Exhibit 4.2
STANDARD TERMS
TO
POOLING AND SERVICING AGREEMENT
_______________________________________________________
Oakwood Mortgage Investors, Inc.
Pass-Through Certificates
September 2001 Edition
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions................................................................... 1
ARTICLE II
THE ASSETS
Section 2.01. Assignment of Assets.......................................................... 27
Section 2.02. The Contracts................................................................. 27
Section 2.03. The Mortgage Loans............................................................ 30
Section 2.04. Representations and Warranties of the Trustee................................. 32
Section 2.05. Representations and Warranties as to Assets................................... 33
Section 2.06. Purchase or Substitution of Certain Assets.................................... 33
ARTICLE III
ADMINISTRATION OF TRUSTS AND SERVICING OF THE ASSETS
Section 3.01. The Servicer.................................................................. 38
Section 3.02. Maintenance of Records; Inspection of Asset Files............................. 39
Section 3.03. Collection of Payments on Assets; Servicing Delinquent Accounts............... 40
Section 3.04. Advances and Compensating Interest............................................ 40
Section 3.05. Servicing Account............................................................. 41
Section 3.06. Certificate Account........................................................... 42
Section 3.07. Withdrawals From Certificate Account; Remittance Amounts...................... 42
Section 3.08. Realization upon Defaulted Assets............................................. 43
Section 3.09. Title, Conservation, and Disposition of Repo Property and REO Property........ 45
Section 3.10. Full Prepayments and Liquidations; Trustee to Cooperate;
Release of Mortgage Files..................................................... 48
Section 3.11. Maintenance of Security Interests and Other Liens in Manufactured Homes....... 49
Section 3.12. Due-on-Sale Clauses and Assumption Agreements................................. 49
Section 3.13. Annual Accountants' Certificate; Annual Statement as to Compliance............ 50
Section 3.14. Servicing Fees................................................................ 51
Section 3.15. Late Charges; Prepayment Fees or Other Charges................................ 51
Section 3.16. Maintenance of Standard Hazard Insurance, Primary Mortgage Insurance,
and Errors and Omissions Coverage............................................. 52
ARTICLE IV
REMITTANCE AND REPORTING TO CERTIFICATEHOLDERS
Section 4.01. Remittance Reports............................................................ 54
Section 4.02. Distribution Account.......................................................... 56
Section 4.03. Allocation of Available Distribution Amount................................... 56
Section 4.04. Compliance with Withholding Requirements...................................... 57
(1)
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Section 4.05. Reports of Security Principal Balances to the Clearing Agency............. 57
Section 4.06. Preparation of Regulatory Reports......................................... 58
ARTICLE V
THE POOLING INTERESTS AND THE CERTIFICATES
Section 5.01. Pooling REMIC Interests................................................... 58
Section 5.02. The Certificates.......................................................... 59
Section 5.03. Book-Entry Certificates................................................... 59
Section 5.04. Registration of Transfer and Exchange of Certificates..................... 60
Section 5.05. Restrictions on Transfer.................................................. 61
Section 5.06. Accrual of Interest on the Certificates................................... 64
Section 5.07. Mutilated, Destroyed, Lost or Stolen Certificates......................... 64
Section 5.08. Persons Deemed Owners..................................................... 64
Section 5.09. Appointment of Paying Agent............................................... 64
ARTICLE VI
OMI AND THE SERVICER
Section 6.01. Liability of OMI and the Servicer......................................... 65
Section 6.02. OMI's Representations and Warranties...................................... 65
Section 6.03. Representations, Warranties and Covenants of the Servicer................. 66
Section 6.04. Corporate Existence....................................................... 68
Section 6.05. Limitation on Liability of OMI, the Servicer and Others................... 68
Section 6.06. Section 6.06. Servicer Resignation........................................ 69
Section 6.07. Assignment or Delegation of Duties by the Servicer and OMI................ 69
Section 6.08. OMI and Servicer May Own Certificates..................................... 69
Section 6.09. Protection of Trust Estate................................................ 69
Section 6.10. Performance of Obligations................................................ 70
ARTICLE VII
EVENT OF DEFAULT; TERMINATION OF SERVICING ARRANGEMENTS
Section 7.01. Events of Default......................................................... 70
Section 7.02. Trustee to Act; Appointment of Successor.................................. 72
Section 7.03. Notifications to Servicer and to Certificateholders....................... 74
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee......................................................... 74
Section 8.02. Certain Matters Affecting the Trustee..................................... 75
Section 8.03. Trustee Not Liable for Certificates or Assets............................. 77
Section 8.04. Trustee May Own Certificates.............................................. 77
Section 8.05. Trustee's Fees and Expenses............................................... 77
Section 8.06. Eligibility Requirements for Trustee...................................... 78
Section 8.07. Resignation and Removal of the Trustee.................................... 78
(2)
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Section 8.08. Successor Trustee........................................................... 79
Section 8.09. Merger or Consolidation of Trustee.......................................... 79
Section 8.10. Appointment of Co-Trustee or Separate Trustee............................... 80
Section 8.11. Appointment of Custodians................................................... 81
Section 8.12. Trustee May Enforce Claims Without Possession of Certificates............... 81
ARTICLE IX
TERMINATION
Section 9.01. Termination Upon Repurchase or Liquidation of All Contracts................. 81
Section 9.02. Additional Termination Requirements......................................... 83
ARTICLE X
REMIC TAX PROVISIONS
Section 10.01. REMIC Administration........................................................ 84
Section 10.02. Prohibited Activities....................................................... 85
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendments.................................................................. 87
Section 11.02 Recordation of Agreement; Counterparts...................................... 87
Section 11.03 Limitation on Rights of Certificateholders.................................. 88
Section 11.04 Notices..................................................................... 89
Section 11.05 Severability of Provisions.................................................. 89
Section 11.06 Sale of Contracts........................................................... 89
Section 11.07 Notice to Rating Agency..................................................... 90
(3)
TABLE OF EXHIBITS
Exhibit 1 Form of Servicer Custodial Certification
Exhibit 2-A Form of Initial Certification
Exhibit 2-B Form of Final Certification
Exhibit 3 Form of Recordation Report
Exhibit 4 Form of Request for Release
Exhibit 5 Form of Rule 144A Agreement
Exhibit 6 Form of Transferee Agreement
Exhibit 7 Form of Benefit Plan Affidavit
Exhibit 8 Form of Residual Transferee Agreement
Exhibit 9 Form of Power of Attorney
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RECITALS
Oakwood Mortgage Investors, Inc. ("OMI"), Oakwood Acceptance Corporation,
LLC ("OAC") and a banking association or corporation as trustee (the "Trustee")
have entered into a Pooling and Servicing Agreement that provides for the
issuance of manufactured housing contract and/or mortgage pass-through
securities (the "Certificates") that in the aggregate evidence the entire
interest in a pool consisting of retail installment sales contracts for units of
manufactured housing (the "Contracts") and/or mortgage loans secured by first
liens on one-to four-family residential real properties (the "Mortgage Loans,"
and, together with the Contracts, the "Assets") and other property owned by the
Trust (the "Trust") created by such Pooling and Servicing Agreement. These
Standard Terms are a part of, and are incorporated by reference into, such
Pooling and Servicing Agreement.
STANDARD PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations and warranties made in the Pooling and Servicing Agreement and
as hereinafter set forth, OMI, OAC and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.
Except as otherwise specified herein or in a Pooling and Servicing
Agreement or as the context may otherwise require, whenever used in these
Standard Terms, the following words and phrases shall have the meanings assigned
to them in this Article. Unless otherwise specified, all calculations described
herein shall be made on the basis of a 360-day year consisting of twelve 30-day
months.
"Accrual Date": With respect to any Series or Class of Certificates, the
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date upon which interest begins accruing on the Certificates of such Series or
Class, which shall be specified in the related Pooling and Servicing Agreement.
"Adjustable Rate Asset": An "adjustable rate" Contract or Mortgage Loan,
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the Asset Rate of which is subject to periodic adjustment in accordance with the
terms of the Contract or the related Mortgage Note.
"Advance": Any Servicing Advance or P&I Advance.
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"Affiliate": As to any specified Person, any other Person controlling or
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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" and "controlled" have
meanings correlative to the foregoing.
"Application for Relief": As defined in Section 4.06 hereof.
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"Asset": A Contract or Mortgage Loan.
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"Asset Documents": Collectively, Contract Documents and Mortgage Loan
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Documents.
"Asset File": With respect to any Contract or Mortgage Loan, the related
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Contract File or Trustee Mortgage Loan File, as applicable.
"Asset Rate": As to any Asset, the related Contract Rate, Pooled
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Certificate Rate or Mortgage Rate, as applicable.
"Asset Schedule": For any Series, the list or lists attached to the
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related Pooling and Servicing Agreement consisting of the related Contract
Schedule, if any, the Pooled Certificate Schedule, if any, and the related
Mortgage Loan Schedule, if any.
"Assignment": A document effecting the transfer of all the rights of a
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secured party under a Mortgage to a transferee, in recordable form for the
jurisdiction in which the related Mortgaged Property is located.
"Available Distribution Amount": For each Distribution Date for a Series of
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Certificates, the amount on deposit in the related Distribution Account at the
commencement of business on such Distribution Date, less the amounts
distributable from the Distribution Account in accordance with clauses (1)
through (5) of Section 4.03 hereof and the Interest Deficiency Amount (as
defined in the Pooling and Servicing Agreement) or portion thereof, if any, paid
from collections on the preceding Distribution Date.
"Beneficial Owner": With respect to a Book-Entry Certificate, the Person
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who is registered as owner of that Certificate in the books of the Clearing
Agency for that Certificate or in the books of a Person maintaining an account
with such Clearing Agency.
"Benefit Plan Affidavit": An affidavit substantially in the form of
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Exhibit 7 hereto.
"Benefit Plan Opinion": An Opinion of Counsel to the effect that a
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proposed transfer of a Certificate will not (a) cause any of the assets of the
Trust to be regarded as "plan assets" for purposes of the Plan Asset
Regulations, (b) give rise to any fiduciary duty under ERISA on the part of OMI,
the Servicer, the Trustee or the Trust's Tax Matters Person, if any, or (c) be
treated as, or result in, a "prohibited transaction" under section 406 or
section 407 of ERISA or under section 4975 of the Code. The cost of obtaining a
Benefit Plan Opinion shall not be borne by OMI, the Servicer or the Trustee.
"Board of Directors": The Board of Directors of OMI, OAC or any other
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Servicer or any committee of that Board duly authorized to act on behalf of that
Board with respect to any matters arising hereunder.
"Book-Entry Certificates": The Classes of Certificates of a Series, if
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any, classified as such in the related Pooling and Servicing Agreement.
"Business Day": Any day that is not a Saturday, Sunday, holiday or other
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day on which commercial banking institutions in the city and state in which the
Trustee's Corporate Trust Office is located are authorized or obligated by law
or executive order to be closed.
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"Certificate Account": An account established pursuant to and described in
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Section 3.06 hereof. The Certificate Account will be an asset of the Trust but
not an asset of any related REMIC. Solely for federal income tax purposes, the
Servicer will be the owner of the Certificate Account and, thus, any income
earned by the Certificate Account, or any amounts transferred by any related
REMIC to the Certificate Account, shall be treated as income earned by, or
amounts distributed to, the Servicer.
"Certificate Principal Balance": With respect to each Certificate or Class
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of Certificates, on any date of determination, the outstanding principal amount,
if any, of such Certificate(s) immediately prior to the most recently preceding
Distribution Date (or in the case of a date of determination on or before the
first Distribution Date, an amount equal to the initial principal amount of such
Certificate(s) as of the Closing Date) net of the amounts, if any, applied on
such preceding Distribution Date to reduce the principal amount of such
Certificate(s) in accordance with Section 4.03 hereof.
"Certificate Register" and "Certificate Registrar": The respective
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meanings specified for such terms in Section 5.04 hereof.
"Certificateholder" or "Holder": With respect to any Certificate, the
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Person in whose name such Certificate is registered in the Certificate Register.
"Certificates": The certificates authorized by, executed and delivered
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under, and issued pursuant to any Pooling and Servicing Agreement.
"Class": With respect to any Series, the classification of different types
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of the Certificates within such Series as set forth in the related Pooling and
Servicing Agreement.
"Clearing Agency": The Depository Trust Company, or any successor
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organization or any other organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended, and
the regulations of the Securities and Exchange Commission thereunder.
"Clearing Agency Participant": A broker, dealer, bank, other financial
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institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date": With respect to any Series, the date specified as the
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"Closing Date" in the related Pooling and Servicing Agreement.
"Code": The Internal Revenue Code of 1986, as amended.
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"Collection Period": With respect to each Distribution Date for a Series,
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with respect to the Contracts and Mortgage Loans, the period commencing on the
second day of the calendar month preceding the month in which such Distribution
Date occurs and ending at the close of business on the first day of the calendar
month in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission, as from time to time
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constituted, created under the Securities Exchange Act of 1934, as amended.
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"Compensating Interest": For any Remittance Date, the amount of all Due
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Date Interest Shortfalls for the preceding Collection Period to the extent such
Shortfalls do not exceed the Servicer's aggregate servicing compensation in
respect of such Collection Period.
"Contract": Each retail installment sales contract and security agreement
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or installment loan agreement and security agreement relating to the Contracts
(1) that has been executed by an Obligor and pursuant to which such Obligor (A)
purchased the Manufactured Home described therein, (B) agreed to pay the
deferred purchase price or amount borrowed, together with finance charges, as
therein provided in connection with such purchase or loan, (C) granted a
security interest in such Manufactured Home to the originator of such contract
and (D) undertook to perform certain other obligations as specified in such
contract or loan agreement and (2) that has been assigned to the Trustee
pursuant to the Pooling and Servicing Agreement.
"Contract Documents": With respect to each Contract:
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(a) the original Contract;
(b) either (1) the original title document for the related Manufactured
Home, a duplicate certified by the appropriate governmental authority that
issued the original thereof or, if such original is not yet available, a copy of
the application filed with the appropriate governmental authority pursuant to
which the original title document will issue (which copy may be on microfilm or
optical disk maintained by the Servicer in its records separate from the other
related Contract Documents), or (2) if the laws of the jurisdiction in which the
related Manufactured Home is located do not provide for the issuance of title
documents for manufactured housing units, other evidence of ownership of the
related Manufactured Home that is customarily relied upon in such jurisdiction
as evidence of title to a manufactured housing unit;
(c) unless such Contract is a Land Secured Contract, evidence of one or
more of the following types of perfection of the Seller's or the Trustee's
security interest in the related Manufactured Home granted by such Contract (or,
if such evidence is not yet available, a copy of the application or other filing
used to obtain such security interest (which copy may be on microfilm or optical
disk maintained by the Servicer in its records separate from the other related
Contract Documents)), as appropriate in the applicable jurisdiction: (1)
notation of such security interest on the title document, (2) a financing
statement meeting the requirements of the UCC, with evidence of recording
indicated thereon, (3) a fixture filing in accordance with the UCC, with
evidence of filing indicated thereon, or (4) such other evidence of perfection
of a security interest in a manufactured housing unit as is customarily relied
upon in the jurisdiction in which the related Manufactured Home is located;
(d) an original assignment of the Contract from the initial named payee
thereunder to the Seller (unless the Seller is the initial named payee for such
Contract);
(e) originals of any assumption agreements relating to such Contract,
together with originals of any surety or guaranty agreement relating to such
Contract or to any such assumption agreement, payable to the order of the
Trustee, or, if not so payable, endorsed to the order of, or assigned to, the
Trustee by the holder/payee thereunder without recourse;
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(f) originals of any extension, modification or waiver agreement(s)
relating to such Contract; and
(g) proof of maintenance of a Standard Hazard Insurance Policy for the
related Manufactured Home.
In the case of any Land Secured Contract, the related Contract Documents
shall consist of the following documents in lieu of those listed in clause (c)
of the foregoing paragraph: (i) the original recorded Mortgage for the related
Real Property, with evidence of recordation noted thereon or attached thereto,
or a certified copy thereof issued by the appropriate recording office (or, if
the Mortgage is in the process of being recorded, a photocopy of the Mortgage,
which may be on microfilm or optical disk maintained by the Servicer in its
records separate from the other related Contract Documents); (ii) if the
Mortgage does not name the related Seller as mortgagee therein or beneficiary
thereof, an original recorded assignment or assignments of the Mortgage from the
Persons named as mortgagee in, or beneficiary of, such Mortgage, to the related
Seller, with evidence of recordation noted thereon or attached thereto, or a
certified copy of each such assignment issued by the appropriate recording
office (or, if such an original assignment is in the process of being recorded,
a photocopy of each such assignment, which may be on microfilm or optical disk
maintained by the Servicer in its records separate from the other related
Contract Documents); (iii) a copy of the power of attorney delivered by the
Seller to the Trustee in the event that recordation of such assignments becomes
necessary for foreclosure on the related Real Property by or on behalf of the
Trustee; and (iv) if such Land Secured Contract's original principal balance was
$40,000 or greater, a copy of the title search report and bring-down thereof (or
evidence of title insurance) with respect to the related Real Property.
"Contract File": With respect to any Contract, a file containing all of
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the related Contract Documents.
"Contract Loan-to-Value Ratio": Means, (i) as to each Contract with respect
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to which a lien on land is required for underwriting purposes, the ratio,
expressed as a percentage, of the principal amount of such Contract to the sum
of the purchase price of the home (including taxes, insurance and any land
improvements), the tax value or appraised value of the land and the amount of
any prepaid finance charges or closing costs that are financed; and (ii) as to
each other Contract, the ratio, expressed as a percentage, of the principal
amount of such Contract to the purchase price of the home (including taxes,
insurance and any land improvements) and the amount of any prepaid finance
charges or closing costs that are financed.
"Contract Rate": With respect to a Contract, the annual interest rate
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required to be paid by an Obligor under the terms of such Contract.
"Contract Schedule": For any Series, the list attached to the related
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Pooling and Servicing Agreement identifying each Contract assigned thereunder
(which may be presented together with any related Mortgage Loan Schedule in a
single Asset Schedule), which list shall (a) identify each Contract and (b) set
forth (or describe the method of determining) as to each such Contract (1) the
Cut-off Date Principal Balance thereof, (2) the amount of each Monthly Payment
due from the Obligor thereunder, (3) the Contract Rate thereof, (4) the original
term to maturity thereof, (5) the date of origination thereof, (6) the original
Contract Loan-to-Value Ratio thereof, (7) the state in which the related
Manufactured Home is located, (8) whether the
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related Manufactured Home is a used, repossessed, new or transferred home, (9)
whether the Contract is a Land Secured Contract and (10) any other information
specified in the related Pooling and Servicing Agreement.
"Converted Loan": An Adjustable Rate Asset with respect to which the
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Obligor has complied with the applicable requirements of the related Contract or
Mortgage Note to convert the related Asset Rate to a fixed rate of interest, and
as to which the Servicer has processed such conversion.
"Corporate Trust Office": The principal corporate trust office of the
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Trustee at which at any particular time its corporate trust business under a
Pooling and Servicing Agreement shall be administered.
"Credit Insurer": An insurer under any Primary Mortgage Insurance Policy
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or pool insurance policy for a Series.
"Custodian": For any Series, the Trustee or an agent of the trustee
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identified in the related Pooling and Servicing Agreement, which agent shall
hold all or part of the Trustee Mortgage Loan Files for some or all of the
related Mortgage Loans.
"Cut-off Date": With respect to any Series, the date or dates (a) after
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which all Monthly Payments due in respect of the Assets sold to the Trust (net
of Servicing Fees relating to such Assets) and (b) on and after which all
Principal Prepayments, Net Liquidation Proceeds and Repurchase Prices received
in respect of such Assets, are to be transmitted to the Certificate Account for
the benefit of the Holders of the Certificates. The Cut-off Date for a Series
shall be specified in the related Pooling and Servicing Agreement.
"Cut-off Date Principal Balance": As to any Asset, the original principal
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amount of such Asset, minus the principal portion of all Monthly Payments due on
such Asset on or before the Cut-off Date and minus all other payments applied to
reduce such original principal amount before the Cut-off Date.
"Default": Any occurrence that is, or that with notice or the lapse of
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time or both would become, an Event of Default.
"Defaulted Contract": A Contract (a) as to which any related Monthly
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Payment has been delinquent and remains delinquent 90 days after the Due Date
therefor or (b) as to which the related Obligor has become bankrupt or
insolvent.
"Defect Discovery Date": With respect to an Asset, the date on which
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either the Trustee or the Servicer first discovers a Qualification Defect
affecting the Asset.
"Directly Operate": With respect to any REO Property, the furnishing or
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rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by the Trust, in each case other
than through an Independent Contractor; provided, however, that the Servicer on
behalf of the Trustee shall not be considered to Directly Operate an REO
Property solely because the Servicer on behalf of the Trustee establishes rental
terms, chooses tenants, enters into or
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renews leases, deals with taxes and insurance, or makes decisions as to repairs
or capital expenditures with respect to such REO Property.
"Disqualified Organization": Either (a) the United States, (b) any state
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or political subdivision thereof, (c) any foreign government, (d) any
international organization, (e) any agency or instrumentality of any of the
foregoing, (f) any organization (other than a cooperative described in section
521 of the Code) that is exempt from federal income taxation (including taxation
under the unrelated business taxable income provisions of the Code), (g) any
rural telephone or electrical service cooperative described in section
1381(a)(2)(C) of the Code, or (h) any other entity identified as a disqualified
organization by legislation enacted or administrative pronouncement in effect as
of the date of the most recent transfer of the related Residual Certificate. A
corporation will not be treated as an instrumentality of the United States or
any state or political subdivision thereof if all of its activities are subject
to tax and, with the exception of the Federal Home Loan Mortgage Corporation, a
majority of its board of directors is not selected by such governmental unit.
"Distribution Account": As defined in Section 4.02 hereof.
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"Distribution Date": Unless otherwise specified in the Pooling and
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Servicing Agreement, the 15th day of any month, or the next Business Day after
such 15th day if such 15th day is not a Business Day, commencing in the month
following the Closing Date and ending on the date on which the Trust is
terminated.
"Due Date": With respect to any Asset, the date on which a Monthly Payment
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is due on such Asset from the Obligor thereunder (without regard to any grace
period).
"Due Date Interest Shortfall": For any Asset that is prepaid in full or
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liquidated on other than a Due Date for such Asset, the difference between (a)
the amount of interest that would have accrued on such Asset through the day
preceding the Due Date next following the date of such prepayment or liquidation
had the Asset not been prepaid in full or liquidated (net of any other
administrative fees payable out of such interest had it accrued and been paid)
and (b) the amount of interest that actually accrued on such Asset prior to the
prepayment in full or liquidation thereof (net of an allocable portion of any
other administrative fees payable from interest payments on such Asset in
respect of the related Collection Period).
"Early Payment": As to any Asset and any Due Date on which the principal
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and interest payments on such Asset made with respect to such Due Date (not
including any late fees) exceed the sum of the scheduled Monthly Payment for
such Asset and Due Date plus any unpaid Monthly Payments for previous Due Dates,
if the related Obligor has not sent written notice to the Servicer with such
payment asking that the amount by which such payment exceeds the Monthly Payment
then due be treated as a Principal Prepayment and the Servicer is unable to
determine the Obligor's intended treatment of such excess payment, the Early
Payment shall be the amount by which (1) payments of principal and interest on
such Asset made with respect to such Due Date exceed (2) the scheduled Monthly
Payment for such Asset on such Due Date plus any unpaid Monthly Payments for
previous Due Dates, but only to the extent that the amount of such excess is an
integral multiple of the amount of the scheduled Monthly Payment for such Due
Date. To the extent that the amount of such excess exceeds an integral multiple
of such
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scheduled Monthly Payment, the excess shall be deemed to be a Principal
Prepayment of such Asset.
"Eligible Account": (1) An account or accounts maintained with a Qualified
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Bank, (2) any trust account maintained in the corporate trust department of a
financial institution subject to governmental regulatory authorities or (3) a
non-trust account maintained with the Trustee, so long as the Trustee's
commercial paper or short-term unsecured debt obligations are rated by each
Rating Agency in its highest applicable rating category (without regard to
"plus" or "minus" modifiers of such rating category); provided that the Servicer
shall move any funds in such account to another account which is an Eligible
Account pursuant to clause (1) or (2) of this definition within five days after
any downgrading of the Trustee's commercial paper or short-term unsecured debt
obligations below each Rating Agency's highest applicable rating category
(without regard to "plus" or "minus" modifiers of such rating category) and
shall not deposit funds into any account that is an Eligible Account pursuant to
this clause (3) if such deposit would cause the amount on deposit in such
account to exceed 20% of the aggregate unpaid principal balance of the
Certificates. Eligible Accounts may bear interest.
"Eligible Investments": Any one or more of the following obligations or
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securities:
(a) direct obligations of, and obligations fully guaranteed by, the United
States of America;
(b) demand and time deposits in, negotiable certificates of deposit of,
bankers' acceptances issued by, or federal funds sold by, any Qualified Bank;
(c) commercial paper of any Person other than OMI, the Seller or any
Affiliate of OMI or the Seller rated in the Rating Agency's highest applicable
rating category;
(d) repurchase agreements fully collateralized by possession of
obligations of the type specified in clause (a) above; provided, however, that
investments in such repurchase agreements shall mature within three days of the
acquisition thereof and; provided further, that such agreements shall be entered
into with a Qualified Bank;
(e) money market accounts or money market funds rated in the highest
rating category of the Rating Agency for such money market funds; and
(f) money market accounts or money market mutual funds investing primarily
in obligations of the United States government, and further investing
exclusively in debt obligations, provided, however, that such money market
accounts or money market mutual funds shall be rated in the highest rating
category sufficient to support the initial ratings assigned to a related Series
of Certificates.
Each Eligible Investment may be purchased by the Trustee or through an Affiliate
of the Trustee. The foregoing notwithstanding, Eligible Investments that are
acquired with funds in the Certificate Account, the Distribution Account or any
Reserve Fund shall include only such obligations or securities that mature on or
before the Business Day immediately preceding the next Distribution Date. The
Trustee may not sell or convert an Eligible Investment if such sale or
conversion would result in a loss on the investment. In no event shall an
instrument be an Eligible Investment if such instrument evidences (1) a right to
receive only interest payments
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with respect to the obligations underlying such instrument or (2) both principal
and interest payments derived from obligations underlying such instrument, if
the interest and principal payments with respect to such instrument provide a
yield to maturity at the date of investment of greater than 120% of the yield to
maturity at par of such underlying obligations.
"ERISA": The Employee Retirement Income Security Act of 1974, as amended.
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"ERISA Restricted Certificates": The Certificates designated as "ERISA
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Restricted Certificates" in the related Pooling and Servicing Agreement. If no
such designation is made, then "ERISA Restricted Certificates" shall mean, with
respect to any Series, any Certificates of a Class that are subordinated to the
Certificates of any other Class of such Series with respect to the allocation of
Writedown Amounts.
"Event of Default": As defined in Section 7.01 hereof.
----------------
"FHA": The Federal Housing Administration.
---
"FHA Asset": An Asset that is insured by the FHA.
---------
"FHA Insurance": As to any FHA Asset, FHA's agreement to reimburse the
-------------
owner of such Asset for the amount of any losses incurred upon the liquidation
of such Asset.
"FHLMC": Federal Home Loan Mortgage Corporation.
-----
"Final Certification": A certification as to the completeness of each
-------------------
Trustee Mortgage Loan File substantially in the form of Exhibit 2-B hereto
provided by the Trustee (or the Custodian) on or before the first anniversary of
the Closing Date pursuant to Section 2.03(c)(2) hereof.
"Final Scheduled Distribution Date": With respect to any Class of any
---------------------------------
Series, the date specified as such in the related Pooling and Servicing
Agreement.
"FNMA": Federal National Mortgage Association.
----
"Fraud Loss": A loss incurred on a Contract or Mortgage Loan resulting
----------
from a Credit Insurer's failure to pay a claim with respect to such Contract or
Mortgage Loan on the grounds of fraud in connection with the origination of the
Contract or Mortgage Loan or on the grounds of fraud, dishonesty or
misrepresentation in connection with the application for any insurance obtained
with respect to such Contract or Mortgage Loan.
"Independent": When used with respect to any specified Person, another
-----------
Person who (a) is in fact independent of OMI, the Seller, the Servicer, any
obligor upon the Certificates or any Affiliate of OMI, the Seller or the
Servicer or such obligor, (b) does not have any direct financial interest or any
material indirect financial interest in OMI, the Seller or the Servicer or in
any such obligor or in an Affiliate of OMI, the Seller or the Servicer or such
obligor, and (c) is not connected with OMI, the Seller or the Servicer or any
such obligor as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions. Whenever it is provided herein
that any Independent Person's opinion or certificate shall be furnished to the
Trustee, such Person shall be appointed by OMI, the Seller or the Servicer in
the exercise of reasonable care by OMI, the Seller or the Servicer, as the case
may be, and approved
-9-
by the Trustee, and such opinion or certificate shall state that the Person
executing the same has read this definition and that such Person is independent
within the meaning thereof.
"Independent Contractor": Either (a) any Person (other than the Servicer)
----------------------
that would be an "independent contractor" with respect to the Trust within the
meaning of Section 856(d)(3) of the Code if the Trust were a real estate
investment trust (except that, in applying that Section, more than 35% of the
outstanding principal balance of any Class shall be deemed to be more than 35%
of the certificates of beneficial interest of the Trust), so long as the Trust
does not receive or derive any income from such Person, the relationship between
such Person and the Trust is at arm's length and such Person is not an employee
of the REMIC, the Trustee or the Servicer, all within the meaning of Treasury
Regulation Section 1.856-4(b)(5), or (b) any other Person (including the
Servicer) upon receipt by the Trustee of an Opinion of Counsel, the expense of
which shall constitute a Servicing Advance if borne by the Servicer, to the
effect that the taking of any action in respect of any REO Property by such
Person, subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor will not cause such REO
Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the exception
applicable for purposes of Section 860D(a) of the Code), or cause any income
realized in respect of such REO Property to fail to qualify as Rents from Real
Property.
"Initial Certification": A certification as to the completeness of each
---------------------
Trustee Mortgage Loan File substantially in the form of Exhibit 2-A hereto
provided by the Trustee (or the Custodian) on the Closing Date pursuant to
Section 2.03(c)(1) hereof.
"Initial Value": As defined in Section 3.16(b) hereof.
-------------
"Insurance Policy": Any insurance policy covering any Asset (or the
----------------
related Manufactured Home or Mortgaged Property), including, without limitation,
any Standard Hazard Insurance Policy or Primary Mortgage Insurance Policy or FHA
Insurance or VA Guaranty.
"Insurance Proceeds": Amounts paid or payable (as the context requires)
------------------
under any Insurance Policy, to the extent such amounts are not applied to the
restoration or repair of the Manufactured Home or Mortgaged Property in respect
of which such amounts were paid.
"Insured Expenses": Expenses incurred by the Servicer in connection with a
----------------
Contract or Mortgage Loan under which the Obligor is in default, which expenses
are covered by a Standard Hazard Insurance Policy and are paid by an insurer
under any such policy.
"Issuing REMIC": If provided for in a Pooling and Servicing Agreement, the
-------------
REMIC composed primarily of Regular Interests in the Pooling REMIC, together
with the Distribution Account.
"Interest Accrual Period": With respect to any Distribution Date for a
-----------------------
Series, the calendar month immediately preceding the calendar month in which
such Distribution Date occurs, which period will be assumed to consist of 30
days for the purpose of calculating any interest amounts accrued on the
Certificates of such Series.
"Land Secured Contract": A Contract secured at origination by a parcel of
---------------------
real estate in addition to a Manufactured Home.
-10-
"Liquidated Loan": A Defaulted Contract or defaulted Mortgage Loan as to
---------------
which all amounts that the Servicer expects to recover through the date of
disposition of the related Manufactured Home or Mortgaged Property have been
received.
"Liquidation Expenses": All reasonable, out-of-pocket costs and expenses
--------------------
(exclusive of the Servicer's overhead costs) incurred by the Servicer in
connection with liquidation of any Asset or disposition of any related Repo
Property or REO Property, including, but not limited to, the cost of all notices
sent in connection with such liquidation, costs and expenses incurred in
connection with preparation and recordation of assignments of Mortgages relating
to Land Secured Contracts, expenses, including reasonable attorney's fees,
incurred in connection with the commencement and pursuit of Proceedings against
Obligors or guarantors or sureties of Obligors or in the pursuit of foreclosure
or other similar remedies, expenses incurred in repossessing and refurbishing
the related Manufactured Home or preparing the related REO Property for sale and
sales commissions paid in connection with the resale of the related Manufactured
Home or REO Property.
"Liquidation Proceeds": Amounts received and retained in connection with
--------------------
the liquidation of Liquidated Loans, whether through foreclosure thereon or
repossession and resale of the related Manufactured Home, foreclosure on the
related Mortgaged Property or otherwise (including Insurance Proceeds collected
in connection with such liquidation).
"Loan-to-Value Ratio": The Contract Loan-to-Value Ratio or the Mortgage
-------------------
Loan-to-Value Ratio of an Asset, as applicable.
"Manufactured Home": A unit of manufactured housing (within the meaning of
-----------------
Code section 25(e)(10)) together with all accessions thereto securing the
indebtedness of the Obligor under any Contract or constituting a portion of the
Mortgaged Property securing the indebtedness of the Obligor under any Mortgage
Loan.
"Monthly Payment": With respect to any Asset, the scheduled monthly
---------------
payment of principal and interest thereon due in any month under the terms
thereof.
"Mortgage": A written instrument creating a valid first lien on Real
--------
Property or a Mortgaged Property, in the form of a mortgage, deed of trust, deed
to secure debt or security deed, including any riders or addenda thereto.
"Mortgage Insurer": The insurance company or companies which issue any
----------------
Primary Mortgage Insurance Policies with respect to any Mortgage Loans.
"Mortgage Loan": A mortgage loan (not including any Land Secured Contract)
-------------
secured by a first lien on a one- to four-family residential real property
(which may be the real estate to which a manufactured home is deemed by the
Seller to have become permanently affixed as of the Cut-off Date for the related
Series).
"Mortgage Loan Documents": With respect to each Mortgage Loan, the
-----------------------
following documents:
(a) the original Mortgage Note bearing a complete chain of endorsements,
if necessary, from the initial payee thereunder to the Seller, with a further
endorsement without
-11-
recourse from the Seller in blank or to the Trustee or its Custodian, in a form
specified in the related Sales Agreement, together with all related riders and
addenda and any related surety or guaranty agreement, power of attorney and
buydown agreement;
(b) the original recorded Mortgage (or a copy thereof certified to be a
true and correct reproduction of the original thereof by the appropriate public
recording office) with evidence of recordation noted thereon or attached
thereto, or, if the Mortgage is in the process of being recorded, a photocopy of
the Mortgage, certified by an officer of the related Seller or the originator,
the related title insurance company, the related closing/settlement/escrow agent
or the related closing attorney to be a true and correct copy of the Mortgage
submitted for recordation;
(c) the original recorded assignment of the Mortgage from the related
Seller to the Trustee or its Custodian, in a form specified in the related Sales
Agreement (or a copy thereof certified to be a true and correct reproduction of
the original thereof by the appropriate public recording office) with evidence
of recordation noted thereon or attached thereto, or, if the assignment is in
the process of being recorded, a photocopy of the assignment, certified by an
officer of the Seller to be a true and correct copy of the assignment submitted
for recordation;
(d) each original recorded intervening assignment of the Mortgage as is
necessary to show a complete chain of title from the initial mortgagee (or
beneficiary, in the case of a deed of trust) to the related Seller (or a copy of
each such assignment certified to be a true and correct reproduction of the
original thereof by the appropriate public recording office) with evidence of
recordation noted thereon or attached thereto, or, if an assignment is in the
process of being recorded, a photocopy of the assignment, certified by an
officer of the Seller to be a true and correct copy of the assignment submitted
for recordation;
(e) an original Title Insurance Policy or, if such policy has not yet been
issued or is otherwise not available, (1) a written commitment to issue such
policy issued by the applicable title insurance company and an officer's
certificate of the related Seller certifying that all of the requirements
specified in such commitment have been satisfied, (2) a preliminary title report
if the related Mortgaged Property is located in a state in which preliminary
title reports are acceptable evidence of title insurance, (3) a certificate of
an officer of the Seller certifying that a Title Insurance Policy is in full
force and effect as to the related Mortgage and that such Title Insurance Policy
is freely assignable to and will inure to the benefit of the Trustee (subject to
recordation of the related Assignment of Mortgage) or (4) an Opinion of Counsel
with respect to the title of the related Mortgaged Property;
(f) for each Mortgage Loan identified in the related Agreement as having
in place a Primary Mortgage Insurance Policy, a Primary Mortgage Insurance
Policy or a certificate of primary mortgage insurance issued by the related
Mortgage Insurer or its agent indicating that such a policy is in effect as to
such Mortgage Loan or, if neither a policy nor a certificate of insurance from
the related Mortgage Insurer is available, a certificate of an officer of the
related Seller certifying that a Primary Mortgage Insurance Policy is in effect
as to such Mortgage Loan;
(g) each related assumption agreement, modification, written assurance or
substitution agreement, if any; and
-12-
(h) proof of the maintenance of a Standard Hazard Insurance Policy (and a
flood insurance policy, if applicable) as to the related Mortgaged Property.
"Mortgage Loan-to-Value Ratio": Means, as to a Mortgage Loan, the ratio,
----------------------------
expressed as a percentage, of the principal amount of such Mortgage Loan at the
time of determination, to either (i) the sum of the appraised value of the land
and improvements, and the amount of any prepaid finance charges or closing costs
that are financed or (ii) the sum of the purchase price of the home (including
taxes, insurance and any land improvements), the appraised value of the land and
the amount of any prepaid finance charges or closing costs that are financed.
"Mortgage Loan Schedule": For any Series, the list attached to the related
----------------------
Pooling and Servicing Agreement identifying each Mortgage Loan assigned
thereunder (which may be presented together with any related Contract Schedule
in a single Asset Schedule), which list shall (a) identify each Mortgage Loan
and (b) set forth (or describe the method of determining) as to each such
Mortgage loan (1) the Cut-off Date Principal Balance thereof, (2) the amount of
each Monthly Payment, (3) the Mortgage Rate thereof, (4) the original term to
maturity thereof, (5) the date of origination thereof, (6) the original Mortgage
Loan-to-Value Ratio thereof, (7) the state in which the related Mortgaged
Property is located, and (8) any other information as may be reasonably
requested by the Trustee prior to the Closing Date.
"Mortgage Note": A manually executed written instrument evidencing a
-------------
Mortgagor's promise to repay a stated sum of money, plus interest, to the holder
of such instrument on or before a specific date according to a schedule of
principal and interest payments.
"Mortgage Rate": With respect to each Mortgage Loan, the interest rate
-------------
specified in the related Mortgage Note.
"Mortgaged Property": The mortgaged property securing a Mortgage Loan.
------------------
"Mortgagor": The obligor on a Mortgage Note.
---------
"Net Insurance Proceeds": With respect to any Asset, Insurance Proceeds
----------------------
received with respect thereto net of (a) any Insured Expenses incurred in
connection therewith, (b) all reasonable out-of-pocket expenses incurred by the
Servicer in connection with the collection of such Insurance Proceeds and (c)
the amount of any Advances made by the Servicer or any other entity with respect
to such Asset and not previously reimbursed to the Servicer or such other entity
as of the time of the Servicer's receipt of such Insurance Proceeds. Amounts
received by the Servicer as Net Insurance Proceeds will be treated for
accounting purposes as payments received on Assets.
"Net Liquidation Proceeds": With respect to any Asset, the amount of
------------------------
Liquidation Proceeds received with respect thereto (including any Net Insurance
Proceeds recovered in connection with the liquidation of the related
Manufactured Home or Mortgaged Property) net of the amount of any Liquidation
Expenses incurred and not previously reimbursed to the Servicer or such other
entity as of the time of the liquidation of such Asset. Amounts received by the
Servicer as Net Liquidation Proceeds will be treated for accounting purposes as
payments received on Assets.
"Net Rate": As to any Asset, the applicable Asset Rate minus the Servicing
--------
Fee Rate.
-13-
"New Lease": Any lease of REO Property entered into on behalf of the
---------
Trust, including any lease renewed, modified or extended on behalf of the Trust
(if the Trustee, or the Servicer or its agent, has the right to renegotiate the
terms of such lease).
"Non-Recoverable Advance": As to any Advance that has not yet been made,
-----------------------
any portion of the amount of such prospective Advance which the Servicer
reasonably determines would not ultimately be recoverable from Related Proceeds.
As to any Advance that has been made by the Servicer, any portion of the amount
of such Advance that has subsequently been determined by the Servicer to be not
ultimately recoverable from Related Proceeds. In determining whether an Advance
is or would be a Non-Recoverable Advance, the Servicer need not take into
account the possibility that it might recover any amounts as the result of a
deficiency judgment against the related Obligor.
"Non-U.S. Person": A person that is not (i) a citizen or resident of the
---------------
United States, (ii) a corporation created or organized in or under the laws of
the United States, any state thereof or the District of Columbia, including an
entity treated as a corporation for federal income tax purposes, (iii) a
partnership (unless Treasury regulations are adopted that provide otherwise)
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, including an entity treated as a
partnership for federal income tax purposes, none of the interests in which are
owned, directly or indirectly through one or more intermediate entities, by a
Non-U.S. Person, (iv) an estate the income of which is subject to United States
federal income tax regardless of its source, (v) a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust and one or more United States fiduciaries have the authority to
control all substantial decisions of the trust (or to the extent provided in
applicable Treasury regulations, certain trusts in existence on August 20, 1996
that are eligible to be treated as United States persons), or (vi) a foreign
person who would be subject to United States federal income taxation on a net
basis on income derived from a Residual Certificate.
"OAC": Oakwood Acceptance Corporation, a North Carolina corporation.
---
"Obligor": A person who is indebted under a Contract or who has acquired a
-------
Manufactured Home subject to a Contract or a person who is the Mortgagor or
borrower under a Mortgage Loan or who has acquired a Mortgaged Property subject
to a Mortgage Loan.
"Obligor Bankruptcy Loss": With respect to any Distribution Date as to any
-----------------------
Asset that was the subject of a Principal Cramdown during the preceding
Prepayment Period, the related Principal Cramdown Amount.
"Officer": With respect to any corporation, the Chairman of the Board of
-------
Directors, the President, any Vice President or Assistant Vice President, the
Secretary, the Treasurer, or any Assistant Secretary or Assistant Treasurer of
such corporation (or, in the case of the Trustee, any trust officer thereof);
with respect to any partnership, the designated managing partner, if any, who
has been granted authority by the partnership agreement of such partnership to
bind the partnership by his or her signature, or, in any other case, any general
partner of the partnership; with respect to any bank or trust company acting as
trustee of an express trust or as custodian, any trust officer or authorized
officer thereof.
-14-
"Officer's Certificate": For any Person, a certificate that has been
---------------------
signed on behalf of that Person by an Officer of that Person or any other
individual authorized to execute the certificate.
"Opinion of Counsel": A written opinion of counsel, which counsel is
------------------
satisfactory to the Servicer and the Trustee. Whenever an Opinion of Counsel is
required hereunder, the renderer of such Opinion may rely on other Opinions of
Counsel. Any Opinion of Counsel relating to tax matters must be an opinion of
Independent counsel.
"OMI": Oakwood Mortgage Investors, Inc., a Nevada corporation.
---
"Outstanding": (a) With respect to the Certificates, as of any date of
-----------
determination, "Outstanding" refers to all Certificates theretofore executed and
delivered under the Pooling and Servicing Agreement except:
(1) Certificates theretofore canceled by the Certificate Registrar or
delivered to the Certificate Registrar for cancellation;
(2) Certificates or portions thereof for which money in the amount
necessary for the making of a final distribution on such Certificates has
been theretofore deposited with the Trustee or any Paying Agent in trust
for the Holders of such Certificates; provided, that if such Certificates
are to be retired because of termination of the Trust at the option of the
Servicer, notice of such optional termination has been duly given pursuant
to the Pooling and Servicing Agreement;
(3) Certificates in exchange for which other Certificates have been
executed and delivered pursuant to Section 5.04 hereof; and
(4) Certificates alleged to have been destroyed, lost or stolen for
which replacement Certificates have been issued pursuant to Section 5.07
hereof unless proof satisfactory to the Trustee has been presented at or
before the time that the determination of those Certificates that are
Outstanding is made that any such Certificates are held by a holder in due
course.
(b) With respect to the Assets as of any date, "Outstanding" refers to
Assets with unpaid principal balances greater than zero and that have not
previously been purchased or repurchased pursuant to Section 2.06 hereof or
become Liquidated Loans.
"Outstanding Certificate Writedown Amount": With respect to any Class of
----------------------------------------
Certificates, the aggregate amount of all Writedown Amounts that have been
allocated to such Class since the Closing Date for the related Series, minus any
amounts that have been distributed on such Class in reduction of such aggregate
amount in accordance with the related Pooling and Servicing Agreement.
"P&I Advance": As defined in Section 3.04(b) hereof.
-----------
"Pass-Through Rate": With respect to any Class of Certificates, the annual
-----------------
rate at which interest accrues on the Certificates of such Class, which rate is
specified or described for each Class in the related Pooling and Servicing
Agreement.
-15-
"Paying Agent": Any Person authorized by OMI and the Trustee to distribute
------------
principal or interest on any Certificates on behalf of the Trustee and appointed
pursuant to Section 5.09 hereof.
"Percentage Interest": With respect to a Certificate to which an initial
-------------------
principal amount is assigned as of the Closing Date, the portion of the Class of
which such Certificate is a part evidenced by such Certificate, expressed as a
percentage, the numerator of which is the denomination represented by such
Certificate and the denominator of which is the initial Certificate Principal
Balance of such Class. With respect to a Certificate to which an initial
principal balance is not assigned as of the Closing Date, the portion of the
Class of which such Certificate is a part evidenced by such Certificate,
expressed as a percentage stated on the face of such Certificate.
"Permitted Encumbrances": In respect of any Mortgaged Property or Real
----------------------
Property:
(a) the lien of current real property taxes and assessments not
yet due and payable;
(b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of
recording acceptable to prudent mortgage lending institutions
generally and specifically referred to in the lender's title insurance
policy delivered to the related originator and referred to or
otherwise considered in the appraisal made for the originator; and
(c) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value
or marketability of the related Mortgaged Property or Real Property.
"Person": Any individual, corporation, partnership, joint venture,
------
association, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": Any employee benefit plan or retirement arrangement, including
----
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds in which such plans, accounts, annuities or arrangements are
invested, that are described in or subject to the Plan Asset Regulations, ERISA
or corresponding provisions of the Code.
"Plan Asset Regulations": The Department of Labor regulations set forth in
----------------------
29 C.F.R. (S) 2510.3-101.
"Plan Investor": A Plan, a Person acting on behalf of a Plan or a Person
-------------
using the assets of a Plan.
"Pool Scheduled Principal Balance": For any Series, on any Distribution
--------------------------------
Date, the aggregate of the Scheduled Principal Balances, immediately prior to
the beginning of the related Collection Period, of the related Assets that were
Outstanding at the beginning of such Collection Period, without giving effect to
any Principal Prepayments, Net Liquidation Proceeds or Repurchase Prices
received (or Realized Losses incurred) on the day preceding the beginning
-16-
of such Collection Period, plus the aggregate of the principal components of any
Monthly Payments that were due at or prior to the beginning of such Collection
Period on such Assets, but which Monthly Payments were not collected from a
related Obligor or advanced by the Servicer and which were not reflected in a
corresponding reduction in the aggregate Certificate Principal Balance of the
related Certificates on the related Distribution Date, and the Pre-Funded
Amount, if any. The Pool Scheduled Principal Balance as of any date of
determination that is not a Distribution Date shall be the Pool Scheduled
Principal Balance for the next upcoming Distribution Date.
"Pooling and Servicing Agreement": A Pooling and Servicing Agreement among
-------------------------------
OMI, OAC and a Trustee, relating to the issuance of Certificates of a Series,
which shall incorporate these Standard Terms by reference.
"Pooling REMIC": If provided for in a Pooling and Servicing Agreement, the
-------------
REMIC consisting primarily of the related Assets.
"Pooling REMIC Regular Interest": A Regular Interest in a Pooling REMIC.
------------------------------
"Prepayment Period": With respect to each Distribution Date, the calendar
-----------------
month immediately preceding the calendar month in which such Distribution Date
occurs.
"Primary Mortgage Insurance": The insurance provided under any Primary
--------------------------
Mortgage Insurance Policy.
"Primary Mortgage Insurance Policy": A primary mortgage insurance policy,
---------------------------------
if applicable, covering certain conventional Mortgage Loans for which the
initial Mortgage Loan-to-Value Ratios exceeded 80%.
"Principal Cramdown" means, as to any Asset, either (a) a decree by a
------------------
bankruptcy court to the effect that the portion of such Asset that is secured by
the underlying Manufactured Home or Mortgaged Property is less than its Unpaid
Principal Balance due to the fact that the value of such Manufactured Home or
Mortgaged Property is less than such Unpaid Principal Balance or (b) the
permanent forgiveness by a bankruptcy court of some or all of the Unpaid
Principal Balance owed by the related Obligor.
"Principal Cramdown Amount" means, with respect to any Prepayment Period as
-------------------------
to any Asset that has been the subject of a Principal Cramdown, the amount by
which (a) the Unpaid Principal Balance of such Asset exceeds (b) as applicable,
depending upon the type of Principal Cramdown that was applied to such Asset,
either (1) the portion of such Unpaid Principal Balance that remains secured by
the related Manufactured Home or Mortgaged Property after taking the related
Principal Cramdown into account or (2) the Unpaid Principal Balance after taking
into account the permanent forgiveness of debt ordered by the bankruptcy court
in connection with the related Principal Cramdown.
"Principal Distribution Amount": For any Series, except as otherwise
-----------------------------
defined in the related Pooling and Servicing Agreement, on any Distribution Date
other than the Distribution Date that is the Termination Date, the sum of the
following amounts: (a) the sum of the principal components of all Monthly
Payments scheduled to be made on the Due Date occurring during the related
Collection Period on the related Assets that were Outstanding at the opening of
-17-
business on such Due Date (regardless of whether such Monthly Payments were
received by the Servicer from the related Obligors), not including any Monthly
Payments due on Liquidated Loans or repurchased Assets; (b) the sum of the
amounts of all Principal Prepayments received by the Servicer on the related
Assets during the related Prepayment Period; (c) with respect to any related
Asset that became a Liquidated Loan during the related Prepayment Period, the
Scheduled Principal Balance thereof on the date of liquidation thereof
(determined without giving effect to such liquidation); and (d) with respect to
any related Asset that was purchased or repurchased by the Servicer, the Seller
or OMI pursuant to Section 2.06 hereof during the related Prepayment Period, the
Scheduled Principal Balance thereof on the date of purchase or repurchase
thereof (determined without giving effect to such purchase or repurchase).
"Principal Prepayment": With respect to any Asset, a payment attributable
--------------------
to principal of such Asset, other than a scheduled principal payment on such
Asset, which may be received (a) from the related Obligor together with a
regular Monthly Payment, (b) from the related Obligor together with an Early
Payment, or (c) in the form of Net Insurance Proceeds received by the Servicer
otherwise than as a component of Liquidation Proceeds.
"Private Certificate": Any Class of Certificates of a Series designated as
-------------------
such in the related Pooling and Servicing Agreement.
"Proceeding": Any suit in equity, action at law or other judicial or
----------
administrative proceeding.
"Qualification Defect": With respect to an Asset, (a) a defective document
--------------------
in the related Asset File, (b) the absence of a document in such Asset File, or
(c) the breach of any representation, warranty, or covenant with respect to the
Asset made by OMI, the Seller or the Servicer, but only if, as a result of any
of the foregoing, the affected Asset would cease to qualify as a "qualified
mortgage" for purposes of the REMIC Provisions. With respect to a REMIC Regular
Interest or a participation certificate described in Code section 860G(a)(3),
the failure to qualify as a "qualified mortgage" for purposes of the REMIC
Provisions.
"Qualified Bank": Any domestic bank not affiliated with the Seller or OMI
--------------
(1) having long-term unsecured debt obligations rated in one of the two highest
rating categories (without modifiers) of each Rating Agency or short-term
unsecured debt obligations rated in each Rating Agency's highest applicable
rating category, (2) having commercial paper or short-term unsecured debt
obligations rated in each Rating Agency's highest applicable rating category, or
(3) that is otherwise acceptable to each applicable Rating Agency.
"Qualified Institutional Buyer": Any "qualified institutional buyer" as
-----------------------------
defined in clause (a)(1) of Rule 144A.
"Qualified Insurer": Any insurance company or surety or bonding company
-----------------
licensed to do business and issue insurance in all relevant jurisdictions
(including, in the case of an insurer under a Standard Hazard Insurance Policy,
the jurisdiction in which each Manufactured Home or Real Property or Mortgaged
Property covered by such policy is located).
"Qualified Substitute Asset": An Asset substituted by OMI or the Seller
--------------------------
for a Replaced Asset which must, on the date of such substitution, (a) have an
Unpaid Principal Balance not greater than (and not more than $10,000 less than)
the Unpaid Principal Balance of the Replaced
-18-
Asset, (b) have an Asset Rate not less than (and not more than one percentage
point in excess of) the Asset Rate of the Replaced Asset, (c) have a Net Rate
equal to the Net Rate of the Replaced Asset, (d) have a remaining term to
maturity not greater than (and not more than one year less than) that of the
Replaced Asset, (e) have a Loan-to-Value Ratio as of the first day of the month
in which the substitution occurs equal to or less than the Loan-to-Value Ratio
of the Replaced Asset as of such date (in each case, using the appraised value
at origination, and after taking into account the Monthly Payment due on such
date), and (f) comply with each representation and warranty set forth in Section
2.05 hereof and in the related Sales Agreement. In the event that more than one
Asset is substituted for a Replaced Asset, the amount described in clause (a)
hereof shall be determined on the basis of aggregate Unpaid Principal Balances,
the rates described in clauses (c) (i), (ii), and (iii) hereof shall be
determined on the basis of weighted average Asset Rates and Net Rates, as the
case may be, and the term described in clause (d) hereof shall be determined on
the basis of weighted average remaining terms to maturity, provided that no
Qualified Substitute Asset may have an original term to maturity beyond the
latest original term to maturity of any Asset assigned to the Trust on the
Closing Date. In the case of a Trust for which a REMIC election has been or will
be made, a Qualified Substitute Asset also shall satisfy the following criteria
as of the date of its substitution for a Replaced Asset: (A) the Obligor shall
not be 30 or more days delinquent in payment on the Qualified Substitute Asset,
(B) the Asset File for such Asset shall not contain any material deficiencies in
documentation, and shall include an executed Contract or Mortgage Note, as
applicable, and, if it is a Land Secured Contract or a Mortgage Loan, a recorded
Mortgage; (C) the Loan-to-Value Ratio of the Asset must be 125% or less either
(1) on the date of origination of the Asset, or, if any of the terms of such
Asset were modified other than in connection with a default or imminent default
on such Asset, on the date of such modification, or (2) on the date of the
substitution, based on an appraisal conducted within the 60 day period prior to
the date of the substitution; (D) no property securing such Asset may be subject
to foreclosure, bankruptcy, or insolvency proceedings; and (E) such Asset, if a
Land Secured Contract or a Mortgage Loan, must be secured by a valid first lien
on the related Real Property or Mortgaged Property. In addition to all other
requirements stated in this paragraph, any Replaced Asset that is a Mortgage
Loan may only be replaced by another Mortgage Loan.
"Rating Agency": As to any Series, any nationally recognized statistical
-------------
rating agency, or its successor, that on the Closing Date rated one or more
Classes of the Certificates of such Series at the request of OMI. If such
agency or a successor is no longer in existence, "Rating Agency" shall be such
nationally recognized statistical rating agency, or other comparable Person,
designated by OMI, notice of which designation shall be given to the Trustee and
the Servicer. References herein to any rating category of a Rating Agency shall
mean such rating category without regard to any plus or minus or numerical
designation.
"Real Property": Land and improvements thereon subject to the lien of the
-------------
Mortgage securing a Land Secured Contract.
"Realized Interest Loss": A shortfall in interest resulting from the
----------------------
receipt of Liquidation Proceeds in respect of a Contract or Mortgage Loan in an
amount that is insufficient to pay accrued and unpaid interest thereon.
"Realized Loss": Either (a) with respect to any Liquidated Loan, (1) the
-------------
Unpaid Principal Balance of the Liquidated Loan, plus accrued and unpaid
interest on such Liquidated
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Loan, plus amounts reimbursable to the Servicer for previously unreimbursed
Servicing Advances, minus (2) Net Liquidation Proceeds collected in respect of
the Liquidated Loan or (b) with respect to any Asset that has been the subject
of a Principal Cramdown, an Obligor Bankruptcy Loss with respect to such Asset.
"Record Date": With respect to each Distribution Date, the last Business
-----------
Day of the month immediately preceding the month in which such Distribution Date
occurs.
"Recordation Report": A report substantially in the form of Exhibit 3
------------------
hereto provided by the Trustee (or the Custodian) pursuant to Section 2.03(c)(5)
hereof identifying those Mortgage Loans for which a Mortgage or an Assignment
remains unrecorded.
"Regular Certificate": A Certificate other than a Residual Certificate and
-------------------
that is a Regular Interest in a REMIC or a combination of Regular Interests in a
REMIC.
"Regular Interests": Interests in a REMIC that are designated as "regular
-----------------
interests" under the REMIC Provisions.
"Regulations": The regulations promulgated under the Code by the Treasury.
-----------
"Related Proceeds": As defined in Section 3.04(c) hereof.
----------------
"REMIC": A "real estate mortgage investment conduit," within the meaning
-----
of the REMIC Provisions. As to a particular Trust, those assets of the Trust as
to which an election is to be made to be treated as a "real estate mortgage
investment conduit," within the meaning of section 860D of the Code. A REMIC
generally is an elective entity for federal income tax purposes that consists of
a fixed pool of qualifying assets in which investors hold multiple classes of
interests. In order to be treated as a REMIC, such pool will be required to
meet ongoing qualification requirements provided by the Code, Regulations, and
binding pronouncements of the Internal Revenue Service, as in effect from time
to time.
"REMIC Loan-to-Value Ratio": The quotient, expressed as a percentage,
-------------------------
obtained by dividing (a) the original unpaid principal balance of an Asset, by
(b) the fair market value of the Manufactured Home or Mortgaged Property that
secures such Asset minus the full amount of any other indebtedness secured by
the related Manufactured Home or Mortgaged Property which is senior to such
Asset or a pro rata portion of any other indebtedness secured by the related
Manufactured Home or Mortgaged Property that is in parity with such Asset.
"REMIC Provisions": Provisions of the Code relating to real estate
----------------
mortgage investment conduits, which appear at sections 860A through 860G of the
Code, related Code provisions, and Regulations (whether in proposed, temporary
or final form), announcements and rulings thereunder, as the foregoing may be in
effect from time to time.
"Remittance Amount": With respect to any Remittance Date and related
-----------------
Distribution Date, the sum of the following amounts:
(a) the Monthly Payment that was due on each Outstanding Asset on the Due
Date occurring in the related Collection Period and that was received by the
Servicer from the related Obligor;
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(b) all amounts received during the related Collection Period in respect
of any Asset that was Outstanding at the beginning of the related Collection
Period representing late payments of principal and interest due on such Asset
prior to the Due Date occurring in the related Collection Period, to the extent
such amounts exceed outstanding xxxxxxxxxxxx X&X Advances made by the Servicer
with respect to such Asset;
(c) each Principal Prepayment (whether full or partial) of any Asset that
was Outstanding at the beginning of the related Prepayment Period received by
the Servicer during the related Prepayment Period;
(d) any amounts received by the Servicer during the related Prepayment
Period as Net Liquidation Proceeds with respect to any Asset that was
Outstanding at the beginning of the related Prepayment Period (net of
outstanding xxxxxxxxxxxx X&X Advances made by the Servicer with respect to such
Asset); and
(e) all amounts deposited into the Certificate Account during the related
Prepayment Period as a result of any purchase or repurchase of any Asset
pursuant to Section 2.06 hereof (net of outstanding xxxxxxxxxxxx X&X Advances
made by the Servicer with respect to such Asset).
"Remittance Date": The Business Day preceding each Distribution Date,
---------------
which is the date by which funds must be remitted by the Servicer from the
Certificate Account to the Distribution Account or, if the Certificate Account
is maintained by the Trustee, the date on which the Servicer is to notify the
Trustee of the related Remittance Amount, in either case pursuant to Section
3.07(b) hereof.
"Remittance Report": As defined in Section 4.01 hereof.
-----------------
"Rents From Real Property": With respect to any REO Property, gross income
------------------------
of the character described in Code section 856(d) and Treasury regulations
thereunder.
"REO Property": A Mortgaged Property acquired by the Servicer on behalf of
------------
the Certificateholders through foreclosure or deed-in-lieu of foreclosure, as
further described in Section 3.09 hereof.
"REO Property Disposition": The receipt by the Servicer of Insurance
------------------------
Proceeds and other payments and recoveries (including Liquidation Proceeds)
which the Servicer recovers from the sale or other disposition of an REO
Property.
"Replaced Asset": An Asset replaced or to be replaced by a Qualified
--------------
Substitute Asset.
"Repo Property": A Manufactured Home (and any related Real Property)
-------------
acquired by the Servicer on behalf of the Trust pursuant to a repossession,
foreclosure, or similar proceeding in connection with a Defaulted Contract.
"Repurchase Price": With respect to any Asset to be purchased or
----------------
repurchased pursuant to Section 2.06 hereof, an amount equal to the Unpaid
Principal Balance of such Asset as of the close of business on the date of such
purchase or repurchase, together with all accrued and unpaid interest thereon to
the end of the Collection Period in which such purchase or repurchase occurs.
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"Repurchaser": Any Person that repurchases or purchases a Contract from
-----------
the Trust pursuant to Section 2.06 hereof.
"Request for Release": A release signed by an Officer of the Servicer in
-------------------
the form attached hereto as Exhibit 4.
"Reserve Fund": Any fund designated as a "Reserve Fund" in a Pooling and
------------
Servicing Agreement.
"Residual Certificate": Any one of the Classes of Certificates of a Series
--------------------
designated as such in the related Pooling and Servicing Agreement.
"Residual Interest": An interest in a REMIC that is designated as a
-----------------
"residual interest" under the REMIC Provisions.
"Residual Majority": At any time, the Holders of a majority (by Percentage
-----------------
Interests) of the Residual Certificates.
"Residual Transferee Agreement": A certification and agreement required to
-----------------------------
be executed and delivered by the prospective transferee of a Residual
Certificate pursuant to Section 5.05(c) hereof, which must be substantially in
the form of Exhibit 8 hereto.
"RESPA": The Real Estate Settlement Procedures Act of 1974, as amended.
-----
"Rule 144A": Rule 144A promulgated by the Securities and Exchange
---------
Commission, as the same may be amended from time to time.
"Rule 144A Agreement": An agreement substantially in the form of Exhibit 5
-------------------
hereto.
"Rule 144A Certificates": Any Class of Certificates of a Series designated
----------------------
as such in the related Pooling and Servicing Agreement.
"Sales Agreement": A Sales Agreement pursuant to which a Seller sells
---------------
Contracts and/or Mortgage Loans to OMI for inclusion in a Trust.
"Scheduled Principal Balance": As of any date of determination with
---------------------------
respect to any Contract, Repo Property, Mortgage Loan or REO Property, (a) the
Cut-off Date Principal Balance of such Contract or Mortgage Loan (or of the
related Contract or Mortgage Loan, in the case of a Repo Property or REO
Property) minus (b) the sum of (1) the principal components of any Monthly
Payments due on such Contract or Mortgage Loan (or on the related Contract or
Mortgage Loan, in the case of a Repo Property or REO Property) after the related
Cut-off Date and on or before such date of determination (regardless of whether
such Monthly Payments were received from the related Obligor) plus (2) all
principal prepayments received by the Servicer on such Contract or Mortgage Loan
(or on the related Contract or Mortgage Loan, in the case of a Repo Property or
REO Property) (including the principal portion of Net Liquidation Proceeds and
the principal portion of all amounts paid by the Seller or another party to
repurchase such Contract or Mortgage Loan) on or after the Cut-off Date and on
or prior to the end of the Prepayment Period preceding the date of
determination, plus (3) all Realized Losses incurred on such Contract or
Mortgage Loan (or the related Contract or Mortgage Loan, in the case of a Repo
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Property or REO Property) on or after the Cut-off Date and on or prior to such
date of determination.
"Securities Act": The Securities Act of 1933, as amended.
--------------
"Seller": As to any Contract or Mortgage Loan included in the Trust Estate
------
for a Series, the entity that sold such Contract or Mortgage Loan to OMI under a
Sales Agreement, which will be OAC unless otherwise specified in the related
Pooling and Servicing Agreement. For purposes of the definitions of "Contract
Documents" and "Mortgage Loan Documents" herein, documents (including, without
limitation, certificates of title, UCC filing instruments, assignments and
endorsements) indicating assignment or endorsement to, or the existence of a
security interest in, a name that is a registered trade name of the Seller in
the relevant jurisdiction shall satisfy any requirement of these Standard Terms
that such documents reflect the name of the "Seller."
"Series": A separate Series of Certificates issued pursuant to a Pooling
------
and Servicing Agreement, which Series may, as provided therein, be divided into
two or more Classes.
"Servicer": OAC, as servicer of any of the Assets under any Pooling and
--------
Servicing Agreement, and its permitted successors and assigns thereunder.
"Servicer Contract File": As to each Contract, a file maintained by the
----------------------
Servicer that contains the related loan application and credit report, any
correspondence relating to the Contract, and all other instruments, documents,
papers, ledger cards, accounting records, and computer print-outs maintained by
the Servicer now or hereafter in connection with the servicing of the Contracts,
which may be maintained on microfilm or on computer-readable optical disk or on
any other medium selected by the Servicer.
"Servicer Custodial Certification": A certification executed by an Officer
--------------------------------
of the Servicer substantially in the form of Exhibit 1 hereto.
"Servicer File": As to any Asset, the related Servicer Contract File or
-------------
Servicer Mortgage Loan File, as applicable.
"Servicer Mortgage Loan File": As to each Mortgage Loan, a file maintained
---------------------------
by the Servicer that contains (1) an original Standard Hazard Insurance Policy
(and flood insurance policy, if required pursuant to Section 3.16 hereof)
relating to the underlying Mortgaged Property or a certificate of insurance
issued by the insurer or its agent indicating that a Standard Hazard Insurance
Policy (and a flood insurance policy, if required pursuant to Section 3.16
hereof) is in effect with respect to such Mortgaged Property, (2) originals or
copies of all documents submitted to a Mortgage Insurer for credit and property
underwriting approval, (3) the originals of all RESPA and Regulation Z
disclosure statements executed by the related Mortgagors, (4) the appraisal
report made in connection with the origination of the Mortgage Loan, (5) the
settlement statement for the purchase and/or refinancing of the underlying
Mortgaged Property by the related Mortgagor under the related Mortgage Note and
Mortgage, (6) the originals of any tax service contracts, (7) documentation
relating to any approvals by the Servicer of any modifications of the original
related Mortgage Loan Documents and any releases of collateral supporting the
related Mortgage Loan, together with copies of the documentation effecting any
such modifications or releases, (8) collection notices or form notices sent to
the
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related Mortgagor, (9) foreclosure correspondence and legal notifications, if
applicable, (10) water and irrigation company stock certificates, if applicable,
and (11) all other documents relating to such Mortgage Loan which would
customarily be maintained in a mortgage loan file by the Servicer in order to
service the mortgage loan properly, as well as any other documents relating to
such Mortgage Loan (other than Mortgage Loan Documents) that come into the
Servicer's possession.
"Servicing Account": As defined in Section 3.05 hereof.
-----------------
"Servicing Advances": Advances required to be made by the Servicer as
------------------
described in Section 3.04(a) hereof, including, but not limited to, advances for
the payment of personal property taxes, real estate taxes and premiums for
Standard Hazard Insurance Policies.
"Servicing Fee": On each Distribution Date, the product obtained by
-------------
multiplying (a) one-twelfth of the Servicing Fee Rate by (b) the aggregate
Scheduled Principal Balance of the Assets immediately prior to the preceding
Collection Period (without giving effect to any Principal Prepayments, Net
Liquidation Proceeds and Repurchase Prices received (or Realized Losses
incurred) on the day preceding the beginning of such Collection Period).
"Servicing Fee Rate": A per annum rate, to be specified in each Pooling
------------------
and Servicing Agreement.
"Shortfall": Due Date Interest Shortfall and Soldiers' and Sailors'
---------
Shortfall.
"Soldiers' and Sailors' Shortfall": Interest losses on a Contract or
--------------------------------
Mortgage Loan resulting from application of the Soldiers' and Sailors' Civil
Relief Act of 1940.
"Special Hazard Insurance Policy": An insurance policy covering a Contract
-------------------------------
or Mortgage Loan against loss by reason of fire, lightning, explosion, smoke,
windstorm, hail, riot, strike and civil commotion.
"Special Hazard Loss": A loss incurred on a Contract or Mortgage Loan
-------------------
attributable to physical damage to the related Manufactured Home or Mortgaged
Property of a type which is not covered by standard hazard insurance policies,
excluding losses caused by war, nuclear reaction, nuclear or atomic weapons,
insurrection or normal wear and tear.
"Special Tax Consent": The written consent of the Holder of a Residual
-------------------
Certificate to any tax (or risk thereof) arising out of a proposed transaction
or activity that may be imposed upon such Holder or that may affect adversely
the value of such Holder's Residual Certificate.
"Special Tax Opinion": An Opinion of Counsel that a proposed transaction
-------------------
or activity will not (a) affect adversely the status of the REMIC as a REMIC or
the related Regular Certificates as the regular interests therein, (b) affect
the timing or amount of distributions of interest or principal on such Regular
Certificates, or (c) result in the encumbrance of the Contracts by a tax lien.
"Standard Hazard Insurance Policy": With respect to each Contract, the
--------------------------------
policy of fire and extended coverage insurance (and any federal flood insurance,
if applicable) required to be maintained for the related Manufactured Home as
provided herein, which may be a blanket
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mortgage impairment policy maintained by the Servicer in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
"Standard Terms": These Standard Terms to a Pooling and Servicing
--------------
Agreement and all exhibits, schedules and appendices hereto, as amended and
supplemented from time to time.
"Startup Day": The Startup Day (within the meaning of Code section
-----------
860G(a)(9)) is the Closing Date.
"Tax Matters Person": The Person or Persons designated from time to time
------------------
hereunder to act as tax matters person (within the meaning of the REMIC
Provisions) of the REMIC.
"Terminating Purchase": The purchase of all Contracts and Mortgage Loans
--------------------
and each Repo Property and REO Property owned by a Trust pursuant to Section
9.01 hereof.
"Termination Account": An escrow account maintained by the Trustee into
-------------------
which any Trust funds not distributed on the Distribution Date on which the
earlier of (a) a Terminating Purchase or (b) the final payment or other
liquidation of the last Asset remaining in the Trust or the disposition of the
last Repo Property or REO Property remaining in the Trust is made are deposited.
The Termination Account shall be an Eligible Account.
"Termination Date": Any Distribution Date fixed for termination of the
----------------
Trust pursuant to the provisions of Sections 9.01 and 9.02 hereof.
"Termination Price": With respect to any Terminating Purchase, the greater
-----------------
of (1) the sum of (a) any Liquidation Expenses incurred by the Servicer in
respect of any Asset that has not yet been liquidated, (b) all amounts required
to be reimbursed or paid to the Servicer in respect of previously unreimbursed
Advances, plus (c) the sum of (i) 100% of the aggregate of the Unpaid Principal
Balance of each Asset remaining in the Trust on the day of such purchase, plus
accrued interest thereon at the related Asset Rate through the end of the
Interest Accrual Period relating to the Termination Date, plus (ii) the lesser
of (A) the aggregate of the Unpaid Principal Balances of each Asset relating to
any Repo Property or REO Property remaining in the Trust, plus accrued interest
thereon at the related Asset Rate through the end of the Interest Accrual Period
related to the Termination Date and (B) the current appraised value of any such
Repo Property or REO Property (net of Liquidation Expenses to be incurred in
connection with the disposition of such Repo Property or REO 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
xxxxxxxxxxxx X&X Advances made in respect of such Repo Property or REO Property
and (2) the aggregate fair market value of all of the assets of the Trust (as
reasonably determined in good faith by the Servicer as of the close of business
on the third Business Day preceding the date upon which notice of any such
purchase is furnished to Certificateholders pursuant to Section 9.01(c) hereof),
plus all previously xxxxxxxxxxxx X&X Advances made with respect to the Assets.
The fair market value of the assets of the Trust shall be deemed to include
accrued interest through the end of the Interest Accrual Period related to the
Termination Date at the applicable Asset Rate on the unpaid principal balance of
each Asset (including any Asset that became a Repo Property or REO Property,
which Repo Property or REO Property has not yet been disposed of by the
Servicer). The basis for any such valuation shall be furnished by the Servicer
to the Certificateholders upon request.
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"Terminator": The Person making a Terminating Purchase or causing such
----------
Terminating Purchase to be made.
"TIN": Taxpayer identification number.
---
"Title Insurance Policy": For any Mortgage Loan, an American Land Title
----------------------
Association mortgagee's mortgage loan title policy form 1970, or other form of
mortgagee's title insurance acceptable to FNMA or FHLMC for the jurisdiction in
which the subject property is located, including all riders and endorsements
thereto, insuring that the related Mortgage creates a valid first lien on the
underlying Mortgaged Property subject only to Permitted Encumbrances.
"Transferee Agreement": An agreement substantially in the form of Exhibit
--------------------
6 hereto.
"Treasury": The United States Department of the Treasury.
--------
"Trust": The trust created pursuant to the terms of a Pooling and
-----
Servicing Agreement.
"Trust Estate": The segregated pool of assets sold and assigned to a
------------
Trustee by OMI pursuant to the conveyance clause of any Pooling and Servicing
Agreement.
"Trustee": The bank or trust company identified as the trustee under any
-------
Pooling and Servicing Agreement.
"Trustee Mortgage Loan File": As to each Mortgage Loan, a file containing
--------------------------
all of the related Mortgage Loan Documents.
"UCC": The Uniform Commercial Code as in effect in any relevant
---
jurisdiction.
"Unpaid Principal Balance": With respect to any Asset, the outstanding
------------------------
principal balance payable by the related Obligor pursuant to the terms of such
Asset.
"U.S. Person": A Person other than a Non-U.S. Person.
-----------
"USAP": As defined in Section 3.13 hereof.
----
"VA": The United States Department of Veterans Affairs.
--
"VA Asset": An Asset guaranteed in whole or in part by the VA.
--------
"VA Guaranty": As to any VA Asset, VA's full or partial guaranty of
-----------
payment of amounts due thereunder.
"Voting Rights": With respect to any Certificate, the portion of the
-------------
voting rights of all of the Certificates of the related Series which is
allocated to such Certificate. Unless otherwise provided in the related Pooling
and Servicing Agreement, (a) if any Class of Certificates does not have a
Certificate Principal Balance or has an initial Certificate Principal Balance
that is less than or equal to 1% of the aggregate Certificate Principal Balance
of all the Certificates of its Series, then 1% of the Voting Rights for such
Series shall be allocated to each such Class, and the balance of the Voting
Rights for such Series shall be allocated among the remaining Classes of
Certificates of such Series in proportion to their respective Certificate
Principal Balances following the most recent Distribution Date, and (b) if no
Class of Certificates of such Series has
-26-
an initial Certificate Principal Balance less than 1% of the aggregate
Certificate Principal Balance of all Certificates of such Series, then all of
the Voting Rights for such Series shall be allocated among all the Classes of
Certificates of such Series in proportion to their respective Certificate
Principal Balances following the most recent Distribution Date. Voting Rights
allocated to each Class of Certificates shall be allocated among the
Certificates of such Class in proportion to the respective Percentage Interests
of the Holders thereof.
"Withholding Agent": The Trustee or its designated Paying Agent or other
-----------------
Person who is liable to withhold federal income tax from a distribution on a
Residual Certificate under sections 1441 or 1442 of the Code and the Regulations
promulgated thereunder.
"Writedown Amount": With respect to any Distribution Date for a Series,
----------------
the amount, if any, by which (1) the aggregate Certificate Principal Balance of
all Certificates of such Series, after all distributions have been made on such
Certificates on such Distribution Date, exceeds (2) the Pool Scheduled Principal
Balance of the related Assets for the next Distribution Date.
ARTICLE II
THE ASSETS
Section 2.01. Assignment of Assets.
Pursuant to a Pooling and Servicing Agreement, OMI has sold to the Trustee
without recourse all the right, title and interest of OMI in and to the Assets
identified in such Pooling and Servicing Agreement, any and all rights,
privileges and benefits accruing to OMI under the Sales Agreement(s) with
respect to such Assets (except any rights of OMI to fees payable by the Seller
under such Sales Agreement and provided that OMI shall retain its rights to
indemnification from the Seller under such Sales Agreement, but shall also
convey rights to such indemnification to the Trustee as its assignee), including
the rights and remedies with respect to the enforcement of any and all
representations, warranties and covenants under such Sales Agreements and assets
included or to be included in the related Trust for the benefit of the related
Certificateholders as set forth in the conveyance clause of the related Pooling
and Servicing Agreement. Such assignment includes all of OMI's rights to
payments due with respect to the Assets after the Cut-off Date.
Section 2.02. The Contracts.
(a) Servicer's Custody of Contract Files and Servicer Contract Files. The
----------------------------------------------------------------
parties to the Pooling and Servicing Agreement, by their execution thereof,
acknowledge the Servicer's appointment to serve as custodian of the Contract
Files and the Servicer Contract Files as described herein for the benefit of the
Certificateholders and the Trustee. The Servicer, by its execution of the
Pooling and Servicing Agreement, agrees to, and shall, retain possession of the
Contract File and the Servicer Contract File pertaining to each of the Contracts
on behalf of the Certificateholders and the Trustee. Without limiting the
foregoing, the Trustee acknowledges that, with respect to each Contract secured
by a Manufactured Home located in Virginia as to which the Trustee is identified
as first lienor on the related certificate of title, for purposes of Section
46.2-641 of the Virginia Code (as currently in effect), the Servicer is holding
such Contract and the related certificate of title as bailee and agent for the
Trustee as such first lienor.
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The Servicer shall hold each Contract and any other documents constituting
each Contract File and each Servicer Contract File that are in the possession of
the Servicer or that at any time come into the possession of the Servicer in
trust as custodian for the Holders of the Certificates, and the Servicer hereby
acknowledges and declares that it holds and will hold or has agreed to hold such
documents as custodian and as the bailee for, and for the exclusive use and
benefit of, the Holders of the Certificates in accordance with the terms of the
Pooling and Servicing Agreement, and shall make disposition thereof only in
accordance with the Pooling and Servicing Agreement. The Servicer shall
segregate and maintain continuous custody of all documents constituting the
Contract Files in its possession in secure and fireproof-rated locked files or
vaults in accordance with customary standards for such custody.
From time to time, OMI or the Seller shall deliver to the Servicer for
inclusion in the appropriate Contract File, the original Contract Documents for
any Contract to the extent that copies of such original documents were initially
included in such Contract File or in the event that only a copy of an
application for an original Contract Document was initially included among the
related Contract Documents. In addition, the Servicer shall add to the
appropriate Contract File any additional original documents received by the
Servicer that evidence a modification of the related Contract approved by OMI.
The Servicer shall maintain custody of the Contract Files and Servicer
Contract Files for each Series in its possession at its offices where the
Contract Files and Servicer Contract Files are presently maintained or at such
other offices of the Servicer in the State of North Carolina as the Servicer may
identify to the Trustee by written notice provided at least ten days prior to
the Servicer's change of the location of its custody of the Contract Files and
Servicer Contract Files. The Servicer may not move the location of its custody
of the Contract Files and Servicer Contract Files for any Series outside of the
State of North Carolina without first giving 30 days' prior written notice of
such relocation to each applicable Rating Agency and the Trustee and obtaining
each such Rating Agency's written confirmation that such relocation will not
result in any downgrading of any Certificates of such Series. Notwithstanding
the foregoing, the Servicer may temporarily move individual Contract Files or
any portions thereof without notice to the Trustee or any Rating Agency as may
be necessary for it to conduct collection and other servicing activities in
accordance with its customary practices and procedures. In acting as custodian
of the Contract Files, the Servicer agrees not to assert any ownership interests
in the Contracts or the Contract Files, and to indicate to any third parties,
promptly upon their inquiry to the Servicer, that the Contracts and the Contract
Files have been sold and assigned to the appropriate Trust.
(b) Review of Contract Files. Prior to the Closing Date, the Servicer's
------------------------
operations department will complete a review of all of the Contract Files
(including the certificates of title to, or other evidence of a perfected
security interest in, the related Manufactured Homes), confirming the accuracy
of the Contract Schedule delivered to the Trustee. On or before the Closing
Date, the Servicer shall deliver to the Trustee a Servicer Custodial
Certification signed by one of its Officers confirming that it is in possession
of the Contract File for each Contract identified on Schedule I to the Pooling
and Servicing Agreement, subject to any exceptions noted in a schedule to such
certificate. Such certification shall be substantially in the form of Exhibit 1
hereto.
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In giving its Servicer's Custodial Certification with respect to a Series,
the Servicer shall be under no duty or obligation (A) to inspect, review or
examine any such documents, instruments, securities or other papers to determine
that they or the signatures thereon are genuine, enforceable, or appropriate for
the represented purpose or that they have actually been recorded or that they
are other than what they purport to be on their face or (B) to determine whether
any Contract File should include any assumption agreement, modification
agreement or waiver agreement.
If the Servicer discovers any discrepancy between any Contract and the
Contract Schedule, or that any required Contract Document is defective or
missing from the related Contract File, in either case in a manner that is
materially adverse to the interests of the Certificateholders, it shall
immediately provide written notice to the Seller (unless the Seller is the
Servicer) and the Trustee of such discrepancy, incompleteness or defect. If the
Seller does not cure such discrepancy or such incomplete or defective Contract
File within 90 days after its receipt of written notice of such discrepancy,
incompleteness or defect, the Servicer shall take all steps within its power to
enforce the Trustee's right to require the Seller to repurchase the affected
Contract (or in the alternative to substitute for such Contract, if the
substitution will take place within two years after the Closing Date) pursuant
to the applicable Sales Agreement or, in the alternative (if the discrepancy
consists of an overstatement in the Contract Schedule of the Cut-off Date
Principal Balance of a Contract), to deposit cash into the related Certificate
Account in the amount of such overstatement of the Cut-off Date Principal
Balance of a Contract in the Contract Schedule (as described in the applicable
Sales Agreement).
(c) Security Interests in the Contracts, Manufactured Homes and Real
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Property.
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(1) Perfection of Trustee's Security Interest in Contracts. On or
prior to the Closing Date, the Servicer shall cause to be filed in all
appropriate UCC filing offices, UCC-1 financing statements describing the Trust
Estate (including the Contracts and payments due thereon after the Cut-off Date)
and proceeds thereof as "collateral" and (1) naming the Seller as "Debtor," OMI
as "Secured Party," and the Trustee as "Assignee," and (2) naming OMI as
"Debtor" and the Trustee as "Secured Party." Each financing statement shall bear
a statement on the face thereof indicating that the parties intend the financing
statement to evidence a true sale of chattel paper, but that if the transaction
is recharacterized as a loan from the Trustee to the Seller or as involving a
loan from the Trustee to OMI or from OMI to the Seller, the financing statement
is to perfect the Trustee's security interest in the chattel paper. The Servicer
shall cause to be filed all necessary continuation statements for each of the
aforementioned UCC-1 financing statements. Within one week after the Closing
Date, the Servicer will stamp the face of each Contract with the following
legend (with the name of the Trustee filled into each blank): "This Contract has
been assigned to ____________________, as Trustee pursuant to a Pooling and
Servicing Agreement among Oakwood Acceptance Corporation, Oakwood Mortgage
Investors, Inc. and ________________."
(2) Perfection of Trustee's Security Interest in Manufactured Homes.
So long as the Contract Documents for each Contract contain evidence of
perfection of either the Seller's, OMI's or the Trustee's security interest in
the related Manufactured Home, neither the Seller nor OMI shall be required to
cause notations to be made on any certificate or other document of title
relating to such Manufactured Home or to execute any transfer instrument
(including, without limitation, any UCC-3 assignments) relating to such
Manufactured Home,
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except under the limited circumstances described in Section 2.06(b) below.
Subject to the limitation described in the preceding sentence, the Servicer
shall take all steps necessary, at its own expense, to maintain perfection of
the Trustee's lien on each Manufactured Home to the extent the Servicer receives
notice of relocation, re-registration or sale thereof.
(3) Real Estate Assignments. The Contract Documents for each Land
Secured Contract are required to contain evidence that the Seller has record
title to the Real Property underlying such Land Secured Contract. Neither the
Seller nor OMI will be required to prepare, deliver or record any assignments to
OMI or the Trustee in recordable form for the Mortgages related to such Land
Secured Contracts. However, on or before the Closing Date, the Seller shall
deliver to the Trustee an executed power of attorney substantially in the form
of Exhibit 9 hereto, authorizing the Trustee to execute and record assignments
of Mortgages securing Land Secured Contracts from the Seller to the Trustee in
the event that recordation of such assignments becomes necessary for foreclosure
on the related Real Property by or on behalf of the Trustee. Pursuant to such
power of attorney, at the Servicer's instruction, the Trustee shall execute any
such assignments as are provided to the Trustee by the Servicer. After execution
of any such assignments, the Trustee shall redeliver such assignments to the
Servicer at the Servicer's expense. Any expenses incurred by the Servicer in
connection with the foregoing or in connection with its recordation of
assignments in preparation for a foreclosure on a Land Secured Contract shall
constitute Liquidation Expenses.
Section 2.03. The Mortgage Loans.
(a) Custody of Trustee Mortgage Loan Files. In connection with the
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transfer and assignment of the Mortgage Loans from OMI to the Trustee, OMI shall
deliver, or cause to be delivered, to the Trustee or its Custodian on or before
the Closing Date, a Trustee Mortgage Loan File containing each of the documents
listed in the definition thereof. If any Mortgage or an Assignment of a Mortgage
to the Trustee or any prior Assignment is in the process of being recorded on
the Closing Date, OMI shall cause each such original recorded document or
certified copy thereof, to be delivered to the Trustee or its Custodian promptly
following its recordation. OMI shall also cause to be delivered to the Trustee
any other original Mortgage Loan Document to be included in the Trustee Mortgage
Loan File if a copy thereof initially was delivered.
In lieu of recording an Assignment of any Mortgage for any Mortgage Loan,
OMI may deliver or cause to be delivered to the Trustee or its Custodian the
Assignment of the Mortgage from the Seller to the Trustee in a form suitable for
recordation, together with an Opinion of Counsel to the effect that recording is
not required to protect the Trustee's right, title and interest in and to the
related Mortgage Loan or, in case a court should recharacterize the sale of the
Mortgage Loans as a financing, to perfect a first priority security interest in
favor of the Trustee in the related Mortgage Loan. In the event that the
Servicer receives notice that recording is required to protect the right, title
and interest of the Trustee in and to any such Mortgage Loan for which
recordation of an Assignment has not previously been required, the Servicer
shall promptly notify the Trustee and the Trustee shall within five Business
Days of its receipt of such notice deliver, or cause to be delivered, each
previously unrecorded Assignment to the Servicer for recordation.
By its execution of the Pooling and Servicing Agreement for a Series, the
Trustee acknowledges and declares that it or the Custodian holds and will hold
or has agreed to hold all
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documents delivered to it from time to time with respect to a Mortgage Loan
underlying such Series and all other assets delivered to it or its Custodian and
that are included in the definition of "Trust Estate" in the related Pooling and
Servicing Agreement in trust for the exclusive use and benefit of all present
and future Certificateholders.
(b) Custody of Servicer Mortgage Loan Files. The Servicer has in its
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possession a Servicer Mortgage Loan File for each Mortgage Loan containing each
of the documents listed in the definition thereof. All such documents shall be
held by the Servicer in trust for the benefit of the Trustee on behalf of the
Certificateholders.
(c) Review of Trustee Mortgage Loan Files.
-------------------------------------
(1) Initial Certification. The Trustee shall, for the benefit of the
Certificateholders for any Series, review each related Trustee Mortgage Loan
File prior to the related Closing Date to ascertain that all documents required
to be included (based upon an electronic file delivered by the Servicer) in the
Trustee Mortgage Loan File are included therein, and shall deliver to OMI and
the Servicer on such Closing Date an Initial Certification with respect to each
underlying Mortgage Loan (except any Mortgage Loan that has been liquidated or
purchased from the related Trust prior to such Closing Date) to the effect that,
except as specifically noted on a schedule of exceptions thereto, (A) all
documents required to be contained in the Trustee Mortgage Loan File are in its
possession, (B) such documents have been reviewed by it and appear regular on
their face and relate to such Mortgage Loan, and (C) based on its examination
and only as to the foregoing documents, the information set forth on the related
Mortgage Loan Schedule accurately reflects information set forth in the Trustee
Mortgage Loan File.
(2) Final Certification. Prior to the first anniversary date of the
Closing Date for a Series, the Trustee shall deliver to OMI and the Servicer a
Final Certification evidencing the completeness of the Trustee Mortgage Loan
File for each Mortgage Loan, with any applicable exceptions noted on such Final
Certification.
(3) Certifications Generally. In giving each of the Initial
Certification and the Final Certification with respect to a Series, the Trustee
shall be under no duty or obligation (A) to inspect, review or examine any such
documents, instruments, securities or other papers to determine that they or the
signatures thereon are genuine, enforceable, or appropriate for the represented
purpose or that they have actually been recorded or that they are other than
what they purport to be on their face or (B) to determine whether any Trustee
Mortgage Loan File should include any assumption agreement, modification
agreement, written assurance or substitution agreement.
(4) Recordation Report. No later than the fifth Business Day of each
third month, commencing the fourth month following the month in which the
Closing Date for a Series occurs, the Trustee shall deliver to the Servicer a
Recordation Report for such Series, dated as of the first day of such month,
identifying those Mortgage Loans underlying such Series for which it has not yet
received (A) an original recorded Mortgage or a copy thereof certified to be
true and correct by the public recording office in possession of such Mortgage
or (B) an original recorded Assignment of the Mortgage to the Trustee and any
required intervening Assignments or a copy thereof certified to be a true and
correct copy by the public recording
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office in possession of such Assignment; provided, however, that the Trustee
shall not be required to provide a Recordation Report with respect to the
recordation of an Assignment for any Mortgage Loan for which there has been
delivered an Assignment in recordable form pursuant to Section 2.03(a) hereof
unless the Trustee has delivered such Assignment to the Servicer for
recordation, in which case, the Trustee shall deliver a Recordation Report as to
the status of such Assignment in accordance with this paragraph commencing in
the fourth month following the delivery of such Assignment to the Servicer for
recordation.
(5) Custodians. In lieu of taking possession of the Trustee Mortgage
Loan Files and reviewing such files itself, the Trustee may, in accordance with
Section 8.11 hereof, appoint one or more Custodians to hold the Trustee Mortgage
Loan Files for a Series on its behalf and to review them as provided in this
Section 2.03. OMI shall, upon notice of the appointment of a Custodian, deliver
or cause to be delivered all documents to the Custodian that would otherwise be
deliverable to the Trustee. In such event, the Trustee shall obtain from each
such Custodian, within the specified times, the Initial and Final Certifications
and the Recordation Reports with respect to those Mortgage Loans held and
reviewed by such Custodian and may deliver such Certifications and Reports to
OMI and the Servicer in satisfaction of the Trustee's obligation to prepare such
Certification and Reports. The Trustee shall notify the Custodian of any notices
delivered to the Trustee with respect to those Trustee Mortgage Loan Files.
(d) Recordation with Respect to Mortgage Loans. Notwithstanding any
------------------------------------------
provisions in these Standard Terms to the contrary, OMI shall cause, with
respect to each Mortgage Loan, Assignments of Mortgages to the Trustee to be
prepared and recorded with respect to all Mortgages not later than 365 calendar
days following the Closing Date, which recordation shall be an expense of OMI.
For each Mortgage for which an Assignment of Mortgage is not duly and timely
recorded as provided above, OMI shall cure, substitute or repurchase such
Mortgage pursuant to the provisions of 2.06 hereof, or provide to the Trustee an
Opinion of Counsel, in form and substance reasonably acceptable to the Trustee,
that recordation of such Assignment of Mortgage is not necessary is not required
to effect the transfer, assignment and conveyance of such Mortgage Loan by OMI
to the Trustee pursuant to the Pooling and Servicing Agreement. As evidence of
recordation, the Trustee shall be entitled to rely upon, among other things (i)
a certification from a title insurance company, (ii) an Opinion of Counsel,
(iii) a recorded Assignment or (iv) a clerk's receipt as to the recordation of
any or all of the Assignments.
Section 2.04. Representations and Warranties of the Trustee.
As of the Closing Date, the Trustee represents and warrants that (1) it
acquired the Assets on behalf of the Trust from OMI in good faith, for value,
and without notice or knowledge of any adverse claim, lien, charge, encumbrance
or security interest (including, without limitation, federal tax liens or liens
arising under ERISA), (2) except as permitted in the related Pooling and
Servicing Agreement and these Standard Terms, it has not and will not, in any
capacity, assert any claim or interest in the Assets, and (3) it has not
encumbered or transferred its right, title or interest in the Assets. The
representation and warranty made in clause (1) above with respect to the absence
of any adverse claim, lien, charge, encumbrance or security interest is made by
the Trustee without any independent investigation and without recourse or
warranty, except that the Trustee believes such representation and warranty to
be true.
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Section 2.05. Representations and Warranties as to Assets.
OMI represents and warrants to the Trustee, effective as of the Closing
Date, that the following information is true and correct in all material
respects:
(a) The information pertaining to each Asset set forth in the Asset
Schedule was true and correct at the date or dates respecting which such
information was furnished.
(b) OMI is the sole owner of, or holder of a perfected first priority
security interest in, each Asset.
(c) OMI acquired its ownership of, or security interest in, each such
Asset in good faith, for value without notice of any adverse claim.
(d) Except for the sale to the Trustee, OMI has not assigned any interest
or participation in each such Asset (or, if any such interest or participation
has been assigned, it has been released).
(e) OMI has full right to sell the Trust Estate to the Trustee.
It is understood and agreed that the representations and warranties set
forth in this Section 2.05 shall survive delivery of the respective Contract
Files to the Servicer as custodian for the Trustee and of the respective Trustee
Mortgage Loan Files to the Trustee or its Custodian and shall inure to the
benefit of the Trustee notwithstanding any restrictive or qualified endorsement
or assignment. Upon the discovery by OMI, the Servicer or the Trustee of a
breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the other parties to
the Pooling and Servicing Agreement. It is understood and agreed that the
obligations of OMI set forth in Section 2.06 to cure, substitute for or
repurchase a Contract constitute the sole remedies available to the
Certificateholders or to the Trustee on their behalf respecting a breach of the
representations and warranties contained in this Section 2.05. It is further
understood and agreed that OMI shall be deemed not to have made the
representations and warranties in this Section 2.05 with respect to, and to the
extent of, representations and warranties made, as to the matters covered in
this Section 2.05, by the Seller in the related Sales Agreement assigned to the
Trustee.
Section 2.06. Purchase or Substitution of Certain Assets.
(a) Breaches of Representations and Warranties and Incomplete or Defective
----------------------------------------------------------------------
Asset Files.
-----------
(1) Seller Breach. Upon discovery or receipt of notice of any
defective document in an Asset File, or of any breach by the Seller of any
representation, warranty or covenant hereunder or under the Sales Agreement,
which defect or breach materially and adversely affects the value of any Asset
or the interest of the Trust therein (it being understood that any such defect
or breach shall be deemed to have materially and adversely affected the value of
the related Asset or the interest of the Trust therein if the Trust incurs a
loss as a result of such defect or breach), the Trustee shall promptly notify
the Servicer of such defect or breach and direct the Servicer to request the
Seller of such Asset to cure such defect or breach. The Seller must cure such
defect or breach, or purchase such Asset from the Trustee on behalf of the
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Certificateholders, within 90 days after the date on which the Seller was
notified of such defect or breach. In lieu of purchasing any such Asset as
provided above, if so provided in the related Sales Agreement, the Seller may
cause such Asset to be removed from the Trust (in which case it shall become a
Replaced Asset) and substitute one or more Qualified Substitute Assets in the
manner and subject to the limitations set forth in Section 2.06(g) below.
Notwithstanding the foregoing, however, if such breach is a Qualification Defect
and one or more REMIC elections have been made with respect to the related
Trust, such cure, purchase or substitution must take place within 75 days of the
Defect Discovery Date. It is understood and agreed that enforcement of the
obligation of the Seller to cure or to purchase (or to substitute for) any Asset
as to which a material defect in a constituent document exists or as to which
such a breach has occurred and is continuing, in addition to the obligation of
the Seller to indemnify OMI and its assignees (including the Trust) for any
losses and damages incurred in respect of any such breach or defect, shall
constitute the sole remedy respecting such defect or breach available to the
Trustee on behalf of the Certificateholders. The Servicer shall use its best
efforts to enforce the Seller's obligations under its Sales Agreement to
repurchase or substitute for Assets affected by breaches of the Seller's
representations and warranties contained in its Sales Agreement, and to enforce
the Seller's obligations to indemnify the Trust (as the assignee of OMI under
the Sales Agreement) for any losses or damages it incurs as a result of breaches
of the Seller's representations and warranties contained in its Sales Agreement.
(2) Servicer Breach. In addition to taking any action required
pursuant to Section 7.01 hereof, upon discovery or notice of any breach by the
Servicer of any representation, warranty or covenant hereunder not covered by
Section 2.06(a)(1) above which materially and adversely affects the value of any
Asset or the interest of the Trust therein (it being understood that any such
defect or breach shall be deemed to have materially and adversely affected the
value of the related Asset or the interest of the Trust therein if the Trust
incurs a loss as a result of such defect or breach), the Trustee promptly shall
notify the Servicer of such breach. Upon receipt of such notification, the
Servicer shall cure such breach or shall purchase such Asset from the Trustee
within 90 days after the date on which the Servicer was notified of such breach.
Notwithstanding the foregoing, however, if such breach is a Qualification Defect
and one or more REMIC elections have been made with respect to the related
Trust, such cure or purchase must take place within 75 days of the Defect
Discovery Date.
In the event the Seller has breached a representation or warranty under its
Sales Agreement that is substantially identical to a representation or warranty
breached by the Servicer, the Servicer shall first proceed against the Seller.
If the Seller does not within 60 days after notification of the breach, take
steps to cure such breach or purchase or substitute for the Mortgage Loan, the
Servicer shall cure such breach or purchase the Mortgage Loan from the Trust as
provided in this Section 2.06(a)(2).
(3) OMI Breach. Within 90 days after the earlier of discovery or
receipt of notice by OMI of the breach of any of its representations or
warranties set forth in Section 2.05 above with respect to any Asset, which
breach materially and adversely affects the value of the Asset or the interest
of the Trust therein (it being understood that any such breach shall be deemed
to have materially and adversely affected the value of the related Asset or the
interest of the Trust therein if the Trust incurs a loss as a result of such
defect or breach), OMI shall (i) cure
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such breach in all material respects, (ii) purchase the Asset from the Trustee,
or (iii) remove such Asset from the Trust (in which case it shall become a
Replaced Asset) and substitute one or more Qualified Substitute Assets in the
manner and subject to the limitations set forth in Section 2.06(g) below.
Notwithstanding the foregoing, however, if such breach is a Qualification Defect
and one or more REMIC elections have been made with respect to the related
Trust, such cure, purchase or substitution must take place within 75 days of the
Defect Discovery Date.
(b) Failure to Retitle Manufactured Homes. Upon the occurrence of either
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of the following events:
-----------------------
(1) the rendering of judgment by a court of competent jurisdiction
that the Trustee does not have a perfected first-priority security interest in a
particular Manufactured Home because the Seller has not caused notations to be
made on any certificate or other document of title relating to such Manufactured
Home or has not executed any transfer instrument (including any UCC financing
statement or UCC-3 assignment) relating to such Manufactured Home, or
(2) the Servicer's receipt of written advice of counsel selected by
the Servicer from among the counsel used by the Servicer in the ordinary course
of its business to the effect that a court of competent jurisdiction sitting in
a jurisdiction in which some of the Manufactured Homes underlying the Contracts
are located has held that, solely because of the failure of a pledgor or
assignor of manufactured housing contracts (whose pledgee or assignee has
perfected its security interest in such contracts) to cause notations to be made
on any certificate or other document of title relating to a manufactured home
underlying the pledged contracts or to execute any transfer instrument
(including any UCC financing statement or UCC-3 assignment) relating to any such
manufactured home, a perfected first-priority security interest was not created
in a manufactured home underlying such contracts located in such jurisdiction in
favor of the pledgee or assignee, then the Servicer, at its expense, must
complete all appropriate remedial action with respect to the affected
Manufactured Home(s) within 180 days after the Servicer's receipt of written
notice of such judgment or of such written advice. If the Servicer fails to
complete all such remedial action with respect to any affected Manufactured Home
within such 180-day period, the Servicer must repurchase each related Contract
at the Repurchase Price therefor on or before the last Business Day of the
Prepayment Period ending on or immediately after the expiration of such 180-day
period in accordance with Section 2.05(f) below.
In connection with the foregoing obligation, the Servicer shall have no
obligation on an ongoing basis to seek any advice of counsel with respect to the
matters described in clause (2) of the preceding paragraph. However, the
Servicer shall seek advice with respect to such matters whenever information
comes to the attention of any of its executive officers which causes such
executive officer to determine that a holding of the type described in such
clause (2) might exist.
(c) Assignment Failure. If an Assignment to the Trustee of the Seller's
------------------
interest in a Mortgage securing a Mortgage Loan has not been recorded within one
year after the Closing Date for the related Series of Certificates (or in the
case of Mortgage Loans for which recordation of an Assignment was initially
waived but subsequently required pursuant to Section 2.03(a) hereof, within one
year after the Trustee's delivery of the Assignment to the Servicer for
recordation), the Servicer shall either (1) purchase the related Mortgage Loan
from the Trustee or (2) if there have been no defaults in the Monthly Payments
on such Mortgage Loan, deposit an
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amount equal to the Repurchase Price therefor into an escrow account maintained
by the Trustee (which account shall not be an asset of the Trust or any REMIC),
or shall enforce the related Seller's obligation under its Sales Agreement to
make such purchase or deposit. Any such amounts deposited to an escrow account,
plus any earnings thereon, shall (A) be released to the Servicer or Seller, as
the case may be, upon receipt by the Trustee of satisfactory evidence that the
Assignment has been recorded in the name of the Trustee or (B) be applied to
purchase the related Mortgage Loan in the event that the Servicer notifies the
Trustee that there has been a default thereon. Any amounts in the escrow account
may be invested in Eligible Investments at the written direction of the
Servicer.
(d) Converted Loans. Upon receipt of written notice from the Servicer of
---------------
the conversion of any Adjustable Rate Asset to a Converted Loan, the Trustee
shall direct the Servicer to enforce the related Seller's obligation set forth
in its Sales Agreement to purchase such Converted Loan from the Trustee, or the
Servicer shall repurchase such Converted Loan from the Trustee. In the event the
Servicer or Seller defaults upon its obligation to purchase any Converted Loan,
and, in the case of a Seller default, such default remains unremedied for a
period of five Business Days after written notice of such default shall have
been given by the Servicer to the Seller, then the Servicer shall use its best
efforts to cause such Converted Loan to be sold for settlement on the last day
of any month to any entity which the Servicer may in its sole discretion select.
The Servicer shall not cause a Converted Loan to be sold or otherwise
transferred to a Person other than the Servicer or Seller (or other Person who
has a pre-existing obligation to purchase such loan) unless (i) upon such sale
the Trust would receive a net amount at least equal to the Repurchase Price of
the Converted Loan and (ii) if the Repurchase Price of the Converted Loan
exceeds the related Basis Limit Amount, the Servicer receives an Opinion of
Counsel that such disposition of a Converted Loan will not result in the
imposition of a "prohibited transaction" tax (as such term is defined in the
Code) on any related REMIC or jeopardize its status as a REMIC. Any such
Converted Loan which is not purchased by the Servicer or the Seller and which
the Servicer is unable to sell as described in the second preceding sentence
shall remain in the Trust.
(e) Optional Purchase by Servicer of Defaulted Contracts. At any time
----------------------------------------------------
after a Contract has become and remains a Defaulted Contract, the Servicer may,
at its option, purchase such Defaulted Contract from the Trust at the Repurchase
Price therefor in accordance with Section 2.06(f) below.
(f) Manner of Repurchase. Any Asset purchased pursuant to Section 2.05(a),
--------------------
(b), (c), (d) or (e) hereof shall be purchased at the Repurchase Price for such
Asset. The Seller, OMI or the Servicer, as appropriate (any of the foregoing, a
"Repurchaser"), shall deposit into the Certificate Account, on the date of
purchase, the Repurchase Price for each Asset to be purchased. Upon such deposit
and upon being provided by the Repurchaser with appropriate instruments of
transfer or assignment, the Trustee shall execute and deliver such instruments
of transfer or assignment, in each case without recourse, as shall be necessary
to vest in the Repurchaser any Asset purchased hereunder, and the Trustee shall
deliver to the Repurchaser any Asset Documents relating to the repurchased Asset
that are in the Trustee's possession, whereupon the Trustee shall have no
further responsibility with regard to such Asset. Except as provided in this
Section 2.06(f), if a Repurchaser shall, in accordance with the foregoing,
purchase any Asset required by it to be purchased, neither the Trustee nor any
Certificateholder
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shall have any other remedy against such Repurchaser based on any
misrepresentation or breach of covenant or warranty of such Repurchaser with
respect to or resulting from any such Asset.
The Servicer will be responsible for determining the Repurchase Price for
any Asset (and the related Basis Limit Amount for any Converted Loan) to be
repurchased pursuant to this Section 2.06 and shall certify such amounts to the
Trustee at the time of any such purchase. If, for whatever reason, the Servicer
shall certify to the Trustee that there is a miscalculation of the amount to be
paid to the Trust, the Trustee shall from monies in the Distribution Account
return any overpayment that the Trust received as a result of such
miscalculation to the applicable Repurchaser upon the discovery of such
overpayment, and the Servicer shall collect from the applicable Repurchaser for
payment to the Trustee any underpayment that resulted from such miscalculation
upon the discovery of such underpayment. Recovery may be made either directly
or by set-off of all or any part of such underpayment against amounts owed by
the Trust to such Repurchaser.
Any Repurchaser shall indemnify and hold harmless the Trustee from and
against any and all losses or liabilities incurred by the Trustee (including any
such losses or liabilities arising from third-party claims) with respect to or
resulting from any repurchase hereunder.
(g) Manner of Substitution. Unless otherwise provided in the Pooling and
----------------------
Servicing Agreement, the right to substitute a Qualified Substitute Asset for
any Replaced Asset that is an asset of the Trust shall be limited to (1) in the
case of substitutions pursuant to Section 2.06(a) or 2.06(c), the two-year
period beginning on the Closing Date and (2) in the case of any other
substitution, the three-month period beginning on the Closing Date.
As to any Replaced Asset for which OMI or the Seller substitutes a
Qualified Substitute Asset or Assets, OMI or the Seller, as the case may be,
shall effect such substitution by delivering to the Trustee for such Qualified
Substitute Asset or Assets a complete Contract File or Trustee Mortgage Loan
File, as appropriate, together with an Officer's Certificate of OMI or the
Seller, as the case may be, to the effect that each such Qualified Substitute
Asset complies with the terms of the Pooling and Servicing Agreement. Monthly
Payments due with respect to Qualified Substitute Assets in the month of
substitution are not part of the Trust and will be retained by OMI or the
Seller, as the case may be. For the month of substitution, distributions to
Certificateholders will reflect the Monthly Payment due on such Replaced Asset
during the month in which the substitution occurs, and OMI or the Seller, as the
case may be, shall thereafter be entitled to retain all amounts subsequently
received in respect of such Replaced Asset. The Servicer shall amend the Asset
Schedule to reflect the removal of such Replaced Asset from the terms of the
Pooling and Servicing Agreement and the substitution of the Qualified Substitute
Asset or Assets. Upon such substitution, such Qualified Substitute Asset or
Assets shall be subject to the terms of the Pooling and Servicing Agreement in
all respects, including, in the case of a substitution effected by the Seller,
the representations and warranties included in the related Sales Agreement, and
in the case of a substitution effected by OMI, the representations and
warranties set forth in Section 2.05 above, in each case as of the date of
substitution. The Trustee shall, within five Business Days of its receipt of the
documents referred to above, effect the reconveyance of such Replaced Asset to
OMI or the Seller, as the case may be, in accordance with the procedures
specified above.
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For any month in which OMI or the Seller substitutes one or more Qualified
Substitute Assets for one or more Replaced Assets, the Servicer will determine
and notify the Trustee with respect to the amount (if any) by which the
aggregate Unpaid Principal Balance of all such Qualified Substitute Assets as of
the date of substitution is less than the aggregate Unpaid Principal Balance of
all such Replaced Assets (after application of Monthly Payments due in the month
of substitution) (the "Substitution Shortfall"). On the date of such
substitution, OMI or the Seller, as the case may be, will deliver or cause to be
delivered to the Trustee for deposit from its own funds into the Distribution
Account an amount equal to the Substitution Shortfall.
(h) Qualification Defect. If any Person required to cure, purchase, or
--------------------
substitute under Section 2.06(a) above for an Asset affected by a Qualification
Defect fails to perform within the time limit set forth in those subsections,
the Trustee shall dispose of such an Asset in such manner and for such price as
the Servicer advises the Trustee are appropriate, provided that the removal of
such Asset occurs no later than the 90th day from the Defect Discovery Date. It
is the express intent of the parties that an Asset affected by a Qualification
Defect be removed from the Trust before the 90th day from the Defect Discovery
Date so that the related REMIC or Pooling REMIC will continue to qualify as a
REMIC. Accordingly, the Trustee is not required to sell an affected Asset for
its fair market value nor shall the Trustee be required to make up any shortfall
resulting from the sale of such Asset. The person failing to perform under
Section 2.06(a) above shall be liable to the Trust for (1) any difference
between (A) the Unpaid Principal Balance plus accrued and unpaid interest
thereon at the applicable Asset Rate to the date of disposition and (B) the net
amount received by the Trustee from the disposition (after the payment of
related expenses), (2) interest on such difference at the Asset Rate from the
date of disposition to the date of payment and (3) any legal and other expenses
incurred by or on behalf of the Trust in seeking such payments. Except where the
Servicer is the person failing to perform, the Servicer shall pursue the legal
remedies of the Trust on the Trust's behalf and the Trust shall reimburse the
Servicer for any legal or other expenses of the Servicer related to such pursuit
not recovered from such person. If the Servicer is the person failing to
perform, the Trustee shall pursue the Trust's legal remedies against the
Servicer and the Trust shall reimburse the Trustee for its related legal or
other expenses.
(i) Notices. Any person required under this Section 2.06 to give notice or
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to make a request of another person to give notice shall give such notice or
make such request promptly.
ARTICLE III
ADMINISTRATION OF TRUSTS AND SERVICING OF THE ASSETS
SECTION 3.01. The Servicer.
The Servicer agrees to service the Assets for and on behalf of the Trustee
and its successors and assigns, and otherwise to perform and carry out the
duties, responsibilities and obligations that are to be performed and carried
out by the Servicer under the Pooling and Servicing Agreement. The Servicer
shall service the Contracts in accordance with the customary and usual
procedures of responsible financial institutions that service manufactured
housing retail installment sales contracts and installment loan agreements for
manufactured housing units located in the jurisdictions in which the
Manufactured Homes are located, except as otherwise expressly provided by the
Pooling and Servicing Agreement; provided, however, that the Servicer shall not
release or waive its right to collect the unpaid principal balance of any
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Contract. The Servicer shall service the Mortgage Loans (a) generally in
compliance with FNMA standards and (b) in a manner that is consistent with
prudent residential mortgage loan servicing standards generally accepted within
the residential mortgage loan servicing industry. The manner in which the
Servicer services the Assets shall be consistent with the manner in which the
Servicer services all manufactured housing retail installment sales contracts
and residential mortgage loans in its servicing portfolio, except for any
differences specifically required by the Pooling and Servicing Agreement. The
Servicer shall have full power and authority consistent with the aforementioned
standards, acting alone and/or through agents and designees as permitted by
Section 6.07 hereof, to do any and all things it may deem necessary or desirable
in connection with such servicing and administration; provided, however, that to
the extent the Servicer is prohibited by any applicable rule, regulation,
judicial or administrative determination or other order applicable to it from
carrying out any of its obligations or duties provided for herein or in any
document contemplated herein, such failure shall not constitute a breach of this
Agreement.
Section 3.02. Maintenance of Records; Inspection of Asset Files.
(a) The Servicer shall retain all data relating directly to or maintained
in connection with the servicing of the Assets for any Series at the address of
the Servicer set forth in Section 11.04 hereof or at such other place where the
servicing offices of the Servicer are located.
The Servicer shall permit the Trustee or any authorized agent of the
Trustee reasonable access, upon prior written notice to the Servicer, during the
Servicer's normal business hours, to the Asset Files, the Servicer Files, and
the Servicer's other records, if any, relating to the Assets for any related
Series. Any such examination of such files or records will be conducted in a
manner that does not unreasonably interfere with the Servicer's normal
operations or customer or employee relations. Without otherwise limiting the
scope of the examination the Trustee may make, the Trustee or its authorized
agents, using generally accepted audit procedures, may in their discretion
verify the status of each Asset and review the records relating thereto for
conformity to Remittance Reports prepared pursuant to Article IV hereof and
compliance with the standards represented to exist as to each Asset in the
Pooling and Servicing Agreement.
(b) At all times during the term hereof, the Servicer shall keep available
a copy of the Asset Schedule at its principal executive office for inspection by
Certificateholders.
(c) On or before the date of the Servicer's delivery of the Remittance
Report to the Trustee in any month, the Servicer will, upon the written request
of the Trustee, provide to the Trustee a list of outstanding Assets, setting
forth the Scheduled Principal Balance of each such Asset as of the preceding
Distribution Date.
(d) Notwithstanding the provisions of this Section 3.02, the Trustee shall
at no time have any duty or obligation to examine any records of the Servicer or
to recalculate or otherwise verify the accuracy of any certificate or report
prepared by the Servicer, and no implied duty to do so shall be asserted against
the Trustee.
(e) On or before the Closing Date for a Series, the Servicer shall deliver
to the Trustee a list of Officers of the Servicer (each a "Servicing Officer")
involved in, or responsible for, the administration and servicing of the Assets
underlying such Series, which list shall be
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amended from time to time as necessary by the Servicer by delivery of an amended
list of Servicing Officers to the Trustee.
Section 3.03. Collection of Payments on Assets; Servicing Delinquent Accounts.
(a) Continuously from the Cut-off Date until the earliest to occur of the
following with respect to each Asset sold to the Trust in connection with the
issuance of the Certificates: (i) the principal and interest on such Asset is
paid in full, (ii) such Asset is foreclosed and the related Manufactured Home or
Mortgaged Property is liquidated pursuant to Section 3.08 hereof, (iii) all of
the proceeds of a liquidating claim under the Standard Hazard Insurance Policy
relating to such Asset have been deposited to the Certificate Account, or (iv)
the Liquidation Proceeds relating to such Asset have been deposited to the
Certificate Account, the Servicer will proceed diligently and in a manner
consistent with its standards for servicing Assets described in Section 3.01
above, to collect all payments due under each Asset when such payments become
due and payable and to apply such payments in accordance with Sections 3.05,
3.06 and 3.07 hereof.
(b) The Servicer shall have reasonable discretion to extend appropriate
relief to Obligors who encounter hardship and who are cooperative and
demonstrate proper regard for their obligations. The Servicer may arrange with
such an Obligor to extend the payment schedule for the related Asset; provided,
however, that any such extension must be made in accordance with the Servicer's
standards for servicing Assets described in Section 3.01 above; and provided
further, that no such extensions may be made except to the extent (1) that the
Servicer has determined, in its reasonable judgment, that the Obligor is in
default or that default is reasonably foreseeable with respect to such Asset in
the absence of such relief, (2) that the Due Date for the final Monthly Payment
on such Asset is not extended beyond the latest Final Scheduled Distribution
Date for the related Series and (3) that the grant of such extension is
otherwise permissible under Section 10.02 hereof and the REMIC Provisions as in
effect at the time of such extension, as evidenced by an Opinion of Counsel
delivered by the Servicer to the Trustee. Where the Obligor is in default on an
Asset notwithstanding such relief and the Servicer has exhausted all reasonable
means of inducing the Obligor to pay on a timely basis, the Servicer shall begin
acceleration of the Assets in accordance with its terms and applicable laws.
Section 3.04. Advances and Compensating Interest.
(a) Servicing Advances. If any Obligor is in default in the payment of
------------------
premiums on its Standard Hazard Insurance Policy or Policies, the Servicer may
pay such premiums or taxes out of its own funds. If any Obligor is in default in
the payment of premiums on its Standard Hazard Insurance Policy or Policies and
coverage is not provided in respect of the related Asset under a blanket policy
maintained by the Servicer pursuant to Section 3.16(a) below, or if any Obligor
is in default in the payment of personal property taxes or real estate taxes due
in respect of its Manufactured Home or Mortgaged Property, the Servicer shall
pay such premiums or taxes out of its own funds in a timely manner, as Servicing
Advances, unless the Servicer, in its reasonable judgment, determines that any
such Servicing Advance would be a Non-Recoverable Advance. In addition, the
Servicer shall pay in a timely manner, as Servicing Advances, any and all
personal property taxes and real estate taxes due in respect of any Repo
Property or REO Property it holds on behalf of the Trust and all premiums for
any Standard Hazard Insurance Policy maintained for such Repo Property or REO
Property (except as similar coverage may be
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provided under a blanket policy maintained by the Servicer pursuant to Section
3.16 below) unless the Servicer, in its reasonable judgment, determines that any
such Servicing Advance would be a Non-Recoverable Advance.
(b) P&I Advances. If any Obligor fails to make its Monthly payment by the
------------
Remittance Date, the Servicer shall deposit such amount in the Distribution
Account on or before such Remittance Date, as a "P&I Advance," unless the
Servicer, in its reasonable judgment, determines that any such P&I Advance would
be a Non-Recoverable Advance, or such Monthly Payment can be offset by Early
Payments, as provided in Section 3.07(c) hereof. In addition, if the Certificate
Account is maintained with the Trustee, the Servicer may instruct the Trustee to
use any investment earnings on such account to defray its P&I Advance
obligation, and the Trustee shall honor any such instructions (including
standing instructions).
(c) Recovery of Advances. The Servicer shall be entitled to reimbursement
--------------------
for any P&I Advances made by it in respect of any Asset out of subsequent
collections in respect of any of the Asset in the related Trust Estate, and the
Servicer shall be entitled to reimbursement for any Servicing Advances made by
it in respect of any Asset out of subsequent collections in respect of late
collections from the related Obligor or from Insurance Proceeds, Liquidation
Proceeds or a Repurchase Price recovered by it in respect of such Asset
("Related Proceeds"), and, in addition, shall be entitled to reimburse itself
for unreimbursed Advances made that have become Non-Recoverable Advances in
accordance with Section 3.07(a)(1) below. Notwithstanding any other provision of
these Standard Terms to the contrary, the Servicer may assign or otherwise
transfer its right to reimbursement in respect of any Advances previously made
by such Servicer.
(d) Non-Recoverable Advances. If the Servicer does not make an Advance on
------------------------
the grounds that it is a Non-Recoverable Advance, or if an Advance previously
made by the Servicer is determined by the Servicer to have become a Non-
Recoverable Advance, then the Servicer shall provide the Trustee with an
Officer's Certificate stating this fact and stating the basis upon which the
Servicer determined that such Advance would be or was a Non-Recoverable Advance.
The Trustee shall not be responsible for determining whether any such
determination was reasonable.
(e) Compensating Interest. So long as OAC is the Servicer of any Assets,
---------------------
OAC as Servicer shall deposit into the Distribution Account for the related
Series on or before each Remittance Date an amount equal to Compensating
Interest for such month. Compensating Interest shall not be considered a Non-
Recoverable Advance, and the Servicer shall not be entitled to any recovery or
reimbursement from the Trustee or the Certificateholders for any Compensating
Interest.
Section 3.05. Servicing Account.
Within one Business Day after the Servicer's receipt of any amounts
collected on any Asset in its lock box maintained for the collection of amounts
payable under contracts serviced by it (including Net Liquidation Proceeds,
Insurance Proceeds and Repurchase Prices in respect thereof), the Servicer shall
deposit such collections, or cause such collections to be deposited, into a
clearing account established by the Servicer (the "Servicing Account"), which
shall be an Eligible Account. The Servicer may use the Servicing Account for
collection of payments on
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Assets underlying more than one Series and for assets that are not the subject
of any transaction covered by a Pooling and Servicing Agreement; provided, that
in any such event, the Servicer shall cause separate accounting and records to
be maintained within the Servicing Account with respect to the Assets underlying
each separate Series. Furthermore, the parties hereto agree that all amounts
deposited into the Servicing Account in respect of the Assets, other than
amounts payable to the Servicer as servicing compensation under the Pooling and
Servicing Agreement, are to be held in trust for the exclusive use and benefit
of the related Trust.
Section 3.06. Certificate Account.
(a) On or before the Closing Date, the Trustee shall establish a
collection account or accounts (the "Certificate Account"), which must be an
Eligible Account. The Certificate Account is to be held by or for the benefit of
the Trustee on behalf of the Certificateholders, and shall be either in the
Trustee's name or designated in a manner that reflects the custodial nature of
the account and that all funds in such account are held for the benefit of the
Trustee. The Trustee may elect to use a single Certificate Account for more than
one Series of Certificates provided, that in any such event, the Servicer shall
cause separate accounting and records to be maintained within the Certificate
Account with respect to each separate Series.
(b) The Servicer shall deposit into the appropriate Certificate Account on
a daily basis, and in no event later than two Business Days following deposit
thereof to the Servicing Account after the Servicer's collection thereof, all
payments and collections received by it on each Outstanding Asset on or after
the effective date of the related Pooling and Servicing Agreement (including Net
Liquidation Proceeds, Insurance Proceeds and Repurchase Prices in respect
thereof), except amounts collected in respect of Monthly Payments due on or
prior to the Cut-off Date. On or prior to the Closing Date, the Servicer shall
deposit into the Certificate Account all installments of principal and interest
due on the Assets after the Cut-off Date and received by the Servicer prior to
the Closing Date, plus each Principal Prepayment of any Asset (including any
related payment of interest) received by the Servicer on or after the Cut-off
Date but prior to the Closing Date.
(c) Amounts on deposit in the Certificate Account may be invested at the
direction of the Servicer in Eligible Investments, and earnings on amounts
deposited in such account shall be credited to the account of the Servicer as
servicing compensation in addition to the Servicing Fee and shall offset P&I
Advances due from the Servicer in respect of the Distribution Date next
succeeding the date on which such earnings were made or, in the alternative at
the Servicer's option, may be released to the Servicer on such Distribution
Date. The amount of any losses incurred in respect of any such investments shall
be deposited in the Certificate Account by the Servicer out of its own funds
immediately upon realization of any such losses.
Section 3.07. Withdrawals From Certificate Account; Remittance Amounts.
(a) Withdrawals from Certificate Account. The Servicer may withdraw funds
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on deposit in the Certificate Account for the following purposes:
(1) to reimburse itself for any Advances previously made by the
Servicer, which Advances remain unreimbursed to the Servicer, pursuant to the
provisions of Section 3.04(c) (including, without limitation, if such Advances
have been determined by the Servicer to
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have become Non-Recoverable Advances, out of any funds on deposit in the
Certificate Account);
(2) to pay any Servicing Fees and other servicing compensation
provided for herein due to the Servicer; provided, however, that if OAC is the
Servicer, it shall only be entitled to withdraw its Servicing Fee in respect of
any Distribution Date from the Certificate Account in accordance with this
clause to the extent the amounts on deposit in the Certificate Account and
attributable to the Available Distribution Amount for such Distribution Date
exceed the sum of all amounts to be distributed on the Certificates of the
related Series on such Distribution Date prior to the distribution to OAC of its
Servicing Fees as described in the related Pooling and Servicing Agreement in
the Section thereof entitled "Distributions"; and
(3) to enable the Servicer to remit the Remittance Amount to the
Trustee on each Remittance Date, as described in Section 3.07(b) below.
(b) Remittance Dates. On or prior to the Remittance Date for any
----------------
Distribution Date, the Servicer shall remit the Remittance Amount for such
Distribution Date to the Trustee, from and to the extent of the funds in the
Certificate Account, plus all required P&I Advances, by wire transfer or
otherwise, in immediately available funds, for deposit into the Distribution
Account. If the Certificate Account is maintained by the Trustee, on each
Remittance Date, the Servicer shall notify the Trustee as to the amount of the
related Remittance Amount and the amount of all required P&I Advances to be
covered by investment earnings on the Certificate Account, and the Trustee shall
transfer such amount from the Certificate Account to the Distribution Account on
the related Distribution Date. In such event, the Servicer shall still remit any
P&I Advances not covered by investment earnings on the Certificate Account to
the Trustee for deposit into the Distribution Account on the Remittance Date.
Notwithstanding the foregoing, if a Terminating Purchase is to be made on
such Distribution Date, and the Servicer shall have received the Termination
Price or shall be the Terminator, the Servicer shall remit the Termination Price
rather than the Remittance Amount to the Trustee for deposit into the
Distribution Account.
(c) Treatment of Early Payments. Early Payments received by the Servicer
---------------------------
shall be retained in the Certificate Account and transferred to the Distribution
Account when and as if such Early Payments had otherwise been received by the
Servicer as scheduled payments under the Assets. However, Early Payments on any
Assets for a Series on deposit in the Certificate Account that are not yet due
to be passed through to Certificateholders on any Distribution Date may be
remitted to the Distribution Account to offset delinquencies on other Assets for
the same Series. If Early Payments on any Asset are used to offset delinquencies
on other Assets, subsequent late recoveries of such delinquent amounts on such
other Assets shall be treated by the Servicer as a restoration of the Early
Payments used to offset such delinquent amounts and shall be deposited into the
Certificate Account in accordance with Section 3.06(a) hereof. The Servicer
shall maintain records with respect to its application of Early Payments.
Section 3.08. Realization upon Defaulted Assets.
(a) The Servicer shall repossess, foreclose upon or otherwise comparably
convert the ownership of any Manufactured Home and any related Real Property and
any Mortgaged
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Property securing an Asset that comes into and continues in default and as to
which no satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 3.03 hereof. 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 normal and
usual for responsible holders of retail installment sales contracts and
installment loan agreements for manufactured housing (in the case of defaulted
Contracts) and for responsible holders of residential, one- to four-family
mortgage loans (in the case of defaulted Mortgage Loans) and as shall be in
compliance with all applicable laws; provided, that such practices and
procedures shall be, in all circumstances, undertaken with a view toward
maximizing the amount of principal and interest recovered on the Assets.
(b) The Servicer may commence and prosecute any Proceedings in respect of
any Asset in default in its own name on behalf of the Trustee or, if the
Servicer deems it necessary, in the name of the Trustee. If the Servicer elects
to commence a Proceeding to enforce an Asset, the act of commencement shall be
deemed to entail an automatic assignment of the Asset to the Servicer for
purposes of collection only. If, however, in any enforcement suit or legal
proceeding in which the Servicer seeks to collect payments due on any Asset, it
is held that the Servicer lacks standing to enforce an Asset (or otherwise is
not permitted to enforce an Asset) on the grounds that it is not a real party in
interest or a holder entitled to enforce the Asset, the Trustee, on behalf of
the Certificateholders, shall take such steps as the Servicer deems necessary to
enforce the Asset, including bringing suit in its name or in the names of the
Certificateholders. Any such action by the Trustee shall be taken at the
Servicer's expense, but such expenses (including, without limitation, attorneys'
fees) shall be deemed Liquidation Expenses which the Servicer shall have no
obligation to incur to the extent it makes a good faith determination that such
Liquidation Expenses will not be recoverable out of Liquidation Proceeds of the
related Asset.
(c) In seeking to enforce the Assets, the Servicer may exercise any rights
of recourse against guarantors or sureties of any Obligor's obligations (or
against any other third parties against whom any rights of recourse exist in
connection with any Asset).
(d) The Servicer's obligations under this Section are subject to the
proviso that, in the case of damage to a Manufactured Home or a Real Property or
a Mortgaged Property, the Servicer shall not be required to expend its own funds
in making Liquidation Expenses to restore such property unless it shall
determine, in its reasonable judgment, (1) that such restoration will increase
the proceeds of liquidation of the related Asset, after reimbursement to the
Servicer for such expenses, and (2) that such Liquidation Expenses, if made,
will be recoverable out of Liquidation Proceeds of such Asset. If the Servicer
recovers any Insurance Proceeds or Liquidation Proceeds in respect of any Asset,
the Servicer may deduct the amount of any Insured Expenses and unreimbursed
Liquidation Expenses incurred by it in respect of such Asset from such gross
Insurance Proceeds and Liquidation Proceeds, respectively, prior to deposit of
such proceeds into the Certificate Account.
(e) Notwithstanding any of the foregoing, the Servicer shall not
repossess, foreclose upon or otherwise comparably convert the ownership of any
Manufactured Home, Real Property or Mortgaged Property securing an Asset in
cases where the Servicer has actual knowledge that the Manufactured Home, Real
Property or Mortgaged Property is situated on a toxic waste site as determined
by the United States Environmental Protection Agency or other comparable federal
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or state agency and where, in the good faith judgment of the Servicer, the
liabilities that would be imposed upon the Trust with respect to such toxic
waste site would exceed the Net Liquidation Proceeds that could be realized upon
liquidation of the related Asset. The Servicer shall have no affirmative duty or
obligation to determine whether any Manufactured Home, Real Property or
Mortgaged Property is situated on a toxic waste site.
Section 3.09. Title, Conservation, and Disposition of Repo Property and REO
Property.
(a) The Servicer shall maintain, protect, and insure any Repo Property or
REO Property acquired pursuant to Section 3.08 hereof, on behalf of the Trust,
in accordance with standard industry practice solely for the purpose of its
prompt disposition and sale and with a view toward maximizing the amount of
principal and interest recovered on the Assets. During any period in which the
Trust holds a Repo Property or REO Property, the Servicer shall not (1) lease
the Repo Property or REO Property, (2) authorize or permit any construction on
the Repo Property or REO Property, other than the completion of a building or
improvement thereon, and then only if more than 10% of the construction of such
building or other improvement was completed before default on the related Asset
became imminent, all within the meaning of section 856(e)(4)(B) of the Code, or
(3) allow the Repo Property or REO Property to be used in any trade or business
conducted by the Trust. If one or more REMIC elections are made with respect to
the assets of the Trust, the Servicer shall use its best efforts to dispose of
such Repo Property or REO Property for its fair market value by the end of the
tenth month of the third calendar year following the end of the calendar year in
which the Repo Property or REO Property was acquired by the Trust (the "REO
Holding Period"), pursuant to the Servicer's ordinary commercial practices. If
the Servicer is unable to sell such Repo Property or REO Property in the course
of its ordinary commercial practices within the REO Holding Period, the Servicer
shall (a) purchase such Repo Property or REO Property at a price equal to such
Repo Property's or REO Property's fair market value or (b) auction such Repo
Property or REO Property to the highest bidder in an auction reasonably designed
to produce a fair price (an "Auction") that takes place within one month after
the end of the REO Holding Period. If the Servicer and the Trustee either (1)
receive an Opinion of Counsel indicating that, under then-current law, the REMIC
may hold Repo Property or REO Property associated with a REMIC Asset for a
period longer than the REO Holding Period without threatening the REMIC status
of any related REMIC or causing the imposition of a tax upon any such REMIC or
(2) the Servicer applies for and is granted an extension of the REO Holding
Period pursuant to Code sections 860G(a)(8) and 856(e)(3) (the applicable period
provided pursuant to such Opinion of Counsel or such Code section being referred
to herein as an "Extended Holding Period"), upon the direction of OMI or the
Trustee, the Servicer shall continue to attempt to sell such Repo Property or
REO Property pursuant to its ordinary commercial practices until the date two
months prior to the expiration of the Extended Holding Period. If no REMIC
election has been made or is to be made with respect to the assets of the Trust,
the REO Holding Period for disposing of any Repo Property or REO Property as
described in the preceding two sentences shall be an eleven-month period. The
Servicer shall either sell any Repo Property or REO Property remaining after
such date in an Auction or purchase such Repo Property or REO Property (at the
price set forth in this paragraph) before the end of the Extended Holding
Period. In the event of any such sale of a Repo Property or REO Property, the
Trustee shall, at the written request of the Servicer and upon being supplied
with appropriate forms therefor, within five Business Days after its receipt of
the proceeds of such sale or auction, instruct the Servicer to release to the
purchaser the related
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Contract File and Servicer Contract File (in the case of a Repo Property), and
the Trustee shall release to the purchaser the related Trustee Mortgage Loan
File and shall instruct the Servicer to release to the purchaser the related
Servicer Mortgage Loan File (in the case of a Mortgage Loan), and in any event
the Trustee shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be necessary to vest in the
auction purchaser title to the Repo Property or REO Property, and shall deliver
to such purchaser any Asset Documents relating to such Contract that are in the
Trustee's possession, whereupon the Trustee shall have no further responsibility
with regard to any related Asset File or Servicer File. Neither the Trustee nor
the Servicer, acting on behalf of the Trust, shall provide financing from such
Trust to any purchaser of a Repo Property or REO Property.
(b) In the event that title to any Real Property or REO Property is
acquired, the deed or certificate of sale shall be issued to the Trustee for the
benefit of the Certificateholders. The Servicer shall, in accordance with
Section 3.09(a), use its reasonable efforts to sell any Repo Property or REO
Property as expeditiously as possible, but in all events within the time period,
and subject to the conditions set forth in Section 3.09(a) hereof. Pursuant to
its efforts to sell such Repo Property or REO Property, the Servicer shall
either itself or through an agent selected by the Servicer protect and conserve
such Repo Property or REO Property in the same manner and to such extent as it
customarily does in connection with its own repossessed manufactured homes or
mortgaged properties (as applicable), incident to its conservation and
protection of the interests of the Certificateholders.
(c) The Servicer shall deposit all net funds collected and received in
connection with the operation of any Repo Property or REO Property in the
applicable Certificate Account no later than the second Business Day following
receipt of such funds.
(d) The Servicer, upon the final disposition of any Repo Property or REO
Property, shall be entitled to reimbursement of any related unreimbursed
Advances related to the Asset for such Repo Property or REO Property as well as
any unpaid Servicing Fees from Liquidation Proceeds received in connection with
the final disposition of such Repo Property or REO Property, the latter in
accordance with the Sections of the related Pooling and Servicing Agreement that
are entitled "Distributions" and "Limited Right of Servicer to Retain Servicing
Fees from Collections."
(e) The final disposition of any Repo Property or REO Property shall be
carried carried out by the Servicer at the Repo Property's or REO Property's
fair market value under the circumstances existing at the time of disposition
and upon such terms and conditions as the Servicer shall deem necessary or
advisable, and as are in accordance with accepted servicing practices and in
accordance with Section 3.09(a) above.
(f) The Liquidation Proceeds from the final disposition of any Repo
Property or REO Property shall be deposited into the Certificate Account
promptly following receipt of such Liquidation Proceeds and, subject to such
withdrawals as may be permitted by Section 3.07(a) above, shall be transferred
to the Distribution Account pursuant to Section 3.07(b) above.
(g) The Servicer shall prepare and file reports of foreclosure and
abandonment in accordance with section 6050J of the Code.
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(h) Notwithstanding any other provision of this Agreement, the Servicer,
acting on behalf of the Trustee hereunder, shall not rent, lease, or otherwise
earn income or take any action on behalf of the Trust with respect to any REO
Property that might (i) cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of section 860G(a)(8) of the Code or
(ii) result in the receipt by any related REMIC of any "income from non-
permitted assets" within the meaning of section 860F(a)(2) of the Code or any
"net income from foreclosure property" within the meaning of section 860G(c)(2)
of the Code, both of which types of income are subject to tax under the REMIC
Provisions, unless the Trustee has received an Opinion of Counsel at the Trust's
expense (the costs of which shall be recoverable out of the applicable
Certificate Account), to the effect that, under the REMIC Provisions and any
relevant proposed legislation, any income generated for any related REMIC by the
REO Property would not result in the imposition of a tax upon such REMIC.
Without limiting the generality of the foregoing, the Servicer shall not:
(1) enter into, renew or extend any New Lease with respect to any REO
Property, if the New Lease by its terms will give rise to any income that does
not constitute Rents from Real Property;
(2) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(3) authorize or permit any construction on any REO Property, other
than the completion of a building or other improvement thereon, and then only if
more than ten percent of the construction of such building or other improvement
was completed before default on the related Mortgage Loan became imminent, all
within the meaning of section 856(e)(4)(B) of the Code; or
(4) Directly Operate, or allow any other Person (other than an
Independent Contractor) to Directly Operate, any REO Property on any date more
than 90 days after its acquisition date;
unless, in any such case, the Servicer has requested and received the Opinion of
Counsel described in the preceding sentence, in which case the Servicer may take
such actions as are specified in such Opinion of Counsel.
(i) The Servicer shall not acquire any personal property relating to any
Asset (other than the related Manufactured Home in connection with a Contract)
pursuant to this Section 3.09 unless either:
(1) such personal property is incident to real property (or to the
related Manufactured Home, in the case of a Contract) (within the meaning of
section 856(e)(1) of the Code) so acquired by the Servicer; or
(2) the Servicer shall have requested and received an Opinