Balance" means, with respect to any Distribution Date, (i) the
Cut-off Date Pool Balance less (ii) the aggregate of the Formula Principal
Distribution Amounts (without subtracting therefrom any Overcollateralization
Reduction Amount) for such Distribution Date and all prior Distribution Dates.
"Pooling REMIC" shall have the meaning set forth in Section 10.12.
"Prepayment Interest Excess" means, as to any Principal Prepayment in full
received by the Servicer after a Contract's Due Date during any Prepayment
Period, all amounts paid by the related Obligor in respect of interest during
such Prepayment Period in excess of one month's interest at the related APR on
such Principal Prepayment.
"Prepayment Interest Shortfall" means, as to any Principal Prepayment in
full received by the Servicer prior to a Contract's Due Date during any
Prepayment Period, the amount, if any, by which one month's interest at the
related APR on such Principal Prepayment exceeds the amount of interest paid in
connection with such Principal Prepayment.
"Prepayment Period" means, with respect to a Distribution Date, the
calendar month immediately preceding the month in which such Distribution Date
occurs.
Principal Distribution Tests" will be satisfied with respect to any
Distribution Date, if (i) the Average Sixty-Day Delinquency Ratio is less than
or equal to [___]%, (ii) the Average Thirty-Day Delinquency Ratio is less than
or equal to [___]%, (iii) the Cumulative Realized Loss Test is satisfied and
(iv) the Current Realized Loss Ratio does not exceed [___]%.
"Principal Prepayment" means, with respect to any Contract, a payment or
other recovery of principal made on or in respect thereof (exclusive of
Liquidation Proceeds) which is received in advance of the related Due Date and
applied upon receipt (or, in some instances with respect to a partial
prepayment, upon one or more future Due Dates) to reduce the Contract Principal
Balance of such Contract prior to the Due Date or Due Dates on which such
principal amounts are due.
"PTCE 95-60" means Department of Labor Prohibited Transaction Class
Exemption 95-60.
"Qualified Bidders" means firms and institutions that are engaged in the
business of buying and selling manufactured housing installment sales and
installment loan contracts.
"Rated Certificates" means each Class of Certificates that has been rated
by a Rating Agency.
"Rating Agencies" means [___] and [_____].
"Realized Losses" means, with respect to any Distribution Date, the
aggregate Net Liquidation Losses of all Contracts that became Liquidated
Contracts during the related Due Period.
"Record Date" means (a) with respect to any Distribution Date and the
Book-Entry Certificates, the close of business on the day immediately preceding
such Distribution Date, and (b) with respect to any Distribution Date and the
Definitive Certificates (including the Class [____], Class [__] and Class [___]
Certificates), the close of business on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs.
"REMIC" means a real estate mortgage investment conduit within the meaning
of Section 860D(a) of the Code.
"REMIC Provisions" means provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Section 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.
"REO Property" means any Manufactured Home or Mortgaged Property acquired
by the Servicer in a repossession or foreclosure.
"Repossession Profits" means, with respect to any Distribution Date, the
excess, if any, of Net Liquidation Proceeds in respect of each Contract that
became a Liquidated Contract during the related Due Period over the sum of the
Contract Principal Balance of such Contract plus accrued and unpaid interest
thereon at the related APR from the Due Date to which interest was last paid by
the Obligor to the Due Date in the Due Period in which such Contract became a
Liquidated Contract.
"Repurchase Price" means, with respect to any Repurchased Contract, an
amount equal to the unpaid principal balance of such Contract as of the
beginning of the month of repurchase plus accrued interest from the date through
which interest was last paid to its Due Date in the month in which such Contract
is repurchased.
"Repurchased Contract" means a Contract repurchased or required to be
repurchased by the Seller pursuant to Section 3.05(a).
"Responsible Officer" means, when used with respect to the Trustee, the
chairman or vice chairman of the board of directors, the chairman or vice
chairman of any executive committee of the board of directors, the president,
any Vice President, any assistant vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any trust officer or assistant trust officer, the controller, any
assistant controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"Sale and Purchase Agreement" means that certain sale and purchase
agreement, dated as of the date hereof, between the Seller and the Depositor,
regarding the sale by the Seller and purchase by the Depositor of the Contracts.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" means [IndyMac, Inc.], in its capacity as Seller under the Sale
and Purchase Agreement and this Agreement, and its successors.
"Servicer" means [IndyMac, Inc.], in its capacity as Servicer under the
Sale and Purchase Agreement and this Agreement, or its successor in interest or
any successor under this Agreement as provided by Section 8.07.
"Servicer's Certificate" means an Officer's Certificate of the Servicer
completed, executed and delivered pursuant to Section 7.02, substantially in the
form of Exhibit J.
"Servicing File" means [all documents, records and other items maintained
by the Servicer with respect to a Contract and not included in the corresponding
Contract File, including the original title document or application for title,
the credit application, credit reports and verifications, appraisals, tax and
insurance records, payment records, insurance claim records, correspondence and
the Computer Tape].
"Servicing Officer" means any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Contracts whose name
appears on a list of servicing officers furnished to the Trustee by the
Servicer, as such list may from time to time be amended.
"Sixty-Day Delinquency Ratio" means, with respect to any Distribution Date,
a fraction, expressed as a percentage, the numerator of which is the aggregate
Contract Principal Balance of all Contracts that were delinquent 60 or more days
as of the end of the preceding calendar month (including Contracts in respect of
which the related Manufactured Homes have been repossessed but are still in
inventory), and the denominator of which is the Pool Balance for such
Distribution Date; provided that no Monthly Payment shall be considered
delinquent if 90% of the amount thereof is received on or prior to its scheduled
Due Date; provided further that if the amount remaining outstanding with respect
to any Monthly Payment referred to in the preceding provisio is not received in
full on or before the next Due Date, such Contract will be deemed delinquent as
of such next Due Date.
"State" means any state of the United States or the District of Columbia.
"Subordinate Certificates" means the Class [__] and Class [__]
Certificates.
"Subservicer" means any Person to whom the Servicer has delegated its
duties as Servicer pursuant to a Subservicing Agreement.
"Subservicing Agreement" means an agreement between the Servicer and any
Subservicer, as contemplated by Section 5.03.
"Target Overcollateralization Amount" means (i) with respect to any
Distribution Date prior to the Cross-over Date, [__]% of the Cut-off Date Pool
Balance, and (ii) for any other Distribution Date, the lesser of (a) [__]% of
the Cut-off Date Pool Balance and (b) [___]% of the Pool Balance; provided that,
so long as any Class of Certificates is outstanding, the Target
Overcollateralization Amount will not be less than [___]% of the Cut-off Date
Pool Balance.
"Tax" means any tax, including interest, penalties, additional amounts or
additions to tax.
"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 Trustee.
"Tax Matters Person Certificate" means the Class [__] Certificate with a
denomination equal to [___]% of the Class [__] Certificate Principal Balance.
"Termination Price" means the sum of (i) any Liquidation Expenses incurred
by the Servicer in respect of any Contract that has not yet been liquidated,
(ii) all amounts required to be reimbursed or paid to the Servicer in respect of
previously unreimbursed Advances and (iii) the greater of (a) the sum of (1) the
aggregate Contract Principal Balance, plus accrued and unpaid interest thereon
at the related APRs through the end of the Due Period immedi- ately preceding
the Due Period in which the terminating purchase will occur, plus (2) the lesser
of (A) the aggregate Contract Principal Balance of each Contract that had been
secured by any REO Property remaining in the Trust Fund, plus accrued interest
thereon at the related APR through the end of the Due Period immediately
preceding the Due Period in which the terminating purchase will occur, and (B)
the current appraised value of any such REO Property (net of Liquidation
Expenses to be incurred in connection with the disposition of such property
estimated in good faith by the Servicer), such appraisal to be conducted by an
appraiser mutually agreed upon by the Servicer and the Trustee, plus all
previously unreimbursed Advances made in respect of such REO Property, and (b)
the aggregate fair market value of the Trust Fund (as determined by the
Servicer, as 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 11.01) plus all previously unreimbursed
Advances. The fair market value of the assets of the Trust Fund as determined
for purposes of a terminating purchase will be deemed to include accrued
interest at the applicable APR on the Contract Principal Balance (including any
Contract that had been secured by a REO Property, which REO Property has not yet
been disposed of by the Servicer) through the end of the Due Period immediately
preceding the Due Period in which the terminating purchase will occur. The basis
for any such valuation shall be furnished by the Servicer to the
Certificateholders upon request.
"Thirty-Day Delinquency Ratio" means, with respect to any Distribution
Date, a fraction, expressed as a percentage, the numerator of which is the
aggregate Contract Principal Balance of all Contracts that were delinquent 30 or
more days as of the end of the preceding calendar month (including Contracts in
respect of which the related Manufactured Homes have been repossessed but are
still in inventory), and the denominator of which is the Pool Balance for such
Distribution Date; provided that no Monthly Payment shall be considered
delinquent if 90% of the amount thereof is received on or prior to its scheduled
Due Date; provided further that if the amount remaining outstanding with respect
to any Monthly Payment referred to in the preceding provisio is not received in
full on or before the next Due Date, such Contract will be deemed delinquent as
of such next Due Date.
"Transfer" means any direct or indirect transfer or sale of any Ownership
Interest in a Class [__] Certificate.
"Transfer Affidavit" means an affidavit of the Transferee of a Class [__]
Certificate, substantially in the form of Exhibit K.
"Transferee" means any Person who is acquiring by Transfer any Ownership
Interest in a Class [__] Certificate.
"Trust Fund" means the corpus of the trust created by this Agreement, to
the extent described herein, consisting of the Contracts (including, without
limitation, the security interest created thereby), including all rights to
receive payments on the Contracts due after the Cut-off Date (whether received
before, on or after the Cut-off Date), such assets as shall from time to time be
identified as deposited in the Collection Account and the Certificate Account, a
Manufactured Home and any related Mortgaged Property which secured a Contract
(other than a Repurchased Contract) and which have been acquired in realizing
upon such Contract, the Mortgages, the obligation of the Seller to repurchase
Repurchased Contracts pursuant to Section 3.05, the proceeds of the Hazard
Insurance Policies and all rights of the Depositor under the Sale and Purchase
Agreement.
"Trustee" means [_____], or its successors or assigns under this Agreement.
"Trustee's Fees" means the fees, other than the Monthly Trustee Fee,
expenses and disbursements of the Trustee set forth in Section 10.05.
"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction.
"Underwriter" means [_____________].
"United States" means the United States of America.
"Unpaid Certificate Principal Shortfall" means, with respect to a
Distribution Date, the Class A Unpaid Certificate Principal Shortfall in the
case of the Class A Certificates, the Class [__] Unpaid Certificate Principal
Shortfall in the case of the Class [__] Certificates, the Class [__] Unpaid
Certificate Principal Shortfall in the case of the Class [__] Certificates and
the Class [__] Unpaid Certificate Principal Shortfall in the case of the Class
[__] Certificates.
"Unpaid Liquidation Loss Interest Shortfall" means, with respect to a
Distribution Date, the Class [__] Unpaid Liquidation Loss Interest Shortfall
with respect to the Class [__] Certificates, the Class [__] Unpaid Liquidation
Loss Interest Shortfall with respect to the Class [__] Certificates and the
Class [__] Unpaid Liquidation Loss Interest Shortfall with respect to the Class
[__] Certificates.
"Value" means, in respect of any Contract, sum of the down payment (which
includes the value of any trade-in unit) for such Contract, the original amount
financed on such Contract, which may include sales and other taxes, insurance
and prepaid finance charges and, in the case of a Land Home Contract, the value
of the land securing such Contract as appraised by an independent appraiser.
"Vice President" of any Person means any vice president of such Person,
whether or not designated by a number or words before or after the title "Vice
President", who is a duly elected officer of such Person.
"Weighted Average Net Contract Rate" means, with respect to any
Distribution Date, the per annum rate equal to (i) the weighted average of the
APRs borne by the Contracts and applicable to Monthly Payments due in the
related Due Period less (ii) the per annum rate used to calculate the Monthly
Servicing Fee.
ARTICLE TWO
CONVEYANCE OF CONTRACTS; CUSTODY OF CONTRACTS
Section 2.01. Conveyance of Contracts and Other Rights.
The Depositor, concurrently with the execution and delivery hereof, does
hereby transfer, sell, assign, set over and otherwise convey to the Trustee
without recourse (i) all of its right, title and interest in, to and under the
Contracts (including, without limitation, the security interests created
thereby) and any related Mortgages, including all interest and principal with
respect to the Contracts [due] [received] after the Cut-off Date [(whether
[received] [due] before, on or after the Cut-off Date)], (ii) all of the rights
under any Hazard Insurance Policy relating to a Manufactured Home securing a
Contract for the benefit of the creditor of such Contract, (iii) all documents
contained in the Contract Files, (iv) all other of its rights relating to and
payments made with respect to other assets comprising the Trust Fund and (v) all
proceeds of the foregoing.
[In the case of any Land Home Contract, not later than [__] days following
receipt by the Servicer of the original Mortgage with evidence of recording by
the appropriate public recording office indicated thereon, the Servicer shall
(i) affix the Trustee's name to each assignment of Mortgage, as the assignee
thereof, (ii) cause such assignment to be in proper form for recording in the
appropriate public office for real property records and (iii) deliver or cause
to be delivered for recording in the appropriate public office for real property
records the assignments of the Mortgages to the Trustee, except that, with
respect to any assignment of a Mortgage as to which the Servicer has not
received the information required to prepare such assignment in recordable form,
the Servicer's obligation to do so and to deliver the same for such recording
shall be as soon as practicable after receipt of such information and in any
event within [___] days after the receipt thereof, and the Servicer need not
cause to be recorded any assignment which relates to a Land Home Contract
[(a) the Mortgaged Property and Contract File relating to which are located in
[_________] or (b) in any other jurisdiction under the laws of which[, as
evidenced by an Opinion of Counsel delivered by the Seller (at the Seller's
expense) to the Trustee,] the recordation of such assignment is not necessary to
protect the Trustee's and the Certificateholders' interest in the related Land
Home Contract].]
The ownership of each Contract and the contents of the related Contract
File and Servicing File are vested in the Trustee. The contents of each
Servicing File are and shall be held in trust by the Servicer for the benefit of
the Trustee as the owner thereof and the Servicer's possession of the contents
of each Servicing File so retained is for the sole purpose of servicing the
related Contract, and such retention and possession by the Servicer is in a
custodial capacity only. Neither the Depositor nor the Servicer claim any
ownership interest in the Contracts; provided that the Servicer shall retain the
customer list and have the right to solicit obligors for products it customarily
makes available to obligors in general.
It is the intention of the parties hereto that the conveyance of the
Depositor's right, title and interest in and to the Trust Fund pursuant to this
Agreement shall constitute a purchase and sale and not a loan. If the conveyance
of the Contracts from the Seller to the Depositor to the Trustee is
characterized as a pledge and not a sale, then the Depositor shall be deemed to
have transferred to the Trustee, in addition to the Trust Fund, all of the
Depositor's right, title and interest in, to and under the obligation or
obligation deemed to be secured by said pledge; and it is the intention of the
parties hereto that the Seller and the Depositor shall also be deemed to have
granted to the Trustee a first priority security interest in all of the Seller's
and the Depositor's right, title and interest in, to and under the obligation or
obligation deemed to be secured by said pledge and that the Trustee shall be
deemed to be an independent custodian for purposes of perfection of such
security interest.
If the conveyance of the Contracts from the Depositor to the Trustee is
characterized as a pledge, it is the intention of the parties hereto that this
Agreement shall constitute a security agreement under applicable law, and that
each of the Seller and the Depositor shall be deemed to have granted to the
Trustee a first priority security interest in all of its right, title and
interest in, to and under the Contracts, all payments of interest and principal
due on or in respect of the Contracts after the Cut-off Date (whether received
before, on or after the Cut-off Date), all other rights relating to and payments
made in respect of the Trust Fund, and all proceeds thereof. If the trust
created by this Agreement terminates prior to the satisfaction of the claims of
any Person as a Holder or Certificate Owner of any Certificates, the security
interest created hereby shall continue in full force and effect and the Trustee
shall be deemed to be the collateral agent for the benefit of such Person.
Section 2.02. Filing; Name Change or Relocation.
(a)(i) On or prior to the Closing Date, the Seller shall cause to be filed,
in the office of the Secretary of State of the State of [________], UCC-1
financing statements describing the Contracts and other items of the Trust Fund
as collateral and naming the Seller as debtor and the Depositor as secured
party. On or prior to the Closing Date, the Depositor shall cause to be filed,
in the office of the Secretary of State of the State of [______], a UCC-1
financing statement describing the Contracts and other items of the Trust Fund
as collateral and naming the Depositor as debtor and the Trustee as secured
party. The Servicer shall also cause to be filed all necessary continuation
statements for each of the foregoing UCC-1 financing statements.
(ii) Subject to the following sentence, from time to time the Servicer
shall take and cause to be taken such actions and execute such documents as are
necessary to perfect and protect the Certificateholders' interests in the
Contracts and other items of the Trust Fund and their proceeds and the
Manufactured Homes and any related Mortgaged Property against all other Persons,
including, without limitation, the filing of financing statements and
continuation statements, the execution of transfer instruments and the making of
notations on or taking possession of all records or documents of title.
[IndyMac, Inc.], so long as it is the Servicer, shall not be required to cause
notations to be made on any document of title relating to any Manufactured Home
or to execute any transfer instrument (including, without limitation, any UCC-3
assignments) relating to any Manufactured Home (other than a notation or a
transfer instrument necessary to show the Seller as the lienholder or legal
title holder) or, except as provided in Section 2.01 with respect to Land Home
Contracts, to file documents in real property records with respect to a
Manufactured Home or related Contract or any related Mortgaged Property, absent
notice from the Trustee or the Depositor or actual knowledge that such
Manufactured Home (other than a Manufactured Home securing a Land Home Contract)
has become real property under applicable state law; provided that this sentence
shall not have any effect on the representation and warranty in Section 3.02(j)
and the Seller's obligations in respect thereof in Section 3.05; provided
further that the Servicer shall not be required to protect the Trustee from any
Liens on the Contracts, their proceeds or the Manufactured Homes created by the
Depositor or conveyances of the Contracts or their proceeds by the Depositor.
Nothing in the preceding sentence shall be construed to limit the
indemnification obligations of the Servicer set forth in Section 10.05. The
Seller and the Depositor agree to take whatever action is necessary to enable
the Servicer to file financing statements and continuation statements and
otherwise act to perfect and protect the Certificateholders' interests in the
Contracts, the Manufactured Homes and any related Mortgaged Property as set
forth in this Agreement. Assuming that the Depositor and the Trustee perform
such actions as are required at the direction of the Servicer, the Servicer will
maintain a first priority security interest in each Manufactured Home and any
related Mortgaged Property so long as the related Contract is the property of
the Trust; provided that the Seller, so long as it is the Servicer, shall not be
required to cause notations to be made on any document of title relating to any
Manufactured Home, to execute any transfer instrument (including, without
limitation, any UCC-3 assignments) relating to any Manufactured Home (other than
a notation or a transfer instrument necessary to show the Seller as lienholder
or legal title holder) or to file documents in real property records with
respect to a Manufactured Home or related Contract or any related Mortgaged
Property, absent notice from the Trustee, or the Depositor or actual knowledge
that such Manufactured Home (other than a Manufactured Home securing a Land Home
Contract) has become real property under applicable state law or to protect the
Trustee from any Liens created by the Depositor on any Manufactured Home.
(b) During the term of this Agreement, neither the Seller nor the Depositor
shall change its name, identity or structure or relocate its chief executive
office without first giving notice to the Trustee. If any change in the Seller's
or the Depositor's name, identity or structure or the relocation of its chief
executive office 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, the Seller or the
Depositor, as the case may be, no later than five days after the effective date
of such change, shall file such amendments as may be required to preserve and
protect the Certificateholders' interests in the Contracts and proceeds thereof
and in the Manufactured Homes.
(c) The Seller hereby represents and warrants that its current chief
executive offices are located in the State of [________]. The Depositor hereby
represents and warrants that its chief executive offices are in the State of
[________]. During the term of this Agreement, the Seller and the Depositor will
each maintain its respective chief executive office in one of the States of the
United States, [except __________].
(d) The Servicer agrees to pay all reasonable costs and disbursements in
connection with the perfection and the maintenance of perfection, as against all
third parties, of the Certificateholders' right, title and interest in, to and
under the Contracts (including, without limitation, the security interest in the
Manufactured Homes granted thereby) and any related Mortgages.
Section 2.03. Acceptance by Trustee. The Trustee hereby acknowledges
conveyance of the Contracts and any related Mortgages to the Trustee and
declares that the Trustee, directly or through a custodian, holds and will hold
such Contract Files in trust for the use and benefit of all present and future
Certificateholders. The Trustee hereby certifies that it has no notice or
knowledge of (i) any adverse Lien with respect to any Contract, (ii) any
Contract being overdue or dishonored, (iii) any evidence on the face of any
Contract of any security interest therein adverse to the Trustee's interest or
(iv) any defense against or claim against any Contract by the Obligor or by any
other party.
Section 2.04. Conditions to Closing. On the Closing Date, the Trustee shall
authenticate and deliver the Certificates only upon receipt of letters from
[_______] and [______] confirming that (i) the Class [__________] and [________]
Certificates have been rated [__] and [__], respectively, (ii) the Class [__]
Certificates have been rated at least [__] and [___], respectively, and (iii)
the Class [__] Certificates have been rated at least [__] and [__],
respectively.
Section 2.05. Contribution of Assets. Except as provided in Section 3.05(a)
as relates to a deposit in lieu of repurchase of a Contract the principal
balance of which is incorrectly set forth on the Contract Schedule, following
the Closing Date, the Trustee shall not accept any contribution of additional
assets to the Trust Fund unless the Depositor has delivered to the Trustee an
Opinion of Counsel to the effect that (i) the contribution of such assets into
the Trust Fund will not cause the Trust Fund to fail to qualify as a two-tiered
REMIC so long as any Certificate is outstanding and (ii) such contribution will
not cause the imposition of Tax on contributions to the Trust Fund after the
"start-up day" (as defined in Section 860G(a)(9) of the Code) with respect
thereto.
Section 2.06. Execution and Authentication of Certificates. The Trustee, on
behalf of the Trust Fund, has caused to be executed, authenticated and delivered
to or upon the order of the Depositor, in exchange for the Trust Fund,
concurrently with the transfer, sale, assignment, setting over and conveyance to
the Trustee of the Trust Fund, Certificates in authorized denominations
evidencing the ownership of the entire Trust Fund.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties as to the Seller. The Seller
makes the following representations and warranties to the other parties hereto
and the Certificateholders. Such representations and warranties shall speak as
of the execution and delivery of this Agreement, but shall survive the sale,
transfer and assignment of the Contracts to the Trustee.
(a) Organization and Good Standing; Licensing. The Seller is a
corporation duly organized, validly existing and in good standing under the
laws of the State of its incorporation and has the corporate power to own
its assets and to transact the business in which it is currently engaged.
The Seller is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction in which the character of the
business transacted by it or properties owned or leased by it requires such
quali- fication and in which the failure so to qualify would have a
material adverse effect on the condition, financial or other, or the
earnings or business affairs of the Seller. The Seller was properly
licensed in each jurisdiction at the time of its purchase of each Contract
in such jurisdiction to the extent required by the laws of such
jurisdiction as applied to the purchase of such Contract and the failure to
be so licensed would have a material adverse effect on the enforceability
of the related Contracts.
(b) Authorization; Binding Obligations. The Seller has the power and
authority to make, execute and deliver this Agreement and perform all of
the trans- actions contemplated to be performed by it 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
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and by the availability of
equitable remedies.
(c) No Consent Required. The 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, except such as
have been obtained or the failure to obtain will not have a material
adverse effect on the business operations, assets or financial condition of
the Seller.
(d) 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 applicable to the Seller
or the charter 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, except for such violations or
breaches that, in the aggregate, will not have a material adverse effect on
the business, operations, assets or financial condition of the Seller.
(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 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.
Section 3.02. Representations and Warranties as to Each Contract. The
Contracts have been sold by the Seller to the Depositor pursuant to the Sale and
Purchase Agreement. In connection with such sale, the Seller made the
representations and warranties contained in Sections 3.02 and 3.03 to the
Depositor. As a condition of the purchase by the Depositor, the Depositor has
required that the Seller make such representations and warranties directly to
the Trustee and the Certificateholders so that the Trustee may recover directly
against the Seller on such representations and warranties rather than indirectly
through claims by the Depositor against the Seller. Consequently, the Seller
represents and warrants to the other parties hereto and the Certificateholders
as to each Contract as of the Cut-off Date or the Closing Date, as the case may
be. Such representations and warranties shall speak as of the execution and
delivery of this Agreement (and as to the best knowledge as of such date), but
shall survive the sale, transfer and assignment of the Contracts to the Trustee.
(a) Contract Schedule. As of the Cut-off Date, the information set
forth in the Contract Schedule is true and correct in all material respects
with respect to each Contract.
(b) Payments. As of the Cut-off Date, no Monthly Payment is more than
[__] days past due, and no portion of the Monthly Payment due in the second
month next preceding the month in which the Cut-off Date occurs was made
directly or indirectly by the Seller on behalf of the Obligor.
(c) No Waivers. The terms of the Contract and any related Mortgage
have not been waived, altered or modified in any respect, except by
instruments or documents included in the Contract File.
(d) Binding Obligation. The Contract and any related Mortgage 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
and by general principles of equity.
(e) Insurance. The Manufactured Home securing the Contract is covered
by a Hazard Insurance Policy in the amount required by Section 5.08, except
to the extent that such an insurance policy has been cancelled and the
Seller has not yet received notification thereof. All premiums due as of
the Closing Date on such insurance have been paid in full or, with respect
to insurance placed by the Servicer, will have been paid in full within
[__] days after the Closing Date.
(f) Origination. The Contract was either (i) originated by a
manufactured housing dealer acting, to the best of the Seller's knowledge,
in the regular course of its business and was purchased by the Seller in
the regular course of its business, (ii) originated by the Seller in the
regular course of its business or (iii) originated by a third-party
originator and purchased in bulk by the Seller.
(g) Lawful Assignment. The Contract and any related Mortgage was not
originated in and is not subject to the laws of any jurisdiction whose laws
would make the transfer of the Contract from the Seller to the Depositor or
the transfer or ownership of the Contract under this Agreement or pursuant
to transfers of Certificates unlawful, void or voidable or render the
Contract unenforceable in any respect.
(h) Compliance with Law. All requirements of any federal, state or
local law, including, without limitation, usury, truth-in-lending and equal
credit opportunity laws and lender licensing laws, applicable to the
Contract and any related Mortgage or the servicing of any Contract have
been complied with to the extent any of the foregoing would have a material
adverse effect on the enforceability of the related Contract.
(i) Contract in Force. The Contract and any related Mortgage 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 and any related Mortgage in whole or in part.
(j) Valid Security Interest. The Contract, together with any related
Mortgage, creates a valid, subsisting and enforceable first priority
security interest in favor of the Seller in the Manufactured Home covered
thereby and, in the case of a Land Home Contract, a first mortgage lien on
the related Mortgaged Property, subject to (i) the lien of current real
property taxes and assessments, (ii) 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 Home Contract obtained by the Seller and
(iii) 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; such security interest or Mortgage has been
assigned by the Seller to the Depositor and, assuming the due
authorization, execution and delivery by the Depositor of this Agreement,
the Sale and Purchase Agreement and such other instruments relating to the
transfer of the Contract to the Trustee as the Seller has presented to the
Depositor for execution and delivery, by the Depositor to the Trustee, and,
assuming the Depositor has neither conveyed an interest in the Contract or
related Mortgaged Property except pursuant to this Agreement nor created
any Lien on the Contract, their proceeds or any Manufactured Home or
related Mortgaged Property except as contemplated by this Agreement, the
Trustee has a valid and perfected first priority security interest in such
Manufactured Home and, in the case of a Land Home Contract, a first
mortgage lien on the related Mortgaged Property.
(k) Good Title. The Seller purchased the Contract and any related
Mortgage for value and took possession thereof in the ordinary course of
its business, without knowledge that the Contract was subject to any
security interest. Immediately prior to the transfer of the Contract and
any related Mortgage by the Seller to the Depositor, the Seller had good
and marketable title thereto free and clear of any Lien (other than any
Liens created by any financing arrangements in respect of the Contracts,
which Liens will be released concurrently with the issuance of the
Certificates) and was the sole owner thereof with full right to transfer
the Contract and any related Mortgage to the Depositor. Except as otherwise
provided in the parenthetical in the preceding sentence, the Seller has not
sold, assigned or pledged the Contract or any related Mortgage to any
Person other than the Depositor and prior to the transfer of the Contract
and any related Mortgage by the Seller to the Depositor and by the
Depositor to the Trust, the Seller had good and marketable title thereto
free and clear of any Lien, was the sole owner thereof with full right to
transfer the Contact to the Depositor and has transferred all right, title
and interest in, to and under the Contract to the Depositor, free and clear
of any Lien.
(l) No Defaults. To the best of the Seller's knowledge, as of the
Cut-off Date there was no default, breach, violation or event permitting
acceleration existing under the Contract and any related Mortgage 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 (b) above). The Seller has not waived any such default, breach,
violation or event permitting acceleration, except by instruments or
documents included in the Contract File.
(m) No Liens. As of the Closing Date, there are, to the best of the
Seller's knowledge, no Liens which have been filed for work, labor or
materials affecting the Manufactured Home securing the Contract which are
or may be liens prior to, or equal or coordinate with, the lien of the
Contract.
(n) Equal Installments. Each Contract has a fixed APR and provides for
level monthly payments of principal and interest (except that the payment
at maturity may be slightly larger) which fully amortize the loan over its
term. Each Contract is computed according to the "actuarial" method.
(o) Enforceability. The Contract and any related Mortgage contains
customary and enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the realization against the
collateral of the benefits of the security.
(p) One Original. There is only one original executed Contract, which
is in the custody of the Trustee on the Closing Date.
(q) Loan-to-Value Ratio. At the time of its origination, the Contract
had a Loan-to-Value Ratio (rounded to the nearest [_]%) not greater than
[__]%.
(r) Not Real Estate. The related Manufactured Home (other than a Manu-
factured Home that secures a Land Home Contract) is personal property, was
personal property at the time of the execution and delivery of the related
Contract by the parties thereto, and is not and was not, at such time,
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. The related
Manufactured Home is, to the best of the Seller's knowledge, free of damage
and in good repair.
(s) Notation of Security Interest. 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 show, the Seller 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 or the making of a
fixture filing 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 as secured party. If the related Manufactured Home secures
a Land Home Contract and is located in a state that does not permit
separate evidence of Liens on the Manufac- tured Home and the property on
which it is located, such Manufactured Home and, in the case of all Land
Home Contracts and any Contracts on Mortgaged Property located in
[_________], the related land securing such Land Home Contract or the
Manufac- tured Home, as the case may be, are subject to a Mortgage properly
filed in the appropriate public recording office and naming [IndyMac, Inc.]
as mortgagee. In either case, assuming the due authorization, execution and
delivery by the Depositor of this Agreement, the Sale and Purchase
Agreement and such other instruments relating to the transfer of the
Contracts to the Trustee as the Seller has presented to the Depositor for
execution and delivery, the Trustee has the same rights as the secured
party of record would have (if such secured party were still the owner of
the Contract) against all Persons claiming an interest in such Manufactured
Home.
(t) Qualified Mortgage for REMIC. Each Contract is secured by a
"single family residence" within the meaning of Section 25(e)(10) of the
Code.
Section 3.03. Representations and Warranties as to the Contracts. The
Seller represents and warrants to the other parties hereto and the
Certificateholders as follows. Such representations and warranties shall speak
as of the execution and delivery of this Agreement, but shall survive the sale,
transfer and assignment of the Contracts to the Trustee.
(a) Amounts. The aggregate principal amounts payable by Obligors under
the Contracts as of the Cut-off Date (including Monthly Payments due on or
after the Cut-off Date but paid prior to the Cut-off Date) equals or
exceeds the Cut-off Date Pool Balance, and each Contract has an APR equal
to or greater than [____]%.
(b) Characteristics. The Contracts have the following characteristics
as of the Cut-off Date: (i) based on Cut-off Date Pool Balance, not more
than (A) [__]% of the Contracts are secured by Manufactured Homes located
in any one state and (B) [___]% of the Contracts are Land Home Contracts;
(ii) no Contract has a remaining term to maturity of less than [__] months
or more than [___] months; (iii) the final scheduled payment date on the
Contract with the latest maturity is in [________]; (iv) based on Cut-off
Date Pool Balance, [____]% of the Contracts relate to purchases of new
Manufactured Homes and [____]% of the Contracts relate to the financing of
used Manufactured Homes; and (v) no Contract was originated before
[_________, 199_].
(c) Computer Tape. The Computer Tape made available to the Servicer as
of the close of business on [_________, 199_] was accurate as of its date
and includes a description of the same Contracts that are described in the
Contract Schedule.
(d) Marking Records. Within one month after the Closing Date, the
Seller will have caused the portions of the Electronic Ledger relating to
the Contracts constituting part of the Trust Fund to be clearly and
unambiguously marked to indicate that such Contracts constitute part of the
Trust Fund and are owned by the Trust Fund in accordance with the terms of
the trust created hereunder.
(e) No Adverse Selection. Except for the effect of the representations
and warranties made in Sections 3.02 and 3.03 and the effect of the
geographical distribution of the Manufactured Homes, no adverse selection
procedures have been employed in selecting the Contracts.
Section 3.04. Representations and Warranties as to the Contract Files. The
Seller represents and warrants to the other parties hereto and the
Certificateholders as follows. Such representations and warranties shall speak
as of the execution and delivery of this Agreement, but shall survive the sale,
transfer and assignment of the Contracts to the Trustee.
(a) Possession. Immediately prior to the Closing Date, the Servicer
will have possession of each original Contract and the Servicer will have
possession of the remainder of the related Contract File (except for any
certificate of title that has not yet been returned from the appropriate
public recording office).
(b) Bulk Transfer Laws. The transfer, assignment and conveyance of the
Contracts and the Contract Files by the Seller pursuant to this Agreement
are not subject to the bulk transfer or any similar statutory provisions in
effect in any applicable jurisdiction.
Section 3.05. Repurchase of Contracts for Breach.
(a) The Seller shall repurchase a Contract (each, a "Repurchased
Contract"), at its Repurchase Price, not later than [__] Business Day[s] after
the first Determination Date which is more than [__] days after the Seller
becomes aware, or receives written notice from the Servicer or the Trustee, of a
breach of a representation or warranty of the Seller set forth in Section 3.02
or 3.03 that materially adversely affects the Certificateholders' interest in
such Contract, unless such breach has been cured. Notwithstanding the foregoing,
with respect to (i) any Contract incorrectly described on the Contract Schedule
with respect to Contract Principal Balance, the Seller may, in lieu of
repurchasing such Contract, deposit in the Collection Account not later than
[__] Business Day[s] after such Determination Date cash in an amount sufficient
to cure such deficiency or discrepancy and (ii) a breach of a representation or
warranty relating to the Contracts in the aggregate and not to each particular
Contract, the Seller may select Contracts to repurchase that, had such Contracts
not been included as part of the Contract Pool, there would have been no breach
of such representation or warranty. Notwithstanding the foregoing, the Seller
shall have no obligation to cure any breach or to repurchase or substitute for
such affected Contract if the substance of such breach constitutes fraud in the
origination of such affected Contract and the Seller, at the time of such
origination and on the Closing Date, did not have actual knowledge of such
fraud.
It is understood and agreed that the obligation of the Seller to repurchase
any Contract as to which certain breaches of representations or warranties have
occurred and are continuing (as provided in the first paragraph of this Section
3.05(a)) shall constitute the sole remedy available to the Certificateholders,
the Depositor or the Trustee with respect to any breach of a representation or
warranty set forth in Section 3.02 or 3.03 [; provided that the Seller shall
defend and indemnify the Trustee, the Trust Fund and Certificateholders against
all costs, expenses, losses, damages, claims and liabilities, including
reasonable fees and expenses of counsel, which may be asserted against or
suffered by any of them as a result of third-party claims arising out of any
breach of a representation or warranty set forth in Section 3.02.] Nothing in
the preceding sentence shall be construed to limit the indemnification
obligations of the Servicer set forth in Section 10.05. Notwithstanding any
other provision of this Agreement, the obligation of the Seller under this
Section shall not terminate upon an Event of Default.
[Notwithstanding the foregoing provisions of this Section, the Seller shall
not be required to repurchase any Contract on account of a breach of the
representation or warranty contained in Section 3.02(j) or (s) solely on the
basis of failure by the Seller to cause notations to be made on any document of
title relating to any Manufactured Home or to execute any transfer instrument
relating to any Manufactured Home (other than a notation or a transfer
instrument necessary to show the Seller as lienholder or legal title holder) or
to record an assignment of a Mortgage unless a court of competent jurisdiction
has adjudged that, because of such failure, the Trustee does not have a
perfected first-priority security interest in the related Manufactured Home.]
Notwithstanding the foregoing, the Seller shall not deposit cash into the
Collection Account or the Certificate Account pursuant to this Section after the
end of the [___] month period beginning on the Closing Date unless it shall
first have obtained an Opinion of Counsel to the effect that such deposit will
not give rise to any Tax under Section 860F(a)(1) of the Code or Section 860G(d)
of the Code. Any such deposit shall not be invested. If the Seller is required
to purchase a Contract (or deposit cash in the Collection Account or the
Certificate Account), the Seller shall guarantee the payment of any Tax under
Section 860F(a)(1) of the Code or under Section 860G(d) of the Code 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 10.12 are insufficient to pay
such Tax and all other Taxes chargeable under Section 10.12. The Trustee shall
hold any amount paid to it pursuant to the preceding sentence in an account that
is not part of the Trust Fund. The Servicer shall give notice to the Trustee at
the time of such repurchase of the amounts due from the Seller pursuant to such
guarantee of Taxes of the Seller and notice as to who should receive such
payment.
In the event any Tax that is guaranteed by the Seller is refunded to the
Trust Fund or otherwise is determined not to be payable, the Seller shall be
repaid the amount of such refund or that portion of any guarantee payment made
by the Seller that is not applied to the payment of such Tax.
(b) Promptly after the repurchase referred to in Section 3.05(a), the
Trustee shall execute such documents as are presented to it by the Seller and
are reasonably necessary to reconvey the Repurchased Contract to the Seller. Any
amount received on or recovered with respect to Repurchased Contracts during or
after the month of repurchase shall be the property of the Seller and need not
be deposited in the Collection Account or the Certificate Account.
Section 3.06. Representation and Warranty as to the Depositor. The
Depositor represents and warrants to the other parties hereto and the
Certificateholders that, immediately prior to the transfer, sale, assignment and
conveyance of the Contracts to the Trustee and assuming that the representation
and warranty in Section 3.02(m) is correct, the Depositor had good title to, and
was the sole owner of, each Contract and any related Mortgage free of any Liens
created by the Depositor, there had been no other sale or assignment thereof by
the Depositor and the Depositor has transferred to the Trustee a security
interest (as defined in the UCC in effect in the State of New York) in the
Contracts and any related Mortgages, which security interest is a perfected,
first priority security interest.
ARTICLE FOUR
THE CERTIFICATES
Section 4.01. The Certificates. Each Class of Certificates shall be
substantially in the related forms annexed hereto as Exhibits, with such
immaterial changes as the Depositor deems appropriate, and (other than the
Class [______] Certificates) shall be issued in minimum denominations of
$[_________] and integral multiples of $[_____] in excess thereof. The Class
[___] Certificates shall be issued as fully registered physical certificates
including one certificate representing the Tax Matters Person Certificate. The
Class [__] Certificates will not have any principal balance.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trust Fund by a Responsible Officer of the Trustee. The
Certificates shall be authenticated by manual signature on behalf of the Trustee
by a Responsible Officer or an Authenticating Agent. Certificates bearing the
manual or facsimile signatures of individuals who were at any time the proper
officers of the Trustee shall bind the Trust Fund, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificate or did not hold such offices at
the date of such Certificates. No Certificate shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless there appears on such
Certificate a manual authentication by the Trustee or its Authenticating Agent
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.
Section 4.02. Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall cause to be kept at its Corporate Trust Office or, at
the election of the Trustee, at the office of its designated agent in New York
City, a Certificate Register in which, subject to such reasonable regulations as
it may prescribe, the Trustee shall provide for the registration of Certificates
and of transfer and exchanges of Certificates as herein provided. The Trustee
initially appoints itself as the Certificate Registrar.
(b) Subject to Sections 4.02(c) and 11.01(b), upon surrender for
registration of transfer of any Certificate at any office or agency of the
Trustee maintained for such purpose, the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, a Certificate of a like
aggregate Percentage Interest and dated the date of authentication by the
Trustee. The Holder and beneficial owner of any Subordinate Certificate will be
deemed to represent that it is not a Benefit Plan or a trustee of any such
Benefit Plan or a person acting on behalf of any such plan or acquiring a
Subordinate Certifi- cate with the assets of any such Benefit Plan unless it
delivers to the Trustee, the Depositor and the Servicer (i) an Opinion of
Counsel satisfactory to the Trustee, the Depositor and the Servicer, to the
effect that the purchase or holding of such Subordinate Certificate by the
prospective transferee will not result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA and the Code and will not subject the Trustee, the Depositor or the
Servicer to any obligation in addition to those undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the Trustee, the Depositor
or the Servicer, and (ii) if the purchaser is an insurance company, a
representation that the purchaser is an insurance company which is purchasing
such Subordinate Certificates with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of PTCE 95-60) and
that the purchase and holding of such Subordinate Certificates are covered under
PTCE 95-60.
(c) No transfer of a Class [__] or Class [__] Certificate shall be made
unless such transfer is made pursuant to an effective registration statement or
in accordance with an exemption from the requirements under the Securities Act
or any applicable state securities laws. If such a transfer is to be made in
reliance upon an exemption from the Securities Act and such state securities
laws, prior to the registration of any such transfer (i) the Trustee, the
Depositor or the Servicer may (except in the case of a transfer to the Servicer
or any Affiliate thereof) require (A) an Opinion of Counsel as to the Securities
Act and a memorandum of law as to state securities laws, in each case acceptable
to and in form and substance satisfactory to the Trustee, the Depositor and the
Servicer that such transfer may be made pursuant to an exemption, describing the
applicable exemption and the basis therefor, from the Securities Act and such
state securities laws or is being made pursuant to the Securities Act and such
state securities laws, which Opinion of Counsel and memorandum of law shall not
be an expense of the Trustee, the Depositor or the Servicer, or (B) an
Investment Letter substantially in the form of Exhibit L.
No transfer of a Class [__] Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the proposed
Transferee to the effect that such transferee is not a Benefit Plan or a trustee
of any such Benefit Plan or a person acting on behalf of any such Benefit Plan
or acquiring such Certificate with the assets of any such Benefit Plan or (ii)
an Opinion of Counsel satisfactory to the Trustee, the Depositor and the
Servicer, to the effect of the Opinion of Counsel required by Section
4.02(b)(i), which Opinion of Counsel shall not be an expense of the Trustee, the
Depositor or the Servicer, and (ii) the Trustee shall require the Transferee to
execute a Transfer Affidavit.
(d) At the option of the Certificateholder, a Certificate may be exchanged
for another Certificate or Certificates of the same Class and of authorized
denominations of the same aggregate denomination, upon surrender of the
Certificate to be exchanged at any office or agency of the Trustee maintained
for such purpose. Whenever the Certificate is so surrendered for exchange, the
Trustee shall execute and the Trustee or its Authenticating Agent shall
authenticate and deliver, the Certificate or Certificates which the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for transfer or exchange (if so required by the
Trustee) shall be duly endorsed by, or be accompanied by a written instrument of
transfer in the form satisfactory to the Trustee or the Certificate Registrar
duly executed by, the Holder thereof or his attorney duly authorized in writing.
(e) No service charge shall be made to the Holder for any transfer or
exchange of the Certificate, but the Trustee 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 the Certificate.
(f) All Certificates surrendered for transfer and exchange shall be held in
accordance with the retention policy of the Trustee.
Section 4.03. Book-Entry Certificates.
(a) Except as provided in Section 4.03(b), the Certificates of each Class
(other than the Class [__], Class [__] and Class [__] Certificates) will be
evidenced by Book-Entry Certificates which shall at all times remain registered
in the name of the Depository or its nominee and at all times: (i) registration
of the Class A (other than the Class [__] Certificates), Class [__] and Class
[__] Certificates may not be transferred by the Trustee except to another
Depository; (ii) the Depository shall maintain book-entry records with respect
to the Certificate Owners and with respect to ownership and transfers of such
Class A (other than the Class [__] Certificates), Class [__] and Class [__]
Certificates; (iii) ownership and transfers of registration of the Class A
(other than the Class [__] Certificates), Class [__] and Class [__] 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
Class A (other than the Class [__] Certificates), Class [__] and Class [__]
Certificates for purposes of exercising the rights of Holders under this
Agreement, and requests and directions for and votes of such representatives
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.
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 Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
(b) If (i) the Depositor or the Depository advises the Trustee in writing
that the Depository is no longer willing, qualified or able to properly
discharge its responsibilities as Depository and the Depositor is unable to
locate a qualified successor, (ii) the Depositor at its option may advise the
Trustee in writing that it elects to terminate the book-entry system through the
Depository or (iii) after the occurrence of an Event of Default, Certificate
Owners representing Percentage Interests aggregating not less than [__]% of the
Percentage Interests of the Class A, Class [__] and Class [__] Certificates,
voting as a single Class, advise the Trustee and the Depository through the
Depository Participants in writing that the continuation of a book-entry system
through the Depository is no longer in the best interests of the Certificate
Owners, the Trustee shall notify all Certificate Owners, through the Depository,
of the occurrence of any such event and of the availability of definitive, fully
registered Class A, Class [__] and Class [__] Certificates (the "Definitive
Certificates") to Certificate Owners requesting the same. Upon surrender to the
Trustee of the Class A, Class [__] and Class [__] Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration, the Trustee shall issue 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, all references
herein to obligations imposed upon or to be performed by the Depository shall be
deemed to be imposed upon and performed by the Trustee, to the extent applicable
with respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder.
(c) On or prior to the Closing Date, there shall be delivered to the
Depository one Class [__] Certificate, one Class [__] Certificate, Class [_____]
Certificate, one Class [__] Certificate, Class [__] Certificate, one Class [__]
Certificate, one Class [__] Certificate and one Class [__] Certificate, each in
registered form registered in the name of the Depository's nominee, Cede & Co.,
the total face amount of which represents [__]% of the Class [__] Initial
Certificate Principal Balance, Class [__] Initial Certificate Principal Balance,
Class [__] Initial Certificate Principal Balance, Class [__] Initial Certificate
Principal Balance, Class [__] Initial Certificate Principal Balance, Class [__]
Initial Certificate Principal Balance, the Class [__] Initial Certificate
Principal Balance and the Class [__] Initial Certificate Principal Balance,
respectively, in each case rounded down to the nearest $1. Each Class [__],
Class [__], Class [__], Class [__], Class [__], Class [__], Class [__] or Class
[__] Certificate so registered shall bear the following legend:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTA- TIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN."
Section 4.04. Mutilated, Destroyed, Lost or Stolen Certificates. If (i) any
mutilated Certificate is surrendered to the Trustee or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (ii) there is delivered to the Trustee and the Certificate
Registrar such security or indemnity as may be required by it to save each of
them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class and
of like tenor and denomination. Upon the issuance of any new Certificate under
this Section, 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 replacement Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the Trust Fund, as if originally issued, whether or not the
destroyed, lost or stolen Certificate shall be found at any time.
Section 4.05. Persons Deemed Owners. The Depositor, the Servicer, the
Trustee, the Certificate Registrar and any Paying Agent may treat the person in
whose name any Certifi- cate is registered as the owner of such Certificate for
the purpose of receiving payments pursuant to Section 6.01 and for all other
purposes whatsoever, and none of the foregoing entities shall be affected by
notice to the contrary.
Section 4.06. Appointment of Paying Agent. The Trustee may appoint a Paying
Agent for the purpose of making distributions to Certificateholders pursuant to
Section 6.01 and payments pursuant to Section 10.12. Any Paying Agent so
appointed either shall be a bank or trust company or shall have a rating
acceptable to each Rating Agency. In the event of any such appointment, on or
prior to each Distribution Date the Trustee shall deposit or cause to be
deposited with the Paying Agent, from amounts in the Certificate Account, a sum
sufficient to make the payments to Certificateholders in the amounts and in the
manner provided for in Section 6.01, such sum to be held in trust for the
benefit of Certificateholders. The Trustee initially appoints itself as Paying
Agent.
The Trustee shall cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee that such Paying Agent is at all times acting as agent for the
Trustee and such Paying Agent will hold all sums held by it for the payment to
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to such Certificateholders.
Section 4.07. Access to List of Certificateholder Names and Addresses. The
Certificate Registrar will furnish to the Trustee (if the Trustee is not the
Certificate Registrar), the Depositor and the Servicer within five days after
receipt by the Certificate Registrar of a request therefor from the Trustee, the
Depositor or the Servicer in writing, a list, in such form as the Trustee, the
Depositor or the Servicer reasonably may require of the names and addresses of
the Certificateholders as of the most recent Record Date. If Holders of Certifi-
xxxxx of any Class evidencing, as to such Class, aggregate Percentage Interests
of 25% or more (the "Applicants") apply in writing to the Trustee, and such
application states that the Applicants desire to communicate with other
Certificateholders of such Class with respect to their rights under this
Agreement or under the Certificates of such Class and is accompanied by a copy
of the communication which such Applicants proposed to transmit, then the
Trustee, within five Business Days after the receipt of such application, shall
afford such Applicants access during normal business hours to the most recent
list of Certificateholders of such Class held by the Trustee. If such list is as
of a date more than [__] days prior to the date of receipt of such Applicants'
request, the Trustee promptly shall 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 neither
the Servicer, the Certificate Registrar, the Depositor nor 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 4.08. Authenticating Agents. The Trustee may appoint one or more
Authenti- cating Agents (the "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."
Section 4.09. The [__] Certificates.
(a) The Class [__] Certificates may not be assigned or transferred except
in accor- dance with Sections 4.02, 4.09 and any other applicable provision of
this Agreement. The Holders of the Class [__] Certificates, by purchasing such
Class [__] Certificates, for purposes of Section 10.12 (i) shall be deemed to
consent to the appointment of the Trustee as (A) the tax matters person for the
Trust Fund and (B) the attorney-in-fact and agent for any person that is the tax
matters person if the Trustee is unable to serve as the tax matters person and
(ii) agrees to execute any documents required to give effect to the provisions
of clause (i) above.
(b) Each Person who has or acquires any Ownership Interest in a Class [__]
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 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 [__] Certificate are expressly subject to the following
provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Class [__] 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) In connection with any proposed Transfer of any Ownership
Interest in a Class [__] Certificate, the proposed Transferee shall
deliver to the Trustee, the following:
(A) a Transfer Affidavit; and
(B) an agreement by the proposed Transferee to be bound by and to
abide by the provisions of this Section.
(iii) Notwithstanding the delivery of a Transfer Affidavit
by a proposed Transferee under clause (ii) above, if the Trustee
or a Responsible Officer has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of any
Ownership Interest in a Class [__] Certificate to such proposed
Transferee shall be effected.
(iv) Each Person holding or acquiring any Ownership
Interest in a Class [__] Certificate shall agree (A) to
require a Transfer Affidavit from any other Person to whom
such Person attempts to Transfer any Ownership Interest in
such Class [__] Certificate and (B) not to Transfer any
Ownership Interest in such Class [__] Certificate or to
cause the Transfer of any Ownership Interest in such Class
[__] Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee.
(v) Any attempted or purported Transfer of any
Ownership Interest in a Class [__] 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 become the
holder of an Ownership Interest in a Class [__] Certificate
in violation of the provisions of this Section, then, upon
discovery by a Responsible Officer of, or due notification
to the Trustee that the recognition of the Transfer of such
Ownership Interest in such Class [__] Certificate was not in
fact permitted by this Section, the last preceding Permitted
Transferee shall be restored to all rights as Holder thereof
retroactive to the date of Transfer of such Ownership
Interest in such Class [__] Certificate. The Trustee shall
be entitled but not obligated to recover from any Holder of
a Class [__] Certificate that was in fact not a Permitted
Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted
Transferee, all payments made on such Class [__] Certificate
at and after such time. Any such payments so recovered by
the Trustee shall be paid and delivered by the Trustee to
the last preceding Permitted Transferee of such Class [__]
Certificate.
Upon notice to the Trustee that any legal or beneficial interest in any
portion of a Class [__] Certificate has been transferred, either directly or
indirectly, to any Person that is not a Permitted Transferee or an agent thereof
(including a broker, nominee or middleman) in contravention of the foregoing
restrictions, or that is a pass-through entity, as defined in Section 860E(e)(6)
of the Code, an interest in which is held of record by a Person that is not a
"Permitted Transferee", the Trustee shall furnish to the Internal Revenue
Service and those Persons specified in Section 860E(c)(3) and (b) of the Code
such information necessary to the application of Section 860E(e) of the Code as
may be required by the Code, including but not limited to, the present value of
the total anticipated excess inclusions with respect to such Class [__]
Certificate (or portion thereof) for periods after such Transfer and the total
excess inclusions for any taxable year allocable to any holder of an interest in
such pass-through entity which is not a Permitted Transferee. The Trustee may
charge a reasonable fee for computing and furnishing such information to the
transferor or to such agent or to such pass- through entity referred to above;
however, the Trustee shall in no event be excused from furnishing such
information to the Internal Revenue Service. The foregoing restrictions on
transfer contained in this Section shall cease to apply to Transfers occurring
on or after the date on which there shall have been delivered to the Trustee,
the Depositor and the Servicer, in form and substance satisfactory to the
Trustee, an Opinion of Counsel that eliminating such restrictions will not cause
the Trust Fund to fail to qualify as a two-tiered REMIC at any time while the
Certificates are outstanding.
(c) Each Holder of Class [__] Certificates, by purchasing such Class [__]
Certificates, agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of Temporary Treasury
Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon becoming the Holder of
a Class [__] Certificate, if it is, or is holding such Class [__] Certificates
on behalf of, a "pass-through interest holder".
(d) No Class [__] Certificate shall be registered in the name of the
Depositor or any Person known to a Responsible Officer to be an Affiliate
thereof, and no Subordinate Certificate shall be registered in the name of the
Depositor or any such Affiliate, unless the Trustee shall first have received
written notification from each Rating Agency that such Transfer will not cause a
reduction or withdrawal of the rating then assigned to any of the Rated
Certificates.
ARTICLE FIVE
ADMINISTRATION AND SERVICING OF CONTRACTS
Section 5.01. Responsibility for Contract Administration and Servicing. The
Servicer shall service and administer the Contracts in accordance with and
subject to the terms of this Agreement, shall have full power and authority to
do any and all things which it may deem necessary or desirable in connection
with such servicing and administration; provided that if, as a result of
extending of payments (including any increase in the number of payments) in the
ordinary course of the Servicer's collection procedures, any Contract will be
outstanding on the Final Scheduled Distribution Date, then the Servicer shall
repurchase such Receivable pursuant to Section 3.05. The relationship of the
Servicer (and of any successor Servicer other than the Trustee) to the Trustee
under this Agreement is intended by the parties to be that of independent
contractor and not that of a joint venturer, partner or agent of the Trustee.
Section 5.02. Standard of Care. In managing, administering, servicing and
making collections on the Contracts pursuant to this Agreement, the Servicer
will exercise the same degree of skill and care, consistent with the terms of
this Agreement, that the Servicer exercises in managing, servicing,
administering and collecting on similar manufactured housing installment sales
contracts and installment loan agreements owned and/or serviced by the Servicer;
provided that nothing herein shall require the Servicer to violate any
applicable federal, state or local common or statutory law, regulation or rule.
Without limiting the generality of the foregoing, the Servicer is hereby
authorized and empowered by the Trustee when the Servicer believes it
appropriate in its best judgment, to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and all
other comparable instruments, with respect to the Contracts and any related
Mortgages and with respect to the Manufactured Homes and any related Mortgaged
Properties. The Servicer shall furnish the Trustee with an Officer's Certificate
and all powers of attorney and other documents necessary or appropriate, in the
judgement of the Servicer, to enable the Servicer to service and administer the
Contracts. For purposes of this Agreement, the Trustee shall be deemed to have
given to the Servicer a power of attorney for purposes of servicing the
Contracts.
Section 5.03. Subservicing.
(a) The Servicer may enter into Subservicing Agreements with one or more
Subservicers for the servicing and administration of certain of the Contracts.
References herein to actions taken or to be taken by the Servicer in servicing
the Contracts include actions taken or to be taken by a Subservicer on behalf of
the Servicer. Each Subservicing Agreement will be upon such terms and conditions
as are not inconsistent with this Agreement and as the Servicer and the
Subservicer have agreed. With the approval of the Servicer, a Subservicer may
delegate its servicing obligations to third-party servicers, but such
Subservicer will remain obligated under the related Subservicing Agreement. The
Servicer and a Subservicer may enter into amendments thereto or different forms
of Subservicing Agreements; provided that any such amendments or different forms
shall be consistent with and not violate the provisions of this Agreement or
materially adversely affect the rights of Certificateholders hereunder.
(b) The Servicer shall be entitled to terminate any Subservicing Agreement
that may exist in accordance with the terms and conditions of such Subservicing
Agreement and without any limitation by virtue of this Agreement; provided that
in the event of termination of any Subservicing Agreement by the Servicer or the
related Subservicer, the Servicer shall either act directly as Servicer of the
related Contract or enter into a Subservicing Agreement with a successor
Subservicer which will be bound by the terms of the related Subservicing
Agreement.
(c) Notwithstanding any Subservicing Agreement, any of the provisions of
this Agreement relating to agreements or arrangements between the Servicer or a
Subservicer or reference to actions taken through such Persons or otherwise, the
Servicer shall remain obligated and liable to the Trustee and the
Certificateholders for the servicing and administering of the Contracts in
accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such Subservicing Agreements or
arrangements or by virtue of indemnification from a Subservicer and to the same
extent and under the same terms and conditions as if the Servicer alone were
servicing and administering the Contracts. The Servicer shall be entitled to
enter into an agreement with a Subservicer for indemnification of the Servicer
and nothing contained in this Agreement shall be deemed to limit or modify such
indemnification.
(d) Any Subservicing Agreement that may be entered into and any other
transactions or servicing arrangements relating to the Contracts involving a
Subservicer shall be deemed to be between the Subservicer and the Servicer
alone, and neither the Trustee nor the Certificateholders shall be deemed
parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Subservicer except as set forth in the
immediately succeeding paragraph.
(e) In the event the Servicer shall for any reason no longer be a servicer
(including, but not limited to, by reason of an Event of Default), the Trustee
or its designee may, at the sole discretion of the Trustee, thereupon assume all
of the rights and obligations of such Servicer under each Subservicing Agreement
selected by the Trustee in its sole discretion. In such event, the Trustee, its
designee or the successor servicer for the Trustee shall be deemed to have
assumed all of the Servicer's interest therein and to have replaced the Servicer
as a party to each such Subservicing Agreement to the same extent as if such
Subservicing Agreement had been assigned to the assuming party except that the
Servicer shall not thereby be relieved of any liability or obligations under the
Subservicing Agreement. The Servicer shall, upon request of the Trustee but at
the expense of the Servicer, deliver to the assuming party all documents and
records relating to each such Subservicing Agreement and the Contracts then
being serviced and an accounting of amounts collected and held by it and
otherwise use its best efforts to effect the orderly and efficient transfer of
the Subservicing Agreement to the assuming party.
Section 5.04. Records. The Servicer, during the period it is servicer
hereunder, shall maintain such books of account and other records as will enable
the Trustee (if the Trustee so elects in its discretion) to determine the status
of each Contract. Without limiting the generality of the preceding sentence, the
Servicer shall keep such records in respect of Liquidation Expenses as will
enable the Trustee (if the Trustee so elects in its discretion) to determine
that the correct amount of Net Liquidation Proceeds in respect of a Liquidated
Contract has been deposited in the Collection Account.
Section 5.05. Inspection.
(a) During the term of this Agreement, the Servicer shall afford the
Trustee and its authorized agents reasonable access during normal business hours
to the Servicer's records relating to the Contracts and will cause its personnel
to provide reasonable assistance in any examination of such records by the
Trustee or any of its authorized agents. The examination and assistance referred
to in this Section will be conducted in a manner which does not interfere
unreasonably with the Servicer's normal operations or customer or employee rela-
tions. Without otherwise limiting the scope of the examination the Trustee may
make, the Trustee or its authorized agents, using generally accepted audit
procedures, may in their discretion verify the status of each Contract and
review the records relating thereto for conformity to Monthly Reports prepared
pursuant to Section 7.01 and compliance with the standards represented to exist
as to each Contract in this Agreement.
(b) At all times during the term hereof, the Servicer shall keep available
a copy of the Contract Schedule at its principal executive office for inspection
by Certificateholders.
Section 5.06. Payment of Taxes. If the Servicer becomes aware of the
nonpayment by an Obligor of a personal property Tax or other Tax or Tax related
charge which may result in a lien upon a Manufactured Home prior to, or equal to
or coordinate with, the lien of the related Contract, the Servicer, consistent
with Section 5.02, shall take action to avoid the attachment of any such lien.
If the Servicer shall have paid any such personal property Tax or other Tax or
Tax related charge directly on behalf of an Obligor, the Servicer shall seek
reimbursement therefor only from the related Obligor (except as provided in the
last sentence of this Section) and may separately add such amount to the
Obligor's obligation as provided by the Contract, but, for the purposes of this
Agreement, may not add such amount to the Contract Principal Balance of the
Contract. If the Servicer shall have repossessed a Manufac- tured Home on behalf
of the Certificateholders and the Trustee, the Servicer shall pay the amount of
any such personal property Tax or other Tax or Tax related charge arising during
the time such Manufactured Home is in the Servicer's possession, unless the
Servicer is contesting in good faith the validity of such personal property Tax
or other Tax or Tax related charge on such Manufactured Home. If the Obligor
does not reimburse the Servicer for payment of taxes pursuant to this Section
and the related Contract is liquidated after a default, the Servicer shall be
reimbursed for its payment of such Taxes out of the related Liquidation
Proceeds.
Section 5.07. Enforcement.
(a) When the Servicer shall xxx to enforce or collect upon Contracts, then
it shall bring suit in its own name, if possible, or as agent for the Trust
Fund. If the Servicer elects to commence a legal proceeding to enforce a
Contract, the act of commencement shall be deemed to be an automatic assignment
of the Contract to the Servicer for purposes of collec- tion only. If, however,
in any enforcement suit or legal proceeding it is held that the Servicer may not
enforce a Contract on the ground that it is not a real party in interest or a
holder entitled to enforce the Contract, the Trustee on behalf of the
Certificateholders shall, at the Servicer's expense, take such steps as the
Servicer deems necessary to enforce the Contract, including bringing suit in its
name as Trustee hereunder or the names of the Certifi- cateholders. If there has
been a recovery of attorneys' fees in favor of the Servicer or the Trust Fund in
an action involving the enforcement of a Contract, the Servicer shall be
reimbursed out of such recovery for its reasonable out-of-pocket attorney's fees
and expenses incurred in such enforcement action.
(b) The Servicer shall exercise any rights of recourse against third
Persons that exist with respect to any Contract in accordance with Section 5.02.
In exercising such rights, the Servicer is authorized on the Trustee's behalf to
reassign the Contract or to resell the related Manufactured Home to the Person
against whom recourse exists at the price set forth in the document creating the
recourse.
(c) The Servicer may grant to the Obligor on any Contract any rebate,
refund or adjustment out of the Collection Account that is required because of
an overpayment in connection with the prepayment in full of the Contract or
otherwise. The Servicer, except as required by the Contract or by law, will not
permit any rescission or cancellation of any Contract.
Section 5.08. Hazard Insurance Policies.
(a) Except as otherwise provided in Section 5.08(b), the Servicer shall
cause to be maintained with respect to each Contract (other than Contracts
relating to REO Properties) one or more Hazard Insurance Policies which provide
the same coverage as a standard form fire and extended coverage insurance policy
that is customary in the Servicer's procedures for manufactured housing
contracts owned and/or serviced by the Servicer, issued by a company authorized
to issue such policies in the State in which the Manufactured Home is located,
and in an amount which is not less than the lesser of the maximum insurable
value or the Contract Principal Balance of the related Contract. 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 pay such premiums out of its
own funds, and may add separately such premium and any related interest to the
Obligor's obliga- tion as provided by the Contract but may not add such premium
and interest to the Contract Principal Balance of the Contract for purposes of
this Agreement. If the Obligor does not reimburse the Servicer for payment of
such premiums and the related Contract is liquidated after a default, the
Servicer shall be reimbursed for its payment of such premiums out of the related
Liquidation Proceeds.
(b) The Servicer may, in lieu of causing individual Hazard Insurance
Policies to be maintained with respect to each Manufactured Home pursuant to
this Section, and shall, to the extent that a 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 in a connection with a hazard as provided in Section 5.08(a) resulting
from the absence or insufficiency of individual Hazard Insurance Policies. Any
such blanket policy shall be in the amount sufficient to cover all losses in a
connection with a hazard on the Contracts. The Servicer shall pay, out of its
own funds, the premium for such policy on the basis described therein and shall
deposit in the Collection Account, on the Business Day next preceding the
Determination Date following the Due Period in which the insurance proceeds from
claims in respect of any Contracts under such blanket policy are received, the
deductible amount with respect to such claims. The Servicer shall not, however,
be required to deposit any deductible amount with respect to claims under
individual Hazard Insurance Policies maintained pursuant to Section 5.08(a).
(c) If the Servicer shall have repossessed a Manufactured Home on behalf of
the Trustee or foreclosed upon or otherwise acquired any Mortgaged Property, the
Servicer shall either (i) maintain at its expense a Hazard Insurance Policy with
respect to such Manufactured Home or Mortgaged Property meeting the requirements
of Section 5.08(a) or 5.08(b), except that the Servicer shall be responsible for
depositing any deductible amount with respect to all claims under individual
Hazard Insurance Policies or (ii) indemnify the Trust Fund against any damage to
such Manufactured Home prior to resale or other disposition.
(d) Any cost incurred by the Servicer in maintaining any of the foregoing
insurance, for the purpose of calculating monthly distributions to
Certificateholders, shall not be added to the Contract Principal Balance of any
Contract, notwithstanding that the terms of such Contract so permit. The
Servicer shall not be entitled to reimbursement from the Depositor, the Trustee
or the Certificateholders for such costs. Such costs (other than the cost of the
blanket policy) shall only be recovered out of late payments by the Obligor for
such premiums or, if the related Contract is liquidated after a default, out of
the related Liquidation Proceeds.
Section 5.09. Hazard Insurance Policy Collections; Consent to Manufactured
Home Transfers; Assumption Agreements.
(a) The Servicer agrees to present, on behalf of itself, the Trustee and
Certificateholders, claims to the insurer under any Hazard Insurance Policies
and, in this regard, to take such reasonable action as shall be necessary to
permit recovery under any Hazard Insurance Policies. Any amounts collected by
the Servicer under any such Hazard Insurance Policies shall be deposited in the
Collection Account pursuant to Section 6.04(b)(v), except to the extent they are
applied to the restoration of the related Manufactured Home or released to the
related Obligor in accordance with the normal servicing procedures of the
Servicer.
(b) The Servicer shall not withhold its consent to any transfer of
ownership of a Manufactured Home in accordance with the related Contract unless
the proposed transferee does not meet the Servicer's then applicable
underwriting standards (exclusive of down payment requirements). In addition,
the Servicer shall not withhold such consent if such withholding of consent is
not permitted under applicable law and governmental regulations.
(c) In any case in which a Manufactured Home is to be conveyed to a Person
by an Obligor, and such Person is to enter into an assumption agreement or
modification agreement or supplement to the Contract, upon the closing of such
conveyance, the Servicer shall cause the originals of the assumption agreement,
the release (if any) or the modification or supplement to the Contract to be
included in the related Contract File. Any fee collected by the Servicer for
entering into an assumption or substitution of liability agreement with respect
to such Contract will be retained by the Servicer as additional servicing
compensation. In connection with any such conveyance through an assumption,
modification or supplement, the APR borne by, and all other material terms of,
the related Contract shall not be changed.
Section 5.10. Realization upon Defaulted Contracts. Subject to applicable
law, the Servicer shall repossess, replevin, foreclose upon or otherwise
comparably convert the ownership of Manufactured Homes and any related Mortgaged
Properties securing all Contracts that come into default and which the Servicer
believes in its good faith business judgment will not be brought current;
provided that if the Servicer has actual knowledge that a Mortgaged Property is
affected by hazardous waste, then the Servicer shall not cause the Trust Fund to
acquire title to such Mortgaged Property in a foreclosure or similar proceeding
unless such condition is remediated. In connection with such repossession,
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. Subject to the foregoing proviso, 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 manage, conserve and protect such Manufactured Homes
and any related Mortgaged Property for the purposes of their prompt disposition
and sale, and shall dispose of such Manufactured Homes and any related Mortgaged
Property on such terms and conditions as are consistent with Sections 5.02 and
10.12.
Section 5.11. Costs and Expenses. All costs and expenses incurred by the
Servicer in carrying out its duties under this Agreement, including all fees and
expenses incurred in connection with the enforcement of Contracts (including
enforcement of defaulted Contracts and repossessions of Manufactured Homes
securing such Contracts), shall be paid by the Servicer and the Servicer shall
not be entitled to reimbursement hereunder, except to the extent such
reimbursement is specifically provided for in this Agreement. Notwithstanding
the foregoing, the Servicer shall be reimbursed out of the Liquidation Proceeds
of a defaulted Contract for Liquidation Expenses incurred by it in realizing
upon the related Manufactured Home and any related Mortgaged Property,
including, but not limited to: (i) costs of refurbishing and securing such
Manufactured Home; (ii) transportation expenses incurred in moving the
Manufactured Home; (iii) reasonable legal fees and expenses of outside counsel
and any associated court costs; (iv) rental expenses (including the payment of
rent not paid by the defaulting Obligor) incurred in maintaining a leasehold
interest for the Manufactured Home; and (v) sales commissions paid to Persons
that are not Affiliates of the Servicer. The Servicer shall not incur the
foregoing Liquidation Expenses unless it determines in its good faith business
judgment that incurring such expenses is in accordance with Section 5.02 and
will increase the Net Liquidation Proceeds from such Manufactured Home.
Section 5.12. Trustee to Cooperate. The Servicer is authorized to execute
an instru- ment in satisfaction of any Contract paid in full and any related
Mortgage and do such other acts and execute such other documents as the Servicer
deems necessary to discharge the Obligor thereunder and eliminate the security
interest in the Manufactured Home and any related Mortgaged Property related
thereto. The Servicer shall determine when a Contract has been paid in full; to
the extent insufficient payments are received on a Contract mistakenly
determined by the Servicer to be prepaid or paid in full and satisfied, the
shortfall shall be paid by the Servicer out of its own funds by deposit into the
Collection Account. Upon request of a Servicing Officer, the Trustee shall
perform such other acts as are reasonably requested by the Servicer (including,
without limitation, the execution of documents), and otherwise cooperate with
the Servicer in enforcement of rights and remedies with respect to Contracts.
Section 5.13. Servicing and Other Compensation. The Servicer, as
compensation for its activities hereunder including, without limitation, the
payment of fees and expenses of the Trustee pursuant to Section 10.05, shall be
entitled to receive on each Distribution Date the Monthly Servicing Fee pursuant
to Section 6.02. Application fees, Late Payment Fees, Extension Fees, processing
fees and any transfer of equity or assumption fees or Repossession Profits shall
be retained by the Servicer as additional servicing compensation. If, for any
Distribution Date, the aggregate Prepayment Interest Excess exceeds the
aggregate Prepayment Interest Shortfall, such excess shall be retained by the
Servicer. If, for any Distribution Date, the aggregate Prepayment Interest
Shortfall exceeds the aggregate Prepayment Interest Excess, the aggregate
Servicing Fee for such Distribution Date shall be reduced (but not below zero)
by an amount equal to such excess.
Section 5.14. REO Disposition The Servicer shall sell each REO Property
within two years of its acquisition by the Trust Fund, unless, at the request of
the Servicer, the Trustee seeks, and subsequently receives, an Opinion of
Counsel, addressed to the Trustee and the Servicer, to the effect that the
holding by the Trust Fund of such REO Property subsequent to such time will not
result in the imposition of Taxes on "prohibited transactions" of the Trust Fund
as defined in Section 860F of the Code or cause the Trust Fund to fail to
qualify as a two-tiered REMIC at any time that any Certificates are outstanding.
The Servicer shall manage, conserve, protect and operate each REO Property
solely for the purpose of its prompt disposition and sale in a manner that does
not cause any such REO Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) or result in the receipt by the Pooling
REMIC or the Issuing REMIC of any "income from non-permitted assets" within the
meaning of Section 860F(a)(2)(B) of the Code or any "net income from foreclosure
property" which is subject to taxation under the REMIC Provisions. Pursuant to
its efforts to sell a REO Property, the Servicer shall either itself or through
an agent selected by it protect and conserve such REO Property in the same
manner and to such extent as is customary in the locality where such REO
Property is located and may, incident to its conservation and protection of the
interests of the Certificateholders, rent the same, or any part thereof, as it
deems to be in the best interests of it and the Certificateholders for the
period prior to the sale of such REO Property.
The disposition of REO Property shall be carried out by the Servicer at
such price and upon such terms and conditions as the Servicer shall deem
necessary or advisable, as shall be normal and usual in its general servicing
activities.
The proceeds from the REO disposition, net of any reimbursement to the
Servicer as provided above, shall be deposited in the Collection Account in
accordance with Section 6.04(b)(ii).
ARTICLE SIX
DISTRIBUTIONS
Section 6.01. Monthly Payments.
(a) On each Distribution Date the Trustee shall, based upon the information
set forth in the related Monthly Report, withdraw from the Certificate Account
an amount equal to the Available Distribution Amount and apply such amount in
the following order of priority:
(i) concurrently, to each Class of Class A Certificates (a) first, the
related Interest Distribution Amount for such Distribution Date, with the
Available Distribution Amount being allocated among such Classes pro rata
based on their respective Interest Distribution Amounts and (b) second, the
related Carryover Interest Distribution Amount, if any, for such
Distribution Date, with the Available Distribution Amount being allocated
among the Classes of Class A Certificates pro rata based on their
respective Carryover Interest Distribution Amounts;
(ii) to the Class [__] Certificates, (a) first, the related Interest
Distribution Amount for such Distribution Date and (b) second, the related
Carryover Interest Distribution Amount, if any, for such Distribution Date;
(iii) to the Class [__] Certificates, (a) first, the related Interest
Distribution Amount for such Distribution Date and (b) second, the related
Carryover Interest Distribution Amount, if any, for such Distribution Date;
(iv) to the Class [__] Certificates, (a) first, the related Interest
Distribution Amount for such Distribution Date and (b) second, the related
Carryover Interest Distribution Amount, if any, for such Distribution Date;
(v) concurrently, to each Class of Class A Certificates, the related
Unpaid Certificate Principal Shortfall for the Class A Certificates, if
any, for such Distribution Date, allocated among the Class A Certificates
pro rata based on their respective Certificate Principal Balances;
(vi) to the Class A Certificates, the Class A Formula Principal
Distribution Amount allocated in the following manner and in the following
order of priority; provided that on any Distribution Date on which the Pool
Balance is less than or equal to the aggregate Certificate Principal
Balance of the Class A Certificates immediately prior to such Distribution
Date, the Class A Formula Principal Distribution Amount will be allocated
among the Class A Certificates pro rata based upon their respective
Certificate Principal Balances:
(A) to the Class [__] Certificates until the Class [__]
Certificate Principal Balance has been reduced to zero;
(B) to the Class [__] Certificates until the [__] Certificate
Principal Balance has been reduced to zero;
(C) to the Class [__] Certificates until the [__] Certificate
Principal Balance has been reduced to zero;
(D) to the Class [__] Certificates until the [__] Certificate
Principal Balance has been reduced to zero;
(E) to the Class [__] Certificates until the [__] Certificate
Principal Balance has been reduced to zero;
(F) to the Class [__] Certificates until the [__] Certificate
Principal Balance has been reduced to zero; and
(G) to the Class [__] Certificates until the [__] Certificate
Principal Balance has been reduced to zero;
(vii) to the Class [__] Certificates, (a) first, any related
Liquidation Loss Interest Amount for such Distribution Date, and (b)
second, any related Unpaid Liquidation Loss Interest Shortfall for such
Distribution Date;
(viii) to the Class [__] Certificates, the related Unpaid Certificate
Principal Shortfall for the Class [__] Certificates, if any, for such
Distribution Date;
(ix) to the Class [__] Certificates, the Class [__] Formula Principal
Distribution Amount, in reduction of the Certificate Principal Balance of
such Class, until it is reduced to zero;
(x) to the Class [__] Certificates, (a) first, any related Liquidation
Loss Interest Amount for such Distribution Date, and (b) second, any
related Unpaid Liquidation Loss Interest Shortfall for such Distribution
Date;
(xi) to the Class [__] Certificates, the related Unpaid Certificate
Principal Shortfall for the Class [__] Certificates, if any, for such
Distribution Date;
(xii) to the Class [__] Certificates, the Class [__] Formula Principal
Distribution Amount, in reduction of the Certificate Principal Balance of
such Class, until it is reduced to zero;
(xiii) to the Class [__] Certificates, (a) first, any related
Liquidation Loss Interest Amount for such Distribution Date, and (b)
second, any related Unpaid Liquidation Loss Interest Shortfall for such
Distribution Date;
(xiv) to the Class [__] Certificates, the related Unpaid Certificate
Principal Shortfall for the Class [__] Certificates, if any, for such
Distribution Date;
(xv) to the Class [__] Certificates, the Class [__] Formula Principal
Distribution Amount, in reduction of the Certificate Principal Balance of
such Class, until it is reduced to zero;
(xvi) to each Class of the Class A Certificates, sequentially in
accordance with clause (vi), the Accelerated Principal Distribution Amount
for such Distribution Date, in reduction of the Certificate Principal
Balance of such Classes, until each is reduced to zero;
(xvii) to the Class [__] Certificates, in the following sequential
order;
(A) the current Class [__] Strip Amount; and
(B) any Class [__] Strip Amounts from previous Distribution Dates
remaining unpaid;
(xviii) to the Servicer, an additional servicing fee equal to
[_______] of the product of [___]% and the Pool Balance at the beginning of
the related Due Period; and
(xix) any remainder to the Class [__] Certificates.
The aggregate amounts distributed to Certificateholders of each Class of
Certificates on account of principal shall not exceed the Initial Certificate
Principal Balance of such Class of Certificates. Distributions to the
Certificateholders shall be made such that the Trustee shall distribute to each
Certificateholder as of the related Record Date an amount equal to, in the case
of (A) the Class A Certificates, the product of the aggregate Percentage
Interest evidenced by such Certificateholder's Class A Certificates and the
Class [__], Class [__], Class [__], Class [__], Class [__], Class [__] or Class
[__] Distribution Amount, as the case may be, for such Distribution Date, (B)
the Class [__] Certificates, the product of the aggregate Percentage Interest
evidenced by such Certificateholder's Class [__] Certificates and the Class [__]
Distribution Amount for such Distribution Date, (C) the Class [__] Certificates,
the product of the aggregate Percentage Interest evidenced by such
Certificateholder's Class [__] Certificates and the Class [__] or [__]
Distribution Amount, as the case may be, for such Distribution Date and (D) the
Class [__] Certificates, the entire amount distributable in respect thereof on
such Distribution Date.
The Trustee shall pay each Certificateholder of record by check mailed to such
Certifi- cateholder at the address for such Certificateholder appearing on the
Certificate Register; provided that (i) so long as DTC or its nominee is the
Depository, or (ii) if neither DTC nor its nominee is the Depository and such
Certificateholder holds Certificates with original denominations aggregating at
least $[_______] and has given the Trustee appropriate written instructions at
least [___] Business Days prior to the related Record Date (which instructions,
until revised, shall remain operative for all Distribution Dates thereafter),
the Trustee shall pay such Certificateholder by wire transfer of funds. If on
any Determination Date the Servicer determines that there are no Contracts
Outstanding and no other funds or assets in the Trust Fund other than the funds
in the Collection Account or the Certificate Account, the Servicer promptly
shall instruct the Trustee to send the final distribution notice to each
Certificateholder and make provision for the final distribution in accordance
with Section 11.01(b). Final payment of any Certificate shall be made only upon
presentation of such Certificate at the office or agency of the Certificate
Registrar.
(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 Partici- pant 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 disburse- ments 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 related Certificates. Neither the Trustee, the
Certificate Registrar, the Depositor nor the Servicer shall have any responsi-
bility 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 Certificates as set forth as
Exhibits.
Section 6.02. Withdrawals from the Collection Account.
(a) The Servicer may, from time to time as provided herein, make
withdrawals from the Collection Account of amounts deposited therein pursuant to
Section 6.04 that are attributable to the Contracts for the following purposes:
(i) on each Distribution Date, to pay to the Trustee the Trustee Fee;
(ii) to pay to the Seller with respect to each Repurchased Contract in
respect thereof all amounts received thereon that are specified in such
Section to be property of the Seller;
(iii) to reimburse itself for the payment of Taxes out of Liquidation
Proceeds (to the extent not previously retained from such Liquidation
Proceeds prior to their deposit) or out of payments expressly made by the
related Obligor to reimburse the Servicer for such Taxes, as permitted by
Section 5.06;
(iv) to pay to itself the Monthly Servicing Fee;
(v) to reimburse itself or a previous Servicer out of Liquidation
Proceeds (to the extent not previously retained from Liquidation Proceeds
prior to their deposit in the Collection Account) in respect of a
Manufactured Home and out of payments by the related Obligor (to the extent
of payments expressly made by the Obligor to reimburse the Servicer for
insurance premiums) for expenses incurred by it in respect of such
Manufactured Home that are specified as being reimbursable to it pursuant
to Section 5.07, 5.08 or 5.11 or to a previous Servicer under Section 8.08;
(vi) to reimburse itself for any Nonrecoverable Advance or Advances in
accordance with Section 6.03(c) or 6.03(b) and for Advances in respect of
Liquidated Contracts in accordance with Section 6.03(c);
(vii) after the Certificate Principal Balance of each Class of
Certificates has been reduced to zero, to reimburse the Depositor for
expenses incurred and reimbursable to it pursuant to Section 8.06; and
(viii) to withdraw any amount deposited in the Collection Account that
was not required to be deposited therein (including any collections on the
Contracts that, pursuant to Section 2.01, are not part of the Trust Fund).
(b) On each Deposit Date, the Servicer shall withdraw from the Collection
Account an amount equal to the Available Distribution Amount for the related
Distribution Date and shall deposit such amount in the Certificate Account.
(c) Since, in connection with withdrawals pursuant to Section 6.02(a)(ii),
(a)(iii) and (a)(v), the Servicer's entitlement thereto is limited to
collections or other recoveries on the related Contract, the Servicer shall keep
and maintain separate accounting, on a Contract by Contract basis, for the
purpose of justifying any withdrawal from the Collection Account pursuant to
such clauses.
Section 6.03. Advances.
(a) By the close of business on each Deposit Date, the Servicer shall
deposit in the Collection Account, out of its own funds, an amount equal to the
Advance.
(b) On each Distribution Date, the Servicer shall reimburse itself for the
Outstanding Amount Advanced to the extent of actual collections of late
scheduled payments on the related Contracts.
(c) If the Servicer determines that any Advance made pursuant to Section
6.03(a) has become a Nonrecoverable Advance and at the time of such
determination there exists an Outstanding Amount Advanced, then the Servicer
shall reimburse itself out of funds in the Collection Account for the amount of
such Nonrecoverable Advance, but only to the extent of such Outstanding Amount
Advanced.
Section 6.04. Establishment of and Deposits in the Collection Account and
the Certificate Account.
(a) (i) On or before the Closing Date, the Servicer shall establish and
thereafter maintain one or more Collection Accounts which are Eligible
Accounts, in the form of separate custodial accounts, titled
["___________________"]. The Servicer shall cause monies in the Collection
Account to be invested in Eligible Investments selected by the Servicer,
which shall mature or, in the case of a money market fund, be redeemed not
later than the Determination Date next following the date of such
investment (except that if such Eligible Investment is an obligation of the
institution that maintains the Collection Account, then such Eligible
Investments shall mature or, in the case of a money market fund, be
redeemed not later than the related Deposit Date) and shall not be sold or
disposed of prior to its maturity. All such Eligible Investments shall be
made in the name of the Servicer. The Servicer shall select such Eligible
Investments so as to achieve the following objectives in the order stated:
(i) preservation of principal values and (ii) maximization of income. If an
instrument or account ceases to meet the requirements of an Eligible
Investment or Eligible Account, the Servicer shall cause all monies in such
investment and account to be withdrawn and deposited in an Eligible
Investment (which Eligible Investment shall be selected by the Servicer) or
Eligible Account, as the case may be, within [__] Business Days of the
occurrence of such investment or account ceasing to meet such requirements.
All net income and gain realized from any such investments, to the extent
provided by this Agreement, shall be added to the Collection Account.
(ii) On or before the Closing Date, the Trustee shall establish and
thereafter maintain, one or more Certificate Accounts which are Eligible
Accounts, in the form of separate custodial accounts, titled
[("____________________")], (Depositor) in trust for the Trustee". The
Trustee shall cause monies in the Certificate Account to be invested at the
written direction of the Servicer in Eligible Investments selected by the
Servicer, which shall mature or, in the case of a money market fund, be
redeemed not later than the Deposit Date next following the date of such
investment (except that if such Eligible Investment is an obligation of the
institution that maintains the Certificate Account, then such Eligible
Investments shall mature or, in the case of a money market fund, be
redeemed not later than the related Distribution Date) and shall not be
sold or disposed of prior to its maturity. All such Eligible Investments
shall be made in the name of the Trustee. The Depositor shall select such
Eligible Investments so as to achieve the following objectives in the order
stated: (i) preservation of principal values and (ii) maximization of
income. If an instrument or account ceases to meet the requirements of an
Eligible Investment or Eligible Account, the Trustee shall cause all monies
in such investment and account to be withdrawn and deposited in an Eligible
Investment (which Eligible Investment shall be selected by the Servicer) or
Eligible Account, as the case may be, within [__] Business Days of the
occurrence of such investment or account ceasing to meet such requirements.
All net income and gain realized from any such investments, to the extent
provided by this Agreement, shall be added to the Certificate Account.
(b) No later than the [______] Business Day following the Servicer's
receipt of the amounts delineated in clauses (i) through (v) below, the Servicer
shall deposit in the Collection Account the following amounts (net of all
amounts the Servicer, if [IndyMac, Inc.] is acting as Servicer, would be
entitled to withdraw therefrom pursuant to Section 6.02) in respect of the
related Distribution Date and Due Period:
(i) all amounts received from Obligors with respect to principal of
and interest on the Contracts;
(ii) all Net Liquidation Proceeds and the proceeds of the disposition
of REO Properties;
(iii) all amounts required to be deposited by the Seller pursuant to
Section 3.05(a);
(iv) the Repurchase Price of each Repurchased Contract; and
(v) deductible amounts in respect of Hazard Insurance Policies
pursuant to Section 5.08(b) and, to the extent provided in Section 5.09(a),
amounts collected by the Servicer under Hazard Insurance Policies.
Section 6.05. Transfer of Certificate Account. The Trustee may transfer the
Certificate Account to a different depository institution from time to time, so
long as the Certificate Account remains an Eligible Account. The Trustee shall
give notice of any transfer to the other parties hereto and to each Rating
Agency prior to such transfer.
Section 6.06. Transfer of Collection Account. The Servicer may transfer the
Collection Account to a different depository institution from time to time, so
long as the Collection Account remains an Eligible Account. The Servicer shall
give notice of any transfer to the other parties hereto and to each Rating
Agency prior to such transfer.
ARTICLE SEVEN
REPORTS
Section 7.01. Monthly Reports. Not later than 1:00 p.m., Eastern Standard
Time, on each Determination Date, the Servicer shall cause the Trustee to
receive a "Monthly Report," which shall include with respect to the related
Distribution Date and Due Period, (i) all information with respect to the
Contracts necessary to enable the Trustee to send statements to
Certificateholders pursuant to Section 7.06(a), (ii) the Average Sixty-Day
Delinquency Ratio, the Average Thirty-Day Delinquency Ratio and the Current
Realized Loss Ratio, (iii) the aggregate Contract Principal Balance and number
of cumulative repossessions and (iv) the amount of Cumulative Realized Losses.
The Trustee shall not be under any duty to recalculate or verify the information
provided to it in any Monthly Report.
Section 7.02. Servicer's Certificate. Each Monthly Report shall be
accompanied by a Servicer's Certificate, which shall, among other things,
certify the accuracy of the Monthly Report and that no Event of Default or event
that with notice or lapse of time or both would become an Event of Default has
occurred, or if such event has occurred and is continuing, specify the event and
its status.
Section 7.03. Other Data. Upon the receipt of a request therefor from the
Trustee, the Servicer shall furnish the Trustee with such date regarding the
Contracts and the servicing thereof as may reasonably be requested.
Section 7.04. Annual Statement as to Compliance. The Servicer will deliver
to the Depositor and the Trustee on or before [______] of each year, beginning
with the first [________] that occurs at least three months after the Cut-off
Date, an Officer's Certificate stating, as to the signer thereof, that (i) a
review of the activities of the Servicer during the preceding calendar year (or
since the Closing Date in the case of the first such Officer's Certificate) and
of performance 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 since the Closing Date in the case of the first such
Officer's Certificate), or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to such officer and the
nature and status thereof.
Section 7.05. Annual Independent Public Accountants' Servicing Report. On
or before [_______] of each year, beginning with the first [________] that
occurs at least three months after the Cut-off Date, 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 furnish a statement
to the Depositor and the Trustee to the effect that such firm has examined
certain documents and records relating to the servicing of the Contracts under
this Agreement and that, on the basis of such examination conducted
substantially in compliance with this Agreement (or such other agreements) and
generally accepted auditing standards, nothing came to the attention of such
firm that caused such firm to believe that there were any exceptions or errors
in the records relating to Contracts serviced by the Servicer, insofar as such
exceptions or errors relate to accounting matters. For purposes of such
statement, such firm may assume conclusively that all pooling and servicing
agreements among the Depositor, the Servicer and the Trustee relating to
certificates evidencing an interest in manufactured housing contracts are
substantially similar to one another except for any such pooling and servicing
agreement which by its terms specifically states otherwise.
Section 7.06. Statements to Certificateholders.
(a) Concurrently with each distribution to Certificateholders pursuant to
Article Six, the Trustee shall mail, or cause the Paying Agent to mail, to each
Certificateholder at the address appearing on the Certificate Register a
statement as of the related Distribution Date and Due Period prepared by the
Trustee (in the case of (vii) through (x) and (xii) below, based on information
furnished by the Servicer) setting forth:
(i) the aggregate amount distributed on each Class of Certificates,
separately identifying the portion thereof which constitutes principal and
interest;
(ii) the Interest Distribution Amount, Carryover Interest Distribution
Amount, Liquidation Loss Interest Amount and Unpaid Liquidation Loss
Interest Shortfall in respect of each Class of Certificates;
(iii) the Formula Principal Distribution Amount and Unpaid Certificate
Principal Shortfall in respect of each Class of Certificates;
(iv) the Accelerated Principal Distribution Amount,
Overcollateralization Reduction Amount, Target Overcollateralization Amount
and Current Overcollateralization Amount;
(v) the Class [__], Class [__], Class [__] and Class [__] Certificate
Principal Balances, after giving effect to the distributions of principal
made on such Distribution Date;
(vi) the Adjusted Certificate Principal Balance of the Class [__],
Class [__] and Class [__] Certificates, after giving effect to the
distributions of principal and allocation of Liquidation Loss Amounts made
on such Distribution Date;
(vii) the Monthly Servicing Fee and other servicing compensation;
(viii) the number of and aggregate Contract Principal Balance of
Contracts with payments delinquent 30 to 59, 60 to 89 and 90 or more days,
respectively;
(ix) the number of and aggregate Contract Principal Balance of
Contracts relating to Manufactured Homes that were repossessed since the
immediately preceding Distribution Date;
(x) the number of and aggregate Contract Principal Balance of
Contracts (other than Liquidated Contracts) relating to Manufactured Homes
that were repossessed remaining in the Trust Fund on such Distribution
Date;
(xi) the Pool Factor for each Class of Certificates after giving
effect to the payment of principal to be made on such Distribution Date;
and
(xii) [the Realized Losses and the Cumulative Realized Losses for such
Distribution Date]
such other customary factual information as is available to the Servicer as the
Servicer deems necessary and can be obtained reasonably from its existing data
base to enable Certificateholders to prepare their tax returns.
Within a reasonable period of time after the end of each calendar year,
subject to the next sentence, but in no event later than [__] days after the end
of such year, the Trustee shall prepare and furnish to each Person who at any
time during the calendar year was the Holder of a Certificate, a statement
containing the information set forth in clauses (i) and (ii) above, in the case
of Class A, Class [__] and Class [__] Certificateholders, and (v), (vi) and
(vii) above, in the case of Holders of Subordinated Certificates, aggregated for
such calendar year or applicable portion thereof during which such Person was a
Certificateholder. 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.
(b) 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 a holder of Class [__] Certificates a
statement containing the applicable distribution information provided pursuant
to this Section aggregated for such calendar year or applicable portion thereof
during which such Person was a holder of the Class [__] Certificates. Such
obligation shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Trustee pursuant
to any requirement of the Code.
(c) A Certificateholder holding (or Certificate Owner owning beneficial
interests in) Certificates of a Class representing in the aggregate at least
[__]% of the Percentage Interest of such Class shall, upon written request to
the Trustee, be entitled to receive copies of all reports provided to the
Trustee at such Holder's or Owner's expense.
Section 7.07. Other Reports. The Trustee shall file on behalf of the Trust
all reports required to be filed with the Securities and Exchange Commission or
any exchange or association of securities dealers pursuant to the Securities
Exchange Act of 1934, as amended, or any rules and regulations promulgated
thereunder.
ARTICLE EIGHT
INDEMNITIES; THE DEPOSITOR AND THE SERVICER
Section 8.01. Liabilities to Obligors. No liability to any Obligor under
any of the Contracts arising out of any act or omission to act of the Seller or
the Servicer in servicing the Contracts prior to the Closing Date is intended to
be assumed by any other party hereto, 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, each party
hereto and the Certificateholders expressly disclaim such assumption.
Section 8.02. Tax Indemnification. The Seller agrees to pay, and to
indemnify, defend and hold harmless the Trust Fund, the Trustee, the Certificate
Registrar, the Paying Agent, the Depositor and the Certificateholders from any
Taxes which may at any time be asserted with respect to, and as of the date of,
the transfer of the Contracts from the Seller to the Depositor and from the
Depositor to the Trust Fund, including, without limitation, any sales, gross
receipts, general corporation, personal property, privilege or license Taxes
(but not including any income or franchise Taxes or federal, state or other
Taxes arising out of the creation of the Trust Fund and the issuance of the
Certificates or distributions with respect thereto) and costs, expenses and
reasonable counsel fees in defending against the same.
Section 8.03. Servicer's Indemnities. The Servicer shall defend and
indemnify the Trust Fund, the Trustee, the Certificate Registrar, the Paying
Agent, the Depositor 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, arising from third party claims
or actions in respect of any action taken or failed to be taken by the Servicer
with respect to any Contract, Manufactured Home or Mortgaged Property and any
failure by the Servicer to perform its obligations in compliance with this
Agreement. This indemnity shall survive any Event of Default (but the
obligations of the Servicer under this Section shall not relate to any actions
of any subsequent Servicer after an Event of Default) and any payment of the
amount owing under, or any repurchase by the Seller of, any such Contract.
Section 8.04. 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 Trustee will repay such amounts
collected to the Seller or the Servicer, as the case may be, together with any
interest collected thereon.
Section 8.05. Merger or Consolidation of the Depositor, the Seller or the
Servicer. The Seller and the Servicer will each keep in full effect its
existence, rights and franchises as a corporation, and will obtain and preserve
its qualification to do business as a foreign corporation in each jurisdiction
in which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Contracts and
to perform its duties under this Agreement.
Any person into which the Depositor, the Seller or the Servicer may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which any such entity shall be a party, or any Person
succeeding to the business of any such entity, shall be the successor of the
Depositor, the Seller or the Servicer, as the case may be, hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding; provided
that the successor or surviving Person to the Servicer shall satisfy Section
8.08(a)(ii) with respect to the qualifications of a successor to the Servicer.
The Seller, the Depositor and the Servicer shall promptly notify each Rating
Agency of any such merger, conversion or consolidation to which it is a party.
Section 8.06. Limitation on Liability of the Depositor and Others. Neither
the Depositor nor any of its directors, officers, employees or agents shall be
under any liability to the Trustee 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 that this provision shall
not protect the Depositor or any such individual against any liability that
would otherwise be imposed by reason of its willful misconduct, bad faith or
negligence. The Depositor and any of its directors, officers, employees or
agents 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 Depositor shall not be under any obligation to appear in, prosecute or
defend any legal action which arises under this Agreement and which in its
opinion may involve it in any expense or liability; provided that the Depositor
may in its discretion undertake any such action which it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities payable
from the Collection Account and the Depositor shall be entitled to be reimbursed
therefor out of monies on deposit in the Collection Account as provided by
Section 6.02(a)(vii); provided that such reimbursement shall be made, from time
to time on one or more Distribution Dates, only out of the Available
Distribution Amount that remains after the distributions to the
Certificateholders on such Distribution Date have been made.
Section 8.07. Assignment by Servicer. The Servicer may, with the prior
written consent of the Depositor and notice to each Rating Agency, assign its
rights and delegate its duties and obligations under this Agreement; provided
that the Person accepting such assignment or delegation shall be a Person which
is satisfactory to the Trustee and the Depositor, in their sole and reasonable
judgment, such Person is willing to service the Contracts and such Person
executes and delivers to the Depositor and the Trustee an agreement, in form and
substance reasonably satisfactory to the Depositor and the Trustee, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by the
Servicer under this Agreement; provided further that such assignment and
delegation will not cause any Rating Agency to qualify, downgrade or withdraw
its then-current rating of any Rated Certificates, as evidenced by a letter from
each Rating Agency. In the case of any such assignment and delegation, the
Servicer shall be released from its obligations under this Agreement, except
that the Servicer shall remain liable for all liabilities and obligations
incurred by it as Servicer hereunder prior to the satisfaction of the conditions
to such assignment and delegation set forth in the next preceding sentence.
Section 8.08. Successor to the Servicer.
(a) In connection with the termination of the Servicer's responsibilities
and duties under this Agreement pursuant to Section 9.01, the Trustee shall (i)
succeed to and assume all of the Servicer's responsibilities, rights, duties and
obligations under this Agreement (except any liability or responsibility for any
act or omission that arose prior to the Servicer's termination and the duty to
pay and indemnify the Trustee pursuant to Section 10.05), or (ii) appoint a
successor acceptable to the Depositor, which shall have a net worth of not less
than $[________] and shall have serviced for at least one year prior to such
appointment a portfolio of not less than $[_______] aggregate principal amount
of manufactured housing installment sales contracts and/or installment loans and
which shall succeed to all rights and assume all of the responsibilities, duties
and liabilities of the Servicer under this Agreement prior to the termination of
the Servicer's responsibilities, duties and liabilities under this Agreement
(except that the duty to pay and indemnify the Trustee pursuant to Section 10.05
shall be subject to negotiation at the time of such appointment). If the Trustee
becomes the successor to the Servicer in accordance with this Section, the
Trustee may, if it shall be unwilling to continue to so act, or shall, if it is
unable to so act, appoint or petition a court of competent jurisdiction to
appoint, a successor satisfying the requirements in clause (ii) above. In
connection with any appointment of a successor Servicer, the Trustee may make
such arrangements for the compensation of such successor out of payments on
Contracts as it and such successor shall agree or such court shall determine;
provided that no such compensation shall be in excess of a monthly amount equal
to [____] of the product of [_____]% and the Pool Balance for the Distribution
Date in respect of which such compensation is being paid without the consent of
all of the Certificateholders and notice to each Rating Agency. If the
Servicer's duties, responsibilities and liabilities under this Agreement should
be terminated pursuant to Section 8.07 or 9.01, the Servicer shall discharge
such duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement, shall cooperate with the Trustee and any successor Servicer in
effecting the termination of its responsibilities and rights hereunder and shall
take no action whatsoever that might impair or prejudice the rights or financial
condition of its successor. The assign- ment by the Servicer pursuant to Section
8.07 or removal of the Servicer pursuant to Section 9.01 shall not become
effective until a successor Servicer shall be appointed pursuant to this Section
and shall in no event relieve the Seller of liability pursuant to Sections 3.05
and 10.05. Nothing herein shall be construed to impose any obligation of the
Seller upon the Trustee or any successor to the Servicer under any
circumstances.
(b) Any successor Servicer appointed as provided herein shall execute,
acknowledge and deliver to the Servicer and to the Trustee an instrument
accepting such appointment, whereupon such successor Servicer shall become fully
vested with all the rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer, with like effect as if originally named as a party
to this Agreement and the Certificates. Any assignment by or termination of the
Servicer pursuant to Section 8.07 or 9.01 or the termination of this Agree- ment
pursuant to Section 11.01 shall not affect any claims that the Trustee may have
against the Servicer arising prior to any such termination or resignation.
The Servicer shall timely deliver to the successor Servicer the funds in
the Certificate Account, all related funds in the Collection Account and all
Contract Files (to the extent in the Servicer's possession), Servicing Files and
related documents and statements held by it hereunder and the Servicer shall
account for all funds and shall execute and deliver such instruments and do such
other things as reasonably may be required to more fully and definitely vest and
confirm in the successor Servicer all such rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer. Without
limitation, the Trustee 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, transfer instruments in
respect of certificates of title and financing statements relating to the
Manufactured Homes), and to do any and all acts or things necessary or
appropriate to effect the purposes of such notice of termination.
Upon a successor's acceptance of appointment as successor Servicer, the
Trustee shall notify in writing the Certificateholders of such appointment.
ARTICLE NINE
DEFAULT
Section 9.01. Events of Default. If any one or more of the following events
(each, an "Event of Default") shall occur and be continuing:
(a) any failure by the Servicer to make any deposit or payment, or to
remit to the Trustee any payment, required to be made under the this
Agreement which continues unremedied for a period of [___] days after the
date upon which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Trustee or the
Depositor or to the Servicer, the Trustee and the Depositor by the Holders
of Certificates evidencing Fractional Interests aggregating not less than
[__]%;
(b) failure on the part of the Servicer duly to observe or perform in
any material respect any other of the covenants or agreements on the part
of the Servicer set forth in this Agreement which continues unremedied for
a period of [__] 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 the Depositor, or to the Servicer, the Trustee
and the Depositor by the Holders of Certificates evidencing Fractional
Interests aggregating not less than [__]%;
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or
appointing a trustee, conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the Servicer and such decree or order shall
have remained in force undischarged or unstayed for a period of [__] days;
(d) the Servicer shall consent to the appointment of a trustee,
conservator, receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to the Servicer or of or relating to all or substantially all of
the Servicer's property; or
(e) the Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, voluntarily suspend payment of its obligations or
take any corporate action in furtherance of any of the foregoing;
then, and in each and every such case, so long as such Event of Default shall
not have been remedied, the Trustee may, and at the written direction of the
Holders of Certificates evidencing Fractional Interests aggregating not less
than [__]% by notice in writing to the Servicer shall, terminate all the rights
and obligations of the Servicer under this Agreement and in, to and under the
Contracts and the proceeds thereof. The Trustee shall send a copy of any such
notice to each Rating Agency. On or after the receipt by the Servicer of such
written notice, all authority and power of the Servicer under this Agreement,
whether with respect to the Contracts or otherwise, shall pass to and be vested
in the successor appointed pursuant to Section 8.08. Upon the occurrence of an
Event of Default which shall not have been remedied, the Trustee may also pursue
whatever rights it may have at law or in equity to damages, including injunctive
relief and specific performance. The Trustee will have no obligation to take any
action or institute, conduct or defend any litigation under this Agreement at
the request, order or direction of any of the Holders of Certificates unless
such Certificateholders have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which the Trustee may
incur.
Section 9.02. Waiver of Defaults. The Holders of a majority of outstanding
Certificates may waive any default by the Servicer in the performance of its
obligations here- under and its consequences, except that a default in the
making of any required remittance to the Trustee for distribution on any of the
Certificates may be waived only by the affected Certificateholders.
Notwithstanding the foregoing, except in the case of a default by the Servicer
in the making of any required remittance to the Trustee for distribution on any
of the Certificates, the Trustee may waive a default by the Servicer if and so
long as the Trustee in good faith determines that such waiver is in the
interests of the Holders of Certificates. Upon any such waiver of a past
default, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so waived.
Section 9.03. Trustee to Act; Appointment of Successor. On and after the
time the Servicer receives a notice of termination pursuant to Section 9.01, the
Trustee or an entity appointed pursuant to Section 8.08(a)(ii) shall be the
successor in all respects to the Servicer as provided in Section 8.08.
Section 9.04. Notification to Certificateholders.
(a) Upon any such termination pursuant to Section 9.01, the Trustee shall
give prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register and to each Rating Agency.
(b) Within [__] days after the occurrence of any Event of Default known to
the Trustee, the Trustee shall transmit by mail to all Holders of Certificates,
notice of such Event of Default unless such Event of Default shall have been
cured or waived.
Section 9.05. Effect of Transfer.
(a) After a transfer of servicing duties to a successor Servicer pursuant
to Section 8.05, 8.07, 8.08 or 9.01, (i) the Trustee or such successor Servicer
may notify Obligors to make payments that are due under the Contracts after the
effective date of the transfer of servicing duties directly to the successor
Servicer and (ii) the replaced Servicer shall have no further obligations with
respect to the management, administration, servicing or collection of the
Contracts but, in the case of a transfer pursuant to Section 8.08 or 9.01, shall
remain liable for any liability of the Servicer arising prior to the date of
transfer and shall remain entitled to any compensation due the Servicer that had
already accrued prior to such transfer.
(b) A transfer of servicing duties to a successor Servicer shall not affect
the rights and duties of the parties hereunder (including but not limited to the
indemnities of the Servicer pursuant to Article Eight) other than those relating
to the management, administration, servicing or collection of the Contracts.
ARTICLE TEN
THE TRUSTEE
Section 10.01. Duties of Trustee. The Trustee, prior to the occurrence of
an Event of Default and after the curing or waiver of all Events of Default
which may have occurred, undertakes to perform such duties and only such duties
as are set forth specifically in this Agreement. In case an Event of Default 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 man would exercise or use under
the circumstances in the conduct of his own affairs, except if it is acting as
Servicer, in which case it shall use the same degree of care and skill as is
required of the Servicer.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are required specifically to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement.
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 willful misconduct; provided that:
(i) prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default 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 rely
conclusively, 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;
(ii) the Trustee shall not be liable personally for an error of
judgment made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;
and
(iii) the Trustee shall not be liable personally with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates evidencing
Fractional Interests aggregating not less than [__]% as 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.
(iv) No provision of this Agreement shall be construed to require the
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties as Trustee
hereunder or in the exercise of any of its rights or powers if there is
reasonable ground for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(v) No provision of this Agreement shall be construed to hold the
Trustee accountable for any duty of the Servicer, or for the acts or
omissions of the Servicer, until such time as the Trustee may be required
to act as Servicer pursuant to Section 9.03.
Section 10.02. Certain Matters Affecting the Trustee. Except as otherwise
provided in Section 10.01:
(a) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
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 counsel of its selection and any
advice of its counsel or any Opinion of Counsel 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 advice or
Opinion of Counsel;
(c) the Trustee shall be under no obligation to exercise any of the
trusts 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 Certificate- holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default (which has not been cured or waived), to
exercise such of the rights and powers vested in it by this Agreement, and,
unless it is acting as Servicer, to use the same degree of care and skill
in their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(d) the Trustee shall not be liable personally for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Agreement;
(e) prior to the occurrence of an Event of Default hereunder and after
the curing or waiver of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolu- tion, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing so to do by the Holders of
Certificates evidencing Fractional Interests aggregating not less than
[__]%; provided 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 expense or liability as a condition to such proceeding, and
the reasonable expense of every such examination shall be paid by the
Servicer, if an Event of Default shall have occurred and is continuing, and
otherwise by the Certificateholders requesting the investigation; and
(f) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
attorneys or custodians.
Section 10.03. Trustee Not Liable for Certificates or Contracts. The
recitals contained herein and in the Certificates (other than the certificate of
authentication of the Certificates) shall be taken as the statements of the
Depositor, the Seller or the Servicer, as the case may be, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations or warranties as to the validity or sufficiency of this
Agreement, the Certifi- xxxxx (other than the certificate of authentication of
the Certificates), the Sale and Purchase Agreement or of any Contract or related
document. The Trustee shall not be accountable for the use or application by the
Depositor, the Seller or the Servicer of any of the Certificates or of the
proceeds thereof, or for the use or application of any funds paid to the
Depositor, the Seller or the Servicer in respect of the Contracts or deposited
in or withdrawn from the Certificate Account by the Depositor, or the
Certificate Account or Collection Account by the Seller or the Servicer.
Section 10.04. Trustee May Own Certificates. The Trustee in its individual
or any other capacity may become the owner or pledgee of Certificates and may
transact business with the other parties hereto with the same rights it would
have if it were not Trustee.
Section 10.05. Servicer to Pay Fees and Expenses of Trustee. The Servicer
covenants and agrees to pay, from its own funds to the extent that such
compensation is not paid in accordance with Section 6.02(a)(i), to the Trustee
from time to time, and the Trustee shall be entitled to, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by it
in the execution of the trust hereby created and in the exercise and performance
of any of the powers and duties hereunder of the Trustee, and the Servicer will
pay (out of its own funds (except at such times that the Trustee is acting as
successor Servicer hereunder)) or reimburse the Trustee, to the extent requested
by the Trustee, for all reasonable expenses, disbursements and advances incurred
or made by the Trustee in accordance with any of the provisions of this
Agreement and the reasonable compensation and the expenses and disbursements of
its counsel and of all persons not regularly in its employ, and the expenses
incurred by the Trustee in connection with the appointment of an office or
agency pursuant to Section 10.11, except any such expense, disbursement or
advance as may arise from its negligence or bad faith. The Servicer also
covenants and agrees to indemnify (out of its own funds (except at such times
that the Trustee is acting as successor Servicer hereunder)) the Trustee for,
and to hold it harmless against, any loss, liability or expense, including taxes
(other than taxes based upon, measured by or determined by the income of the
Trustee), incurred without negligence or bad faith on the part of the Trustee
arising out of or in connection with the acceptance or administration of the
trust created by this Agreement and its duties hereunder, including the costs
and expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder. The
covenants in this Section shall be for the benefit of the Trustee in its
capacity as Trustee, Paying Agent and Certificate Registrar hereunder, and shall
survive removal or resignation of the Trustee or the termination of this
Agreement. Except as otherwise provided herein, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Tax Matters Person.
Section 10.06. Eligibility Requirements for Trustee. There shall at all
times be a Trustee hereunder which shall be either (i) [____] or any other
Person into which [____] is merged or consolidated or to which all or
substantially all of the properties and assets of [___] are transferred as an
entirety, provided that such other Person has accepted appointment as Trustee
under this Agreement in accordance with Article Ten, and that such entity is
authorized to exercise corporate trust powers under the laws of the United
States or any State and has all necessary trust powers to perform its
obligations hereunder, or (ii) a corporation or banking association organized
and doing business under the laws of the United States or any State authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $[_______], subject to supervision or examination by
federal or state authority and is not an Affiliate of the Servicer. If the
corporation or banking association referred to in clause (ii) above publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation or banking
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 10.07. Resignation and Removal of the Trustee. The Trustee at any
time may resign and be discharged from the trusts hereby created by giving
written notice thereof to the other parties hereto and each Rating Agency. Upon
receiving such notice of resignation, the Depositor promptly shall appoint a
successor Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor Trustee. If no successor trustee shall have been so appointed and have
accepted appointment within [__] 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
Section 10.06 and shall fail to resign after written request therefor by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged 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 and
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. If no successor trustee shall have been so appointed and
have accepted appointment within [__] days after receipt of such notice of
removal, the removed Trustee may petition any court of competent jurisdiction
for the appointment of a successor trustee.
The Holders of Class A Certificates or, if the Class A Certificate
Principal Balance is zero, Class [__] and Class [__] Certificates, evidencing
Percentage Interests aggregating more than [__]% of the Class A Certificates or
the Class [__] and Class [__] Certificates, voting together as a single class,
as the case may be, may remove the Trustee at any time and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Certificateholders or their attorneys-in-fact duly authorized, one complete set
of which instruments shall be delivered to the Depositor, one complete set to
the Trustee so removed and one complete set to the successor so appointed.
Any resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to this Section shall become effective upon acceptance of
appointment by the successor Trustee as provided in Section 10.08.
Section 10.08. Successor Trustee. Any successor Trustee appointed as
provided in Section 10.07 shall execute, acknowledge and deliver to the
Depositor 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 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 the like effect as if originally
named as Trustee herein. The predecessor Trustee shall execute and deliver such
instruments and do such other things as reasonably may be required for more
fully and certainly vesting and confirming in the successor Trustee all such
rights, powers, duties and obligations.
No successor Trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor Trustee shall be eligible
under Section 10.06.
Upon acceptance of appointment by a successor Trustee as provided in this
Section, the Depositor shall mail notice of the succession of such Trustee
hereunder to all Certificate- holders at their addresses as shown in the
Certificate Register, to the Servicer and to each Rating Agency. If the
Depositor fails to mail such notice within [__] days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Depositor.
Section 10.09. Merger or Consolidation of Trustee. Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be eligible under the provisions of Section 10.06, 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.
Section 10.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for the purpose of (i)
meeting any legal requirements of any jurisdiction in which any part of the
Trust Fund or property securing the same may be located at the time or (ii)
meeting any legal requirements with respect to the holding of the Contracts or
the Manufactured Homes, the Depositor 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 Fund, and to vest in such Person or Persons, in such capacity, such
title to the Trust Fund, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts,
as the Depositor and the Trustee may consider necessary or desirable. If the
Depositor shall not have joined in such appointment within [__] days after the
receipt by it of a request so to do, or in case an Event of Default 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 10.06 and no
notice to Certificateholders of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 10.08.
In the case of any appointment of a co-trustee or separate trustee pursuant
to this Section, 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 the law of any jurisdiction in which any particular act or
acts are to be performed or any regulation applicable to any of the Contracts
(whether as Trustee hereunder or as successor to the 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 Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts 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, appoint 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.
Nothing in this Section shall relieve the Trustee of its duties,
obligations or liabilities under this Agreement.
Section 10.11. Appointment of Office or Agency. The Trustee will maintain
or appoint an office or agency in New York, New York where Certificates may be
surrendered for registration of transfer or exchange. The Trustee initially
designates its Corporate Trust Office, for the purpose of keeping the
Certificate Register. The Certificate Register may be kept in an electronic form
capable of printing out a hard copy of the Certificate Register. The Trustee
will maintain an office at the address stated in Section 12.10 where notices and
demands to or upon the Trustee in respect of the Certificates may be served. 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 10.12. REMIC Administration. (a) For federal income tax purposes,
the Trust Fund shall include two REMICs, the Pooling REMIC (the "Pooling REMIC")
and the Issuing REMIC (the "Issuing REMIC"). The Certificates, other than the
Class [__] Certificates, shall be issued by the Issuing REMIC. The Class [__]
Certificates shall represent beneficial ownership of the residual interest
issued by the Pooling REMIC and the residual interest issued by the Issuing
REMIC. The Pooling REMIC shall be evidenced by the Pooling residual interest and
by the Pooling Interests having the characteristics and terms set forth below,
which interests (other than the residual interest the beneficial ownership of
which shall be represented by the Class [__] Certificates) shall be issued by
the Pooling REMIC to the Trustee. The Pooling Interests and the proceeds thereof
shall be assets of the Issuing REMIC.
(b) The Pooling Interests will consist of the [__________] and [__]. Each
Pooling regular interest will bear interest at the Weighted Average Net Contract
Rate.
The initial Pooling Balance of each Pooling Interest and its corresponding
Issuing Class are as follows:
Principal Corresponding
Balance Class
Pooling Interest [__] $[___] [__]
Pooling Interest [__] $[___] [__]
Pooling Interest [__] $[___] [__]
Pooling Interest [__] $[___] [__]
Pooling Interest [__] $[___] [__]
Pooling Interest [__] $[___] [__]
Pooling Interest [__] $[___] [__]
Pooling Interest [__] $[___] [__]
Pooling Interest [__] $[___] [__]
Pooling Interest [__] $[___] [__]
(c) Realized Losses for each Distribution Date shall be allocated
(i) first to Pooling Interest [__];
(ii) second to Pooling Interest [__];
(iii) third to Pooling Interest [__]; and
(iv) fourth, pro rata according to the outstanding principal balances
of Pooling Interests [__], [__], [__], [__], [__], [__] and [__]. No funds
shall be distributed to the Class [__] Certificates with respect to the
Pooling REMIC's residual interest until all prior Realized Losses have been
reimbursed to the Pooling Interests.
(d) The Formula Principal Distribution Amount on each Distribution Date
will be allocated in the following order:
(i) first, to Pooling Interest [__] until its principal balance has
been reduced to what will be the principal balance of its corresponding
class after taking into account the distributions and allocation of
Realized Losses to be made on such Distribution Date;
(ii) second, to Pooling Interest [__] until its principal balance has
been reduced to what will be the principal balance of its corresponding
class after taking into account the distributions and allocation of
Realized Losses to be made on such Distribution Date;
(iii) third, to Pooling Interest [__] until its principal balance has
been reduced to what will be the principal balance of its corresponding
class after taking into account the distributions and allocation of
Realized Losses to be made on such Distribution Date;
(iv) fourth, to Pooling Interest [__] until its principal balance has
been reduced to what will be the principal balance of its corresponding
class after taking into account the distributions and allocation of
Realized Losses to be made on such Distribution Date;
(v) fifth, to Pooling Interest [__] until its principal balance has
been reduced to what will be the principal balance of its corresponding
class after taking into account the distributions and allocation of
Realized Losses to be made on such Distribution Date;
(vi) sixth, to Pooling Interest [__] until its principal balance has
been reduced to what will be the principal balance of its corresponding
class after taking into account the distributions and allocation of
Realized Losses to be made on such Distribution Date;
(vii) seventh, to Pooling Interest [__] until its principal balance
has been reduced to what will be the principal balance of its corresponding
class after taking into account the distributions and allocation of
Realized Losses to be made on such Distribution Date;
(viii) eighth, to Pooling Interest [__] until its principal balance
has been reduced to what will be the principal balance of its corresponding
class after taking into account the distributions and allocation of
Realized Losses to be made on such Distribution Date;
(ix) ninth, to Pooling Interest [__] until its principal balance has
been reduced to what will be the principal balance of its corresponding
class after taking into account the distributions and allocation of
Realized Losses to be made on such Distribution Date; and
(x) tenth, to Pooling Interest [__] until its principal balance has
been reduced to what will be the principal balance of its corresponding
class after taking into account the distributions and allocation of
Realized Losses to be made on such Distribution Date.
(e) The Pooling Interests shall be issued as non-certificated interests.
The Class [__] Certificates shall be issued in fully registered certificated
form and shall be executed and countersigned as provided in Section 4.01 hereof.
(f) On each Distribution Date, in addition to amounts otherwise
distributable thereon pursuant to Section 6.01, the Trustee shall distribute to
the Holder of the Class [__] Certificate with respect to the Pooling residual
interest any amounts remaining in the Pooling REMIC after all amounts required
to be applied pursuant to the preceding paragraphs have been so applied, and
shall distribute to the Holder of the Class [__] Certificate with respect to the
Issuing residual any amounts remaining in the Issuing REMIC after all amounts
required to be applied pursuant to the preceding paragraphs have been so
applied.
(g) The Pooling Interests identified in subparagraph (b) above shall be
designated as the "regular interests" and the Pooling residual, the beneficial
ownership of which shall be represent by the Class [__] Certificate, as the
single class of "residual interest" in the Pooling REMIC for purposes of the
REMIC provisions. Classes [__], [__], [__], [__], [__], [__], [__], and [__]
shall be designated as regular interests in the Issuing REMIC. In addition, [__]
separate regular interests in the Issuing REMIC (each, a "Class [__] Component")
shall have notional balances equal to the principal balances of each Pooling
Interest. Each Class [__] Component shall represent the right to interest on its
notional balance equal to the difference between the Weighted Average Net
Contract Rate and the Pass-Through Rate on the Issuing Class corresponding to
each such Pooling Interest (the "Class [__] Strip Amount"). The beneficial
ownership of all such interests shall be represented by the Class [__]
Certificate. The Issuing residual interest, the beneficial ownership of which
shall also be represented by the Class [__] Certificate, shall be designated as
the single class of "residual interest" in the Issuing REMIC for purposes of the
REMIC Provisions.
(h) Any amounts paid on the Class [__] Certificate shall be treated as
consisting first of the right to current interest. Any amounts in excess of
current interest shall be applied pro rata to any Deferred Amounts. The Class
[__] Certificate shall be treated as entitled to a Deferred Amount to the extent
that the amount distributed on any Distribution Date is less than the amount due
on each regular interest represented by the Class [__] Certificate. Any Realized
Losses allocated to the Class [__] Certificate shall be treated as first
proportionately reducing any Deferred Amounts on each regular interest
represented by the Class [__] Certificate and then its right to current interest
on each regular interest represented by the Class [__] Certificate. Any funds
ultimately available to reimburse such prior Realized Losses shall be applied to
each regular interest represented by the Class [__] Certificate in proportion to
the allocation of prior Realized Losses to such interest relative to the other
regular interests represented by the Class [__] Certificates, and no funds shall
be distributed to the Class [__] Certificates (other than principal
distributions) until all prior Realized Losses have been reimbursed to the Class
[__] Certificates.
(i) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 86OG(a)(9) of the Code.
(j) The Trustee shall pay any and all tax related expenses (not including
taxes) of each REMIC, including but not limited to any professional fees or
expenses related to audits or any administrative or judicial proceedings with
respect to such REMIC that involve the Internal Revenue Service or state tax
authorities, but only to the extent that (i) such expenses are ordinary or
routine expenses, including expenses of a routine audit, but not expenses of an
external audit by a taxing authority or litigation (except as described in
(ii)); or (ii) such expenses or liabilities (including taxes and penalties) are
attributable to the negligence or willful misconduct of the Trustee in
fulfilling its duties hereunder (including its duties as tax return preparer).
(k) The Trustee shall act as Tax Matters Person for each REMIC and shall
hold the Tax Matters Person Certificate. The Trustee shall prepare, sign, and
file all of each REMIC's federal and state tax and information returns as such
REMIC's direct representative. The expenses of preparing and filing such returns
shall be borne by the Trustee.
(l) The Trustee and the Holders of Certificates shall take any action or
cause each REMIC to take any action necessary to create or maintain the status
of such REMIC as a REMIC under the REMIC Provisions and shall assist each other
as necessary to create or maintain such status. Neither the Trustee nor the
Holder of any Residual Certificate shall take any action, cause any REMIC to
take any action or fail to take (or fail to cause to be taken) any action that,
under the REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of such REMIC as a REMIC or (ii) result in the imposition of
a tax upon such REMIC (including but not limited to the tax on prohibited
transactions as defined in Code Section 860F(a)(2) and the tax on prohibited
contributions set forth on Section 860G(d) of the Code) (either such event, an
"Adverse REMIC Event") unless the Trustee has received an Opinion of Counsel (at
the expense of the party seeking to take such action) to the effect that the
contemplated action will not endanger such status or result in the imposition of
such a tax.
(m) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans if permitted by the Servicing Agreement.
(n) The Trustee shall not enter into any arrangement by which any REMIC
will receive a fee or other compensation for services.
(o) Except as provided in Section 3.05, the Trustee shall not sell any
Contract or any other asset of the Trust Fund unless either (i) it has received
an Opinion of Counsel to the effect that such sale will not result in the
imposition of Taxes on "prohibited transactions" on the Trust Fund as defined in
Section 860F of the Code or (ii) the proceeds of such sale, net of any related
Taxes on "prohibited transactions" on the Trust Fund as defined in Section 860F
of the Code, will at least equal the Repurchase Price of such Contract.
Section 10.13. Tax Matters. It is intended that the assets with respect to
which any REMIC election is to be made 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 any such REMIC and that in such capacity it shall:
(a) prepare and file, or cause to be prepared and filed, in a timely manner, a
U.S. Real Estate Mortgage Investment Conduit Income Tax Return (Form 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 infor- mation returns for each
taxable year with respect to any such REMIC, 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;
(e) provide information necessary for the computation of tax imposed on the
transfer of a Residual 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) not knowingly or intentionally take any action or omit to take any
action that would cause the termination of the REMIC status; (g) pay, from the
sources specified in the last paragraph of this section, the amount of any
federal or state tax, including prohibited transaction taxes as described below,
imposed on any such REMIC 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); (h) ensure that federal, state
or local income tax or information returns shall be signed by the Trustee or
such other person as may be required to sign such returns by the Code or state
or local laws, regulations or rules; (i) maintain records relating to any such
REMIC, 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 (j) as and when
necessary and appropriate, represent any such REMIC 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
any such REMIC, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of any such
REMIC, and otherwise act on behalf of any such REMIC in relation to any tax
matter or controversy involving it. If the Trustee determines, in its sole
discretion, that it is not permitted by applicable law to perform any of the
duties in the preceding sentences, the Servicer shall carry out such duties
pursuant to the instructions of the Trustee and shall be compensated for such
services pursuant to Section 10.05. The Servicer shall not knowingly or
intentionally take any action (or knowingly or intentionally direct the Trustee
to take or omit to take any action) or knowingly or intentionally omit to take
any action (or knowingly or intentionally omit to direct the Trustee to take any
action) if such action or omission (as the case may be) would cause the
termination of the REMIC status of the Trust Fund. The Depositor and the
Servicer shall cooperate with the Trustee or its agent for such purpose in
supplying any information within their control (other than any confidential
information) that is necessary to enable the Trustee to perform its duties under
this Section.
In order to enable the Trustee to perform its duties as set forth herein,
the Depositor 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 Contracts. Thereafter, the Depositor 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
Depositor 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 Depositor 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 the
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the REMIC as defined in Section 860G(c) of the Code, on
any contribution to the REMIC after the Startup Day pursuant to Section 860G(d)
of the Code, or any other tax is imposed, including, without limitation, any
minimum tax imposed upon the REMIC pursuant to [______________], if not paid as
otherwise provided for herein, such tax shall be paid by (i) the Trustee, if any
such other tax arises out of or results from a breach by the Trustee of any of
its obligations under this Agreement, (ii) the Servicer, in the case of any such
minimum tax, 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 such tax arises out of or results from the Seller's obligation to
repurchase a Contract pursuant to Section 3.04 or 3.05 or (iv) in all other
cases, or in the event that the Trustee, the Servicer or the Seller fails to
honor its obligations under the preceding clauses (i),(ii) or (iii), any such
tax will be paid with amounts otherwise to be distributed to the
Certificateholders.
ARTICLE ELEVEN
TERMINATION
Section 11.01. Termination.
(a) The respective obligations and responsibilities of the Seller, the
Depositor, the Servicer (except as to Section 10.05) and the Trustee shall
terminate upon the earliest to occur of: (i) the later of the final payment or
other liquidation (or any Advance with respect thereto) of the last Contract or
the disposition of all property acquired upon repossession of any Contract and
the remittance of all funds due hereunder; (ii) at the option of the Depositor
or the Servicer, on any Distribution Date on or after the first Distribution
Date as of which the Pool Balance is less than [__]% of the Cut-off Date Pool
Balance, upon the purchase of the Contracts at a price equal to the sum of (1)
[___]% of the unpaid principal balance of each Contract as of the final
Distribution Date, and (2) the lesser of (a) the fair market value of any REO
Property (as determined by the Depositor or the Servicer, as the case may be, as
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 this Section), and (b)the unpaid principal balance of each Contract related
to any REO Property, plus, in the case of both clause (1) and (2), any Unpaid
Interest Shortfall and Liquidation Loss Interest Amount with respect to any
Class of Certificates, together with one month's interest at the applicable APR
on the unpaid principal balance of each Contract (including any Contract as to
which the related Manufactured Home has been repossessed or foreclosed upon and
not yet disposed of); or (iii) the sale by the Trustee of all Contracts pursuant
to Section 11.02. Notwithstanding the foregoing, in no event shall the trust
created hereby continue beyond the earlier to occur of 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 [_______]. Notwithstanding the foregoing, the
option specified in clause (ii) above shall not be exercisable if there will not
be distributed to the Holders of Certificates of each Class an amount equal to
the Certificate Principal Balance of such Class of Certificates, together with
interest accrued during the related Interest Accrual Period at the related Pass-
Through Rate, any Carryover Interest Distributable Amount and Unpaid Interest
Shortfall with respect to such Class. The Servicer shall have the prior right to
exercise the option to purchase the Contracts pursuant to clause (ii) above if
both the Depositor and the Servicer desire to exercise such option.
(b) Notice of any termination, specifying the Distribution Date upon which
all Certificateholders may surrender their Certificates to the Trustee for
payment and cancellation, shall be given promptly by the Servicer (if the
Depositor is exercising the option given it in Section 11.01(a), upon direction
by the Depositor given [___] days prior to the date such notice is to be mailed)
by letter to Certificateholders, the Trustee and each Rating Agency mailed no
later than the [___] day of the month preceding the month of such final
distribution specifying (i) the 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, (ii) the amount of any
such final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date will not be applicable, payments being made only upon
presentation and surrender of the Certificates at the office or agency of the
Trustee therein specified. After giving such notice, the Certificate Registrar
shall not register the transfer or exchange of any Certificates. If such notice
is given in connection with the Depositor's or the Servicer's election to
purchase, the Depositor or the Servicer shall deposit in the Certificate Account
on the Business Day prior to the applicable Distribution Date the amount
described in Section 11.01(a)(ii). Upon presentation and surrender of the
Certificates, the Trustee shall cause to be distributed, from funds in the
Certificate Account, to Holders of Certificates of each Class, in proportion to
their respective Percentage Interests, an amount equal to the Certificate
Principal Balance of such Class of Certificates, together with one month's
interest on such Certificate Principal Balance at the related Pass-Through Rate
and any Unpaid Liquidation Loss Interest Shortfall or Carryover Interest
Distribution Amount with respect to such Class. Upon such termination, any
amounts remaining in the Certificate Account (other than amounts retained to
meet claims) shall be paid to the Holders of the Class [__] Certificates.
Following such final deposit, the Trustee shall execute all assignments,
endorsements and other instruments necessary to effectuate such transfer. 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 the
Certificates. Any amounts retained in the Certificate Account that are owed to
Certificateholders which have not surrendered their Certificates as of the final
Distribution Date shall be withdrawn from the Certificate Account and held in an
escrow account with the Trustee pending distribution pursuant to Section
11.01(c).
(c) If all of the Certificateholders have not surrendered their
Certificates for cancellation within [___] 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
[___] years after the second notice all Certificates shall not have been
surrendered for cancellation, the Trustee shall so notify the Depositor and the
Depositor may take appropriate steps, or may appoint an agent to take
appropriate and reasonable steps, to contact the remaining Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be paid
out of, and only to the extent of, the funds and other assets which remain in
trust hereunder.
(d) Upon any termination pursuant to the exercise of the purchase option
contained in Section 11.01(a)(ii) or otherwise, the Trust Fund shall be
terminated in accordance with the following additional requirements, unless the
Trustee has received an Opinion of Counsel to the effect that the failure of the
Trust Fund to comply with the requirements of this Section will not (i) result
in the imposition of Taxes on "prohibited transactions" of the Trust Fund as
described in Section 860F of the Code, or (ii) cause the Trust Fund to fail to
qualify as REMICs at any time that any Certificates are outstanding:
(i) within [__] days prior to the final Distribution Date set forth in
the notice given by the Servicer or the Depositor under this Section, the
Trustee shall adopt a plan of complete liquidation of the Trust Fund within
the meaning of section 860F(a)(4) of the Code which, as evidenced by an
Opinion of Counsel (which opinion shall not be an expense of the Trustee or
the Tax Matters Person), meets the requirements of a qualified liquidation;
and
(ii) at or after the time of adoption of such a plan of complete
liquidation and at or prior to the final Distribution Date, the Servicer,
as agent of the Trustee, shall sell all of the assets of the Trust Fund to
the Depositor or the Servicer, as the case may be, for cash.
By their acceptance of the Certificates, the Holders thereof hereby
authorize the Servicer to prepare and the Trustee to adopt and sign a plan of
complete liquidation.
Section 11.02. Auction Call.
(a) If neither the Depositor nor the Servicer exercises its right described
in Section 11.01(a)(ii) within [__] days after the Distribution Date on which
they are first entitled to do so, the Depositor and the Servicer shall so notify
the Trustee, and the Trustee shall use commercially reasonable efforts to
solicit bids for the purchase of all Contracts and other property of the Trust
Fund from no fewer than [___] prospective purchasers that it believes to be
Qualified Bidders. If [IndyMac, Inc.] is then the Servicer, the solicitation of
bids shall be conditioned upon its continuing as servicer of the Contracts on
terms and conditions substantially similar to those set forth in this Agreement.
The Trustee shall provide the Servicer with [__] days written notice prior to
any action pursuant to this Section 11.02.
(b) If the Trustee receives bids from at least [___] Qualified Bidders and
the net proceeds of the highest bid are equal to or greater than the Termination
Price, the Trustee shall promptly advise the Servicer of the highest bid and the
terms of purchase, and the Servicer shall have [___] Business Days, at its
option, to match the terms of such bid. The Trustee shall thereafter sell the
Contracts and other property of the Trust either (i) to the Servicer, if it
shall so elect, or (ii) to the highest bidder, and in either case the Trustee
shall distribute the net proceeds of such sale in redemption of the Certificates
pursuant to Section 6.01. Any such sale must also comply with the requirements
of Section 11.01(b) and the second to the last sentence of Section 11.01(a).
(c) Any costs incurred by the Trustee in connection with such sale
(including without limitation any legal opinions or consents required by Section
11.01(b)) shall be deducted from the bid price of the Contracts and other
property of the Trust in determining the net proceeds therefrom.
(d) If the Trustee does not obtain bids from at least [___] Qualified
Bidders, or does not receive a bid such that the net proceeds therefrom would at
least equal the Termination Price, it shall not sell the Contracts and other
property of the Trust, and shall thereafter have no obligation to attempt to
sell same.
(e) Each of the Depositor and the Servicer shall cooperate with and provide
necessary information to the Trustee in connection with any auction sale as
described herein.
ARTICLE TWELVE
MISCELLANEOUS PROVISIONS
Section 12.01. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be held
invalid for any reason whatsoever, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms and in no way shall affect the validity or enforceability of
the other covenants, agreements, provisions or terms of this Agreement or of the
Certificates or the rights of the Holders.
Section 12.02. Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, 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 expressly
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue of any provision 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
Certificates of a Class evidencing, as to such Class, Percentage Interests
aggre- gating not less than 25% 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 [__] 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
covenanted expressly 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 of any provision of this
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of such 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. 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 12.03. 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 Certi- ficateholders if
agreed to by Holders of Certificates of the specified Class or Classes
evidencing, as to each such Class, Percentage Interests aggregating [__]% 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
an 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 conclusive in favor of the
Trustee, the Servicer and the Depositor 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
Registrar.
(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
or the Servicer in reliance thereon, whether or not notation of such action is
made upon such security.
(f) The Trustee may require such additional proof of any matter referred to
in this Section as it shall deem necessary.
Section 12.04. 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 12.05. Amendment. This Agreement may be amended from time to time
by the parties hereto without consent of any Certificateholders, (i) to cure any
ambiguity or to correct or supplement any provisions herein which may be
inconsistent with any other provisions herein, (ii) to correct any defective
provision herein or to supplement any provision herein which may be inconsistent
with any other provision herein, (iii) to add to the duties or obligations of
the Depositor, the Seller or the Servicer, (iv) to add any other provisions with
respect to matters or questions arising hereunder or (v) to modify, alter, add
to or rescind any of the terms or provisions contained in this Agreement;
provided that with respect to any such amendment pursuant to clause (iv) or (v),
such amendment shall not, as evidenced by an Opinion of Counsel (which Opinion
of Counsel shall not be an expense of the Trustee or the Trust Fund), adversely
affect in any material respect the interests of any Certificateholder; provided
further that no such Opinion of Counsel shall be required if the Person
requesting the amendment obtains a letter from each Rating Agency stating that
the amendment would not result in the downgrading or withdrawal of the
respective ratings then assigned to the Certificates; it being understood and
agreed that any such letter in and of itself will not represent a determination
as to the materiality of any such amendment and will represent a determination
only as to the credit issues affecting any such rating.
This Agreement may also be amended from time to time by the parties hereto
without consent of the Certificateholders, to modify, eliminate or add to the
provisions of this Agreement to such extent as shall be necessary to (i)
maintain the qualification of the Trust Fund as REMICs under the Code, (ii)
avoid or minimize the risk of the imposition of any Tax on the REMIC pursuant to
the Code that would be a claim at any time prior to the final redemption of the
Certificates or (ii) comply with other provisions of the Code; provided that in
either such case, there shall have been delivered to the Trustee an Opinion of
Counsel (which Opinion of Counsel shall not be an expense of the Trust or the
Trustee) to the effect that such action is necessary or appropriate (i) to
maintain such qualification, (to) avoid any such Tax or minimize the risk of its
imposition or (iii) to comply with any such requirements of the Code, as the
case may be.
This Agreement may also be amended from time to time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of [more than
50%] of the Percentage Interests of each Class of Certificates affected thereby
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments required to be distributed on any Certificate without the consent
of the Holder of such Certificate, (ii) adversely affect in any material respect
the interests of the Holders of any Class of Certificates in a manner other than
as described in (i), without the consent of the Holders of Certificates of such
Class evidencing, as to such Class, Percentage Interests aggregating 66%, or
(iii) reduce the aforesaid percentages of Certificates the Holders of which are
required to consent to any such amendment, without the consent of the Holders of
all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee shall
not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel, which opinion shall not be an expense of the
Trustee or the Trust Fund, to the effect that such amendment will not cause the
imposition of any tax on any REMIC or the Certificateholders or cause any REMIC
to fail to qualify as a REMIC at any time that any Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section 12.05 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be an
expense of the Trustee or the Trust Fund), satisfactory to the Trustee that (i)
such amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does not adversely affect in any material respect
the interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 12.05.
Section 12.06. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Contracts are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Servicer at its expense with the consent
of the Trustee accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders or is necessary for the administration or servicing of the
Contracts.
Section 12.07. Certificates Nonassessable and Fully Paid. The interests
represented by the Certificates shall be nonassessable for any losses or
expenses of the Trust or for any reason whatsoever, and upon authentication of a
Certificate by the Trustee or its Authenti- cating Agent, such Certificate shall
be deemed fully paid.
Section 12.08. No Petition. Each of the Seller, the Servicer and the
Trustee covenants and agrees that prior to the date which is [_________] after
the date upon which the last Class of Certificates has been paid in full, it
will not institute against, or join any other Person in instituting against the
Depositor any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceedings under any federal or state bankruptcy or similar
law. This Section shall survive termination of this Agreement or the termination
of the Servicer or the Trustee, as the case may be, under this Agreement.
Section 12.09. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Section 12.10. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at, or telecopied (with transmission confirmed by telephone) to, or
mailed by first class or registered mail, postage prepaid, to in the case of
(i) the Depositor, [_________________], [______________], Attention:
[____________]; (ii) the Servicer, [IndyMac, Inc., 000 X. Xxxx Xxxxxx, Xxxxxxxx,
XX 00000, Attention: General Counsel]; (iii) the Trustee, [________________]
Attention: [____________]; (iv) [Rating Agency], [__________], Attention:
[___________]; (v) [Rating Agency], [___________], Attention:
[____________________]; or (vi) in any such case at such other address specified
in writing to each other entity listed in this Section.
Section 12.11. Merger and Integration of Documents. 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 12.12. Headings. The headings herein and Table of Contents are for
purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
Section 12.13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
INDYMAC ABS, INC., as Depositor
By:____________________________________
Name:
Title:
[INDYMAC, INC.], as Seller and Servicer
By:____________________________________
Name:
Title:
[_____________________________], as Trustee
By:____________________________________
Name:
Title:
State of New York )
) ss.:
County of New York )
On the ____ day of __________, 199_ before me, a notary public in and for
said State, personally appeared __________, known to me to be __________ of
[_______________], one of the corporations that executed the within instrument,
and also known to me to be the person who executed it on behalf of said
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
___________________________________
Notary Public
[Notarial Seal]
State of __________ )
) ss.:
County of __________ )
On the ____ day of __________, 199_ before me, a notary public in and for
said State, personally appeared __________, known to me to be a __________ of
[IndyMac, Inc.], one of the corporations that executed the within instrument,
and also known to me to be the person who executed it on behalf of said
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
___________________________
Notary Public
[Notarial Seal]
State of New York )
) ss.:
County of New York )
On the ____ day of __________, 199_ before me, a notary public in and for
said State, personally appeared _________________, known to me to be a Trust
Officer of [_________________], a national banking association that executed the
within instrument, and also known to be the person who executed it on behalf of
said national association, and acknowledged to me that such corporation executed
the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_______________________________
Notary Public
[Notarial Seal]
EXHIBIT A
CONTRACT SCHEDULE
EXHIBIT B
FORM OF FACE 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. THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSE OF APPLYING
THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS ______________. THE INITIAL
PER ANNUM RATE OF INTEREST ON THIS CERTIFICATE IS ___%. ASSUMING THAT PRINCIPAL
PAYMENTS ARE MADE ON THE CONTRACTS UNDERLYING THE CERTIFICATES AT A CONSTANT
ANNUAL PREPAYMENT RATE OF __% OF THE PREPAYMENT MODEL, THIS CERTIFICATE HAS BEEN
ISSUED WITH NO MORE THAN $_________ OF OID PER $1,000 OF INITIAL PRINCIPAL
AMOUNT, THE YIELD TO MATURITY IS ___% AND THE AMOUNT OF OID ATTRIBUTABLE TO THE
INITIAL SHORT ACCRUAL PERIOD IS NO MORE THAN $_______ PER $1,000 OF INITIAL
PRINCIPAL AMOUNT, ASSUMING THE YIELD IS ACCRUED ON A DAILY BASIS AND THE COUPON
IS ACCRUED ON A RATABLE BASIS DURING THE INITIAL PERIOD. NO REPRESENTATION IS
MADE AS TO THE RATE AT WHICH PRINCIPAL PAYMENTS WILL BE MADE ON THE CONTRACTS.]
Number ___ [__]-[1][2][3][4][5][6]
Date of Pooling and Servicing Agreement Original Denomination:
and Cut-off Date: [______, 199_] $____________________
Class A Pass-Through Rate: ____%, Class A Initial Certificate Principal
computed on the basis of a 360-day year Balance:
of twelve 30-day months. $____________________
Final Distribution Date: [______, __]
First Distribution Date: [______, 199_]
CUSIP ________________
[INDYMAC, INC.] MANUFACTURED HOUSING CONTRACT
PASS-THROUGH CERTIFICATE,
[SERIES 199_-_, CLASS A [-1][-2][-3][-4][-5][-6]
evidencing a percentage interest in any distributions allocable
to the Class A Certificates with respect to a pool of fixed rate
conventional manufactured housing installment sales contracts and
installment loans sold by
[_____________________________________________________],
which manufactured housing installment sales contracts and
installment loans either were originated or acquired by and are
initially serviced by [IndyMac, Inc.] (the "Seller" and the
"Servicer").
This Certificate does not represent an obligation of or interest in
[_____________________________], the Seller, the Servicer, the Trustee referred
to below or any of their respective affiliates.
Neither this Certificate nor the underlying manufactured housing
installment sales contracts and installment loans are guaranteed or insured by
[______________________________], the Seller, the Servicer, the Trustee, any of
their respective affiliates or by any governmental agency or instrumentality.
THE PORTION OF THE CLASS A INITIAL CERTIFICATE PRINCIPAL BALANCE EVIDENCED
BY THIS CERTIFICATE (THE "CERTIFICATE BALANCE") WILL BE REDUCED BY DISTRIBUTIONS
ON THIS CERTIFICATE THAT ARE ALLOCABLE TO PRINCIPAL. ACCORDINGLY, FOLLOWING THE
INITIAL ISSUANCE OF THIS CERTIFICATE, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN ABOVE. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE.
This certifies that ___________________ is the registered owner of an
undivided interest in certain monthly distributions with respect to a pool (the
"Contract Pool") of conventional manufactured housing installment sales
contracts and installment loan agreements (collectively, the "Contracts") sold,
together with certain other property (collectively, the "Trust Fund"), by
IndyMac, ABS, Inc. (the "Depositor"). The Contracts either were originated or
acquired by and are serviced by [IndyMac, Inc.] (the "Seller" and the
"Servicer") and are secured by Manufactured Homes. The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the date specified
above (the "Agreement"), among the Depositor, the Seller, the Servicer and
[___________], as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. Capitalized terms used herein that
are not otherwise defined shall have the meanings ascribed thereto in the
Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as [IndyMac, Inc.] Manufactured Housing Contract Pass-Through
Certificates, Series 199[_-_] (the "Certificates") and is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
On each Distribution Date, to the extent described in the Agreement, the
Trustee will cause to be distributed from funds in the Certificate Account to
each Class A Certificateholder an amount equal to the product of the Percentage
Interest evidenced by such Class A Certificateholder's Certificate and the Class
A-__ Distribution Amount to be distributed to such Class of Class A
Certificates.
Distributions on this Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register or by wire transfer to Holders of Class A Certificates
with original denominations aggregating at least $[____________] who have given
the Trustee written instructions at least five Business Days prior to the
related Record Date. Notwithstanding the foregoing, the final distribution on
this Certificate will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Trustee for that purpose and specified
in such notice of final distribution.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRE- SENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
Reference is hereby made to the further provisions of this Certificate set
forth hereafter, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
[____________________]
By:______________________________
Authorized Officer
[Form of Certificate of Authentication]
This is one of the Certificates referred to in the within-mentioned
Agreement.
By:_______________________ By: [___________________]
Authenticating Agent as Trustee
or
___________________________ _________________________
Authorized Signatory Authorized Signatory
EXHIBIT C
FORM OF FACE OF CLASS [__] 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. THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSE OF APPLYING
THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS ____________. THE INITIAL PER
ANNUM RATE OF INTEREST ON THIS CERTIFICATE IS ___%. ASSUMING THAT PRINCIPAL
PAYMENTS ARE MADE ON THE CONTRACTS UNDERLYING THE CER- TIFICATES AT A CONSTANT
ANNUAL PREPAYMENT RATE OF __% OF THE PREPAYMENT MODEL, THIS CERTIFICATE HAS BEEN
ISSUED WITH NO MORE THAN $_________ OF OID PER $1,000 OF INITIAL PRINCIPAL
AMOUNT, THE YIELD TO MATURITY IS ___% AND THE AMOUNT OF OID ATTRIBUTABLE TO THE
INITIAL SHORT ACCRUAL PERIOD IS NO MORE THAN $_______ PER $1,000 OF INITIAL
PRINCIPAL AMOUNT, ASSUMING THE YIELD IS ACCRUED ON A DAILY BASIS AND THE COUPON
IS ACCRUED ON A RATABLE BASIS DURING THE INITIAL PERIOD. NO REPRESENTATION IS
MADE AS TO THE RATE AT WHICH PRINCIPAL PAYMENTS WILL BE MADE ON THE CONTRACTS.]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS [__] CERTIFICATES [AND THE CLASS [_-1] CERTIFICATES] TO
THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
[FOR CLASS [_-2] CERTIFICATES: THIS CERTIFICATE HAS NOT BEEN AND WILL NOT
BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED
PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH
ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND
IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE FOUR OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.]
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANS- FERRED
UNLESS THE TRANSFEREE DELIVERS A REPRESENTATION LETTER TO THE TRUSTEE TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE, OR, IF THE PURCHASER IS AN INSURANCE COMPANY, THAT
THE PURCHASER IS AN INSURANCE COMPANY WHICH IS PURCHASING SUCH CERTI- FICATES
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 PTCE 95-60 OR DELIVERS TO THE TRUSTEE AN OPINION OF COUNSEL IN ACCOR-
DANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING
ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE
TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE
WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Number ___ [___________] Class [_]-[1][2]
Date of Pooling and Servicing Agreement Original Denomination:
and Cut-off Date: $____________________
Class [__]-[1][2] Pass-Through Rate:lesser Class [__]-[1][2] Initial Certificate
of ____%, computed on the basis of a 360- Principal Balance: $_________________
day year, and the Weighted Average Net
Contract Rate
Final Distribution Date:
First Distribution Date: CUSIP ________________
[INDYMAC, INC.] MANUFACTURED HOUSING CONTRACT
PASS-THROUGH CERTIFICATE,
SERIES 199[_-_], CLASS [__]-[1][2]
evidencing a percentage interest in any distributions
allocable to the Class [__] Certificates with respect to a
pool of fixed rate conventional manufactured housing
installment sales contracts and installment loans formed and
sold by
[_________________________________]
which manufactured housing installment sales contracts and installment loans
either were originated or acquired by and are initially serviced by [IndyMac,
Inc.] (the "Seller" and the "Servicer").
This Certificate does not represent an obligation of or interest in
[IndyMac ABS, Inc., the Seller, the Servicer, the Trustee referred to below or
any of their respective affiliates.
Neither this Certificate nor the underlying manufactured housing contracts
and loans are guaranteed or insured by [the Depositor, the Seller, the Servicer,
the Trustee], any of their respective affiliates or by any governmental agency
or instrumentality.
THE PORTION OF THE CLASS [__]-[1][2] INITIAL CERTIFICATE PRINCIPAL BALANCE
EVIDENCED BY THIS CERTIFICATE (THE "CERTIFICATE BALANCE") WILL BE REDUCED BY
DISTRIBUTIONS ON THIS CERTIFICATE THAT ARE ALLOCABLE TO PRINCIPAL. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THIS CERTIFICATE, THE CERTIFICATE BALANCE OF
THIS CERTIFICATE WILL BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN ABOVE.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE
BY INQUIRY OF THE TRUSTEE.
This certifies that ___________________ is the registered owner of an
undivided interest in certain monthly distributions with respect to a pool (the
"Contract Pool") of conventional manufactured housing installment sales
contracts and installment loan agreements (collectively, the "Contracts") formed
and sold, together with certain other property (collectively, the "Trust Fund"),
by IndyMac ABS, Inc. (the "Depositor"). The Contracts either were originated or
acquired by and are serviced by [IndyMac, Inc.] (the "Seller" and the
"Servicer") and are secured by Manufactured Homes. The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the date specified
above (the "Agreement"), among the Depositor, the Seller, the Servicer and
[________________], as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed thereto
in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as [IndyMac, Inc.] Manufactured Housing Contract Pass-Through
Certificates, Series 199[_-_] (the "Certificates") and is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
On each Distribution Date, to the extent described in the Agreement, the
Trustee will cause to be distributed from funds in the Certificate Account, to
each Class [__] Certificate- holder an amount equal to the product of the
Percentage Interest evidenced by such Class [__] Certificateholder's Certificate
and the Class [__]-[1][2] Distribution Amount. Payments in respect of the Class
[__] Certificates are subordinated to payments in respect of the Class A
Certificates and the Class [__] Certificates and payments in respect of the
Class [__-2] Certificates are subordinated to payments in respect of the Class
[__-1] Certificates, in each case to the extent specified in the Agreement.
Distributions on this Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register or by wire transfer to Holders of Class [__]
Certificates with original denominations aggregating at least $[_________] who
have given the Trustee written instructions at least five Business Days prior to
the related Record Date. Notwithstanding the foregoing, the final distribution
on this Certificate will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trustee for that purpose
and specified in such notice of final distribution.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
Reference is hereby made to the further provisions of this Certificate set
forth hereafter, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [___________________________]
By:______________________________
Authorized Officer
[Form of Certificate of Authentication]
This is one of the Certificates referred to in the within-mentioned Agreement.
By:___________________________ By: [____________________],
Authenticating Agent as Trustee
or
___________________________ ___________________________
Authorized Signatory Authorized Signatory
EXHIBIT D
FORM OF REVERSE OF CERTIFICATES
As provided in the Agreement, deductions and withdrawals from the
Collection Account will be made from time to time for purposes other than
distributions to Certificate- holders, such purposes including payment of the
Monthly Servicing Fee, reimbursement to the Servicer for certain expenses
incurred by it and reimbursement to the Servicer for previous Advances with
respect to certain delinquent payments [of interest] on the Contracts.
The Trustee will cause to be kept at its Corporate Trust Office in New
York, New York, or at the office of its designated agent, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee maintained for such purpose,
the Trustee will, subject to the limitations set forth in the Agreement,
authenticate and deliver, in the name of the designated transferee or
transferees, a Certificate dated the date of authentication by the Trustee.
No service charge will be made to the Holder for any transfer or exchange
of the Certificate, but the Trustee 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 the Certificate. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Servicer and the
Trustee may treat the person in whose name any Certificate is registered as the
owner of such Certificate and the Percentage Interest in the Trust Fund
evidenced thereby for the purpose of receiving distributions pursuant to the
Agreement and for all other purposes whatsoever, and neither the Depositor, the
Servicer nor the Trustee will be affected by notice to the contrary.
The Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee, without the consent of any of the Certificateholders,
(i) to cure any ambiguity or to correct or supplement any provisions therein
which may be inconsistent with any other provisions therein, (ii) to add to the
duties or obligations of the Servicer under the Agreement, (iii) to obtain a
rating by a nationally recognized rating agency or to maintain or improve the
rating of any Class of Certificates then given by a rating agency (it being
understood that none of the Trustee, the Depositor, the Seller or the Servicer
is obligated to obtain, maintain or improve any rating of any Class of
Certificates after the Closing Date), (iv) to amend certain tests or definitions
or (v) to make any other provisions with respect to matters or questions arising
under the Agreement which are not materially inconsistent with the provisions of
the Agreement, including without limitation, provisions relating to the issuance
of definitive Certificates to Certificate Owners; provided, however, with
respect to clause (v) that any such action shall not, as evidenced by an Opinion
of Counsel, adversely affect in any material respect the interests of any
Certificateholder (including, without limitation, the maintenance of the status
of the Trust Fund as REMICs under the Code) and provided further that, in the
case of clause (iv), any such action may be taken only after the Trustee has
received from each Rating Agency a confirmation that such action will not result
in the reduction or withdrawal of any then-current rating of a Certificate. The
Agreement may also be amended from time to time by the Depositor, the Servicer
and the Trustee, without consent of the Certificateholders, to modify, eliminate
or add to the provisions of the Agreement to such extent as shall be necessary
to maintain the qualification of the Trust Fund as REMICs under the Code or
avoid, or minimize the risk of, the imposition of any Tax on the Trust Fund,
unless certain conditions in the Agreement have been complied with, or to
prevent the Trust Fund from entering into certain prohibited transactions under
the Code, provided that such amendment shall not adversely affect in any
material respect the interests of any Certificateholder and there shall have
been delivered to the Trustee an Opinion of Counsel to the effect that such
action is necessary or appropriate for such purposes.
The Agreement may also be amended from time to time by the Depositor, the
Seller, the Servicer and the Trustee with the consent of the Holders of
Certificates of each Class affected thereby evidencing, as to each such Class,
Percentage Interests aggregating not less than 662/3%, for the purpose of adding
any provisions to or changing in any manner or elimi- nating any of the
provisions of the Agreement or of modifying in any manner the rights of the
Holders of Certificates; provided, however, that no such amendment may (i)
reduce in any manner the amount of, or delay the timing of, distributions which
are required to be made on any Certificate without the consent of the Holder of
such Certificate, (ii) reduce the aforesaid percentage of Certificates of a
Class the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding or (iii) adversely affect the status of the Trust Fund as REMICs or
cause a Tax to be imposed on the Trust Fund under the REMIC provisions.
The respective obligations and responsibilities of the Depositor, the
Seller, the Servicer and the Trustee under the Agreement will terminate upon:
(i) the later of the final payment or other liquidation (or any advance with
respect thereto) of the last Contract or the disposition of all property
acquired upon repossession of any Contract and the remittance of all funds due
thereunder, (ii) at the option of the Depositor or the Servicer, on any
Distribution Date after the first Distribution Date on which the Pool Balance
was less than [__]% of the Cut-off Date Pool Balance, so long as the Depositor
or the Servicer, as the case may be, deposits in the Certificate Account the
repurchase price specified in the Agreement or (iii) upon the sale of the
Contracts and other property of the Trust Fund by the Trustee if neither the
Depositor nor the Servicer exercises the option in clause (ii) within [__] days
after the Distribution Date on which they are first entitled to do so, as
specified in the Agreement.
EXHIBIT E
FORM OF FACE OF CLASS [__] 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. THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSE OF APPLYING
THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS [___________]. THE INITIAL
PER ANNUM RATE OF INTEREST ON THIS CERTIFICATE IS ___%. ASSUMING THAT PRINCIPAL
PAYMENTS ARE MADE ON THE CONTRACTS UNDERLYING THE CERTIFICATES AT A CONSTANT
ANNUAL PREPAYMENT RATE OF __% OF THE PREPAYMENT MODEL, THIS CERTIFICATE HAS BEEN
ISSUED WITH NO MORE THAN $_________ OF OID PER $1,000 OF INITIAL PRINCIPAL
AMOUNT, THE YIELD TO MATURITY IS ___% AND THE AMOUNT OF OID ATTRIBUTABLE TO THE
INITIAL SHORT ACCRUAL PERIOD IS NO MORE THAN $_______ PER $1,000 OF INITIAL
PRINCIPAL AMOUNT, ASSUMING THE YIELD IS ACCRUED ON A DAILY BASIS AND THE COUPON
IS ACCRUED RATABLY DURING THE INITIAL PERIOD. NO REPRESENTATION IS MADE AS TO
THE RATE AT WHICH PRINCIPAL PAYMENTS WILL BE MADE ON THE CONTRACTS.]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANS- FERRED
UNLESS THE TRANSFEREE DELIVERS A REPRESENTATION LETTER TO THE TRUSTEE TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE, OR, IF THE PURCHASER IS AN INSURANCE COMPANY, THAT
THE PURCHASER IS AN INSURANCE COMPANY WHICH IS PURCHASING SUCH CERTI- FICATES
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 PTCE 95-60 OR DELIVERS TO THE TRUSTEE AN OPINION OF COUNSEL IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING
ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE
TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE
WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Number ___ Class [__]
Date of Pooling and Servicing Agreement Original Denomination:
and Cut-off Date: [__________] $_______________________
Class [__] Pass-Through Rate: lesser of Class [__] Initial Certificate
____%, computed on the basis of a 360-day Principal Balance:
year of twelve 30 day months, or the
Weighted Average Net Contract Rate
Final Distribution Date: [_________]
First Distribution Date: [_________] CUSIP ________________
[INDYMAC, INC.] MANUFACTURED HOUSING CONTRACT
PASS-THROUGH CERTIFICATE,
SERIES 199[_-_], CLASS [__]
evidencing a percentage interest in any distribu- tions allocable
to the Class [__] Certificates with respect to a pool of fixed
rate conventional manu- factured housing installment sales
contracts and installment loans formed and sold by
[______________________________]
which manufactured housing installment sales contracts and installment loans
either were originated or acquired by and are initially serviced by [IndyMac,
Inc.] (the "Seller" and the "Servicer").
This Certificate does not represent an obligation of or interest in the
Depositor, the Seller, the Servicer, the Trustee referred to below or any of
their respective affiliates.
Neither this Certificate nor the underlying manufactured housing contracts
and loans are guaranteed or insured by the Depositor, the Seller, the Servicer,
the Trustee, any of their respective affiliates or by any governmental agency or
instrumentality.
THE PORTION OF THE CLASS [__] INITIAL CERTIFICATE PRINCIPAL BALANCE
EVIDENCED BY THIS CERTIFICATE (THE "CERTIFICATE BALANCE") WILL BE REDUCED BY
DISTRIBUTIONS ON THIS CERTIFICATE THAT ARE ALLOCABLE TO PRINCIPAL. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THIS CERTIFICATE, THE CERTIFICATE BALANCE OF
THIS CERTIFICATE WILL BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN ABOVE.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE
BY INQUIRY OF THE TRUSTEE.
This certifies that ___________________ is the registered owner of an
undivided interest in certain monthly distributions with respect to a pool (the
"Contract Pool") of conventional manufactured housing installment sales
contracts and installment loan agreements (collectively, the "Contracts") formed
and sold, together with certain other property (collectively, the "Trust Fund"),
by IndyMac ABS, Inc. (the "Depositor"). The Contracts either were originated or
acquired by and are serviced by [IndyMac, Inc]. (the "Seller" and the
"Servicer") and are secured by Manufactured Homes. The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the date specified
above (the "Agreement"), among the Depositor, the Seller, the Servicer and
[____________], as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth here- after. Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed thereto
in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as [IndyMac, Inc.] Manufactured Housing Contract Pass-Through
Certificates, Series 199[_-_] (the "Certificates") and is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
On each Distribution Date, to the extent described in the Agreement, the
Trustee will cause to be distributed from funds in the Certificate Account to
each Class [__] Certificate- holder an amount equal to the product of the
Percentage Interest evidenced by such Class [__] Certificateholder's Certificate
and the Class [__] Distribution Amount. Payments in respect of the Class [__]
Certificates are subordinated to payments in respect of the Class A Certificates
to the extent specified in the Agreement.
Distributions on this Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register or by wire transfer to Holders of Class [__]
Certificates with original denominations aggregating at least $[___________] who
have given the Trustee written instructions at least five Business Days prior to
the related Record Date. Notwithstanding the foregoing, the final distribution
on this Certificate will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trustee for that purpose
and specified in such notice of final distribution.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRE- SENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
Reference is hereby made to the further provisions of this Certificate set
forth hereafter, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [____________________]
By:_____________________________
Authorized Officer
[Form of Certificate of Authentication]
This is one of the Certificates referred to in the within-mentioned Agreement.
By:__________________________ By: [___________________],
Authenticating Agent as Trustee
or
_____________________________ _______________________________
Authorized Signatory Authorized Signatory
EXHIBIT F
FORM OF FACE OF CLASS [__] CERTIFICATE
[THIS CERTIFICATE REPRESENTS THE "TAX MATTERS PERSON RESIDUAL INTEREST"
ISSUED UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW AND MAY NOT
BE TRANSFERRED TO ANY PERSON EXCEPT IN CONNECTION WITH THE ASSUMPTION BY THE
TRANSFEREE OF THE DUTIES OF THE SERVICER UNDER SUCH AGREEMENT.]
THE SMALL BUSINESS JOB PROTECTION ACT OF 1996, AS PART OF THE REPEAL OF THE
BAD DEBT RESERVE METHOD FOR THRIFT INSTITUTIONS, REPEALED THE APPLICATION OF
CODE SECTION 593(d) TO ANY TAXABLE YEAR BEGINNING AFTER DECEMBER 31, 1995.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
THE BENEFICIAL OWNERSHIP OF TWO "RESIDUAL INTERESTS" ISSUED BY TWO SEPARATE
"REAL ESTATE MORTGAGE INVESTMENT CONDUITS" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE. THIS
CERTIFICATE MAY ONLY BE TRANSFERRED TO A PERMITTED TRANSFEREE (AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN); ANY SUCH TRANSFER MUST ALSO
SATISFY THE OTHER REQUIREMENTS OF SECTIONS 4.02 AND 4.09 OF SUCH POOLING AND
SERVICING AGREEMENT.
Number ___ Class [__]
Date of Pooling and Servicing Agreement Original Denomination: $[___]
and Cut-off Date: [____________]
Class [__] Pass-Through Rate: [___]%, Class [__] Initial Certificate
computed on the basis of a 360-day year Principal Balance: $[___]
of twelve 30-day months.
Final Distribution Date:[___________]
First Distribution Date: [_______]
[INDYMAC, INC.] MANUFACTURED HOUSING CONTRACT
PASS-THROUGH CERTIFICATE,
SERIES 199[_-_], CLASS [__]
evidencing a percentage interest in any distribu- tions allocable
to the Class [__] Certificates with respect to a pool of fixed
rate conventional manufactured housing installment sales
contracts and installment loans formed and sold by
[________________________________]
which manufactured housing installment sales contracts and installment loans
either were originated or acquired by and are initially serviced by [IndyMac,
Inc.] (the "Seller" and the "Servicer").
This Certificate does not represent an obligation of or interest in
[________________], the Seller, the Servicer or the Trustee referred to below or
any of their affiliates.
Neither this Certificate nor the underlying manufactured housing contracts
are guaranteed or insured by [_______________________], the Seller, the
Servicer, the Trustee, any of their respective affiliates or by any governmental
agency or instrumentality.
This certifies that ______________________________________ is the
registered owner of an undivided interest in certain monthly distributions with
respect to a pool (the "Contract Pool") of conventional manufactured housing
installment sales contracts and installment loan agreements (the "Contracts")
formed and sold, together with certain other property (collectively, the "Trust
Fund"), by IndyMac ABS, Inc. (the "Depositor"). The Contracts either were
originated or acquired by and are serviced by [IndyMac, Inc.] and are secured by
Manufactured Homes. The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the date specified above (the "Agreement"),
among the Depositor, the Seller, the Servicer and [__________________], as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereafter. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as [IndyMac, Inc.] Manufactured Housing Contract Pass-Through
Certificates, Series 199[_-_] (the "Certificates") and is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Distributions on this Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register. Notwithstanding the foregoing, the final distribution
on this Certificate will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trustee for that purpose
and specified in such notice of final distribution.
The holder of this Class [__] Certificate, by acceptance hereof, agrees
that, in accordance with the requirements of Section 860D(b)(1) of the Code, the
federal tax return of the Trust for its first taxable year shall provide that
the Trust elects to be treated as "real estate mortgage investment conduits"
(the "REMICs") under the Code for such taxable year and all subsequent taxable
years. The Class A, Class [__] and Class [__] Certificates shall be "regular
interests" in the REMICs and the [__] Certificates shall be the "residual
interests" in the REMICs. In addition, the holder of this Class [__]
Certificate, by acceptance hereof, (i) 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 Trust, (ii)
agrees to cooperate with the Servicer in connection with examinations of the
Trust's affairs by tax authorities, including administrative and judicial
proceedings and (iii) makes the additional agreements, designations and
appointments, and undertakes the responsibilities, set forth in Section 4.09 of
the Agreement.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
Dated: [_____________________________]
By:____________________________
Authorized Officer
[Form of Certificate of Authentication]
This is one of the Certificates referred to in the within-mentioned Agreement.
By:___________________________ By: [________________________],
Authenticating Agent as Trustee
or
______________________________ _______________________________
Authorized Signatory Authorized Signatory
EXHIBIT G
FORM OF FACE OF CLASS [__] CERTIFICATE
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE. THE FOLLOWING INFORMATION IS PROVIDED
SOLELY FOR THE PURPOSE OF APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE
DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE
IS [________]. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS CERTIFICATE IS
INTEREST ACCRUING ON INTERESTS ISSUED BY THE POOLING REMIC IN EXCESS OF THE
RATES STATED IN THE POOLING AND SERVICING AGREEMENT. ASSUMING THAT PRINCIPAL
PAYMENTS ARE MADE ON THE CONTRACTS UNDERLYING THE CERTIFICATES AT A CONSTANT
ANNUAL PREPAYMENT RATE OF __% OF THE PREPAYMENT MODEL, THIS CERTIFICATE HAS BEEN
ISSUED WITH NO MORE THAN $_________ OF OID PER $100,000 OF INITIAL NOTIONAL
PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS ___% AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL SHORT ACCRUAL PERIOD IS NO MORE THAN $_______ PER
$100,000 OF INITIAL NOTIONAL PRINCIPAL AMOUNT, ASSUMING THE YIELD IS ACCRUED ON
A DAILY BASIS DURING THE INITIAL PERIOD. NO REPRESENTATION IS MADE AS TO THE
RATE AT WHICH PRINCIPAL PAYMENTS WILL BE MADE ON THE CONTRACTS.]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS [__] CERTIFICATES AND THE CLASS [__] CERTIFICATES TO THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANS- FERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTIONS 4.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE SMALL BUSINESS JOB PROTECTION ACT OF 1996, AS PART OF THE REPEAL OF THE
BAD DEBT RESERVE METHOD FOR THRIFT INSTITUTIONS, REPEALED THE APPLICATION OF
CODE SECTION 593(d) TO ANY TAXABLE YEAR BEGINNING AFTER DECEMBER 31, 1995.
Number ___ Class [__]
Date of Pooling and Servicing Agreement Percentage Interest: [___]%
and Cut-off Date: [_____________]
Final Distribution Date:[___________]
First Distribution Date: [_____________]
[INDYMAC, INC.] MANUFACTURED HOUSING CONTRACT
PASS-THROUGH CERTIFICATE,
SERIES 199[_-_], CLASS [__]
evidencing a percentage interest in any distributions allocable
to the Class [__] Certificates with respect to a pool of fixed
rate conventional manufactured housing installment sales
contracts and installment loans formed and sold by
[___________________________].,
which manufactured housing installment sales contracts and installment loans
either were originated or acquired by and are initially serviced by [IndyMac,
Inc.] (the "Seller" and the "Servicer").
This Certificate does not represent an obligation of or interest in
[____________________], the Seller, the Servicer or the Trustee referred to
below or any of their affiliates.
Neither this Certificate nor the underlying manufactured housing contracts
are guaranteed or insured by [_________________________], the Seller, the
Servicer, the Trustee, any of their respective affiliates or by any governmental
agency or instrumentality.
This certifies that ______________________________ is the registered owner
of an undivided interest in certain monthly distributions with respect to a pool
(the "Contract Pool") of conventional manufactured housing installment sales
contracts and installment loan agreements (the "Contracts") formed and sold,
together with certain other property (collectively, the "Trust Fund"), by
IndyMac ABS, Inc. (the "Depositor"). The Contracts either were originated or
acquired by and are serviced by [IndyMac, Inc.] and are secured by Manufactured
Homes. The Trust Fund was created pursuant to a Pooling and Servicing Agreement
dated as of the date specified above (the "Agreement"), among the Depositor, the
Seller, the Servicer and [____________________], as trustee (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth hereafter.
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as [IndyMac, Inc.] Manufactured Housing Contract Pass-Through
Certificates, Series 199[_-_] (the "Certificates") and is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
On each Distribution Date, to the extent described in the Agreement, the
Trustee will cause to be distributed from funds in the Certificate Account to
each Class [__] Certificateholder an amount equal to the product of the
Percentage Interest evidenced by such Class [__] Certificateholder's Certificate
and the Class [__] Distribution Amount. Payments in respect of the Class [__]
Certificates are subordinated to payments in respect of the [__], Class A and
Class [__] Certificates to the extent specified in the Agreement.
Distributions on this Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register. Notwithstanding the foregoing, the final distribution
on this Certificate will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trustee for that purpose
and specified in such notice of final distribution.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [__________________________]
By:__________________________
Authorized Officer
[Form of Certificate of Authentication]
This is one of the Certificates referred to in the within-mentioned Agreement.
By:____________________________ By: [________________________],
Authenticating Agent as Trustee
or
______________________________ _______________________________
Authorized Signatory Authorized Signatory
EXHIBIT H
[RESERVED]
EXHIBIT I
FORM OF CERTIFICATE ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(PLEASE INSERT SOCIAL SECURITY* OR TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE)
(*This information, which is voluntary, is being requested to ensure that the
assignee will not be subject to backup withholding under Section 3406 of the
Code.)
_____________________________________________________________________________
(Please Print or Typewrite Name and Address of Assignee)
______________________________________________________________________________
the within Certificate, and all rights thereunder, and hereby does irrevocably
constitute and appoint
_______________________________________________________ Attorney to transfer the
within Certificate on the books kept for the registration thereof, with full
power of substitution in the premises.
Dated:
(Signature guaranty) ____________________________________
NOTICE: The signature to this assign-
ment must correspond with the name as
it appears upon the face of the
within Certificate in every
particular, without alteration or
enlargement or any change whatever.
EXHIBIT J
CERTIFICATE OF SERVICING OFFICER
The undersigned certifies that he is a _______ of [IndyMac, Inc.] (the
"Seller" and the "Servicer") and that as such he is duly authorized to execute
and deliver this certificate on behalf of the Servicer pursuant to Section 7.02
of the Pooling and Servicing Agreement, dated as of [____________] (the
"Agreement"), among the IndyMac ABS, Inc., as depositor, the Seller, the
Servicer and [_____________], as trustee, 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 7.01 and 7.02 of the Agreement; and
2. As of the date hereof, no Event of Default or event that with
notice or lapse of time or both would become an Event of Default has
occurred.
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Agreement.
IN WITNESS WHEREOF, I have affixed hereunto my signature this [___] day of
[_____], 199[_].
[INDYMAC, INC.]
By:_________________________________
Name:
Title:
EXHIBIT K
TRANSFER AFFIDAVIT
State of _______________ )
) ss:
County _________________ )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _____________________, a corporation
duly organized and existing under the laws of the State of __________, the
proposed transferee (the "Transferee") of the [IndyMac, Inc.] Manufactured
Housing Contract Pass-Through Certificates, Series 199[_-_], Class [__] (the
"Class [___] Certificates") issued pursuant to the Pooling and Servicing
Agreement, dated as of [______________] (the "Agreement"), among IndyMac ABS,
Inc., as depositor, IndyMac, Inc., as seller and servicer, and [__________], as
trustee. Capitalized terms used, but not defined herein or in Exhibit 1 hereto,
shall have the meanings ascribed thereto 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 the Class [__]
Certificates either (i) for its own account or (ii) as nominee, trustee or agent
for another Person and has attached hereto an affidavit from such Person in
substantially the same form as this affidavit. The Transferee has no knowledge
that any such affidavit is false.
3. The Transferee has been advised and understands that (i) a tax shall be
imposed on Transfers of Class [__] Certificates to Persons that are not
Permitted Transferees; (ii) such tax is imposed on the transferor, or, if such
Transfer is through an agent (which includes a broker, nominee or middleman) for
a Person that is not a Permitted Transferee on the agent; 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 shall be
imposed on a "pass-through entity" holding Class [__] Certificates 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 no tax will be imposed for any period for which the
record holder furnishes to the pass-through entity an affidavit stating that the
record holder is a Permitted Transferee and the pass-through entity does not
have actual knowledge that such affidavit is false. (For this purpose, a
"pass-through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. Transferee has reviewed Section 4.09 of the Agreement and understands
the legal consequences of the acquisition of the Class [__] Certificates
including, without limitations, 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 Sections 4.02
and 4.09 of the Agreement. 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 the Class [__] Certificates 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 the Class [__]
Certificates or cause any Class [__] Certificates to be Transferred to any
Person that the Transferee knows is not a Permitted Transferee.
7. The Transferee's taxpayer identification number is
_______________________.
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 ______, 199___.
[Name of Transferee]
[Corporate Seal] By:_____________________________
Name:
Title:
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 _________, 199___.
________________________________
NOTARY PUBLIC
My commission expires the ___ day of
________, 19___.
EXHIBIT L
FORM OF INVESTMENT LETTER OF HOLDER OF CLASS [__][__] CERTIFICATES
1. The Purchaser is acquiring the Class [__][__] Certificates as principal
for its own account for the purpose of investment [neither the Underwriter nor
any of its Affiliates need represent that it is acquiring for purposes of
investment] and not with a view to or for sale in connection with any
distribution thereof, subject nevertheless to any requirement of law that the
disposition of the Purchaser's property shall at all times be and remain within
its control.
2. The Purchaser has knowledge and experience in financial and business
matters and is capable of evaluating the merits and risks of its investment in
the Class [__][__] Certificates and is able to bear the economic risk of such
investment. The Purchaser is an "accredited investor" within the meaning of Rule
501(a) under the rules and regulations of the Securities and Exchange Commission
under the Securities Act of 1933, as amended. The Purchaser has been given such
information concerning the Class [__][__] Certificates, the underlying Contracts
and the Servicer as it has requested.
3. The Purchaser will comply with all applicable federal and state
securities laws in connection with any subsequent resale by the Purchaser of the
Class [__][__] Certificates.
4. The Purchaser understands that the Class [__][__] Certificates has not
been and will not be registered under the Securities Act of 1933, as amended, or
any state securities laws and may be resold (which resale is not currently
contemplated) only if an exemption from registration is available, that neither
the Depositor, the Seller, the Servicer nor the Trustee is required to register
the Class [__][__] Certificates and that any transfer must comply with Sections
4.02 and 4.09 of the Pooling and Servicing Agreement. In connection with any
resale of the Class [__] Certificates, the Purchaser shall not make any general
solicitation or advertisement.
5. The Purchaser agrees that it will obtain from any purchaser of the Class
[__][__] Certificates from it the same representations, warranties and
agreements contained in paragraphs 1 through 5.
6. The Purchaser hereby directs the Trustee to register the Class [__][__]
Certificates acquired by the Purchaser in the name of its nominee as follows:
___________________________.
Very truly yours,
By:__________________________________
Name:
Title:
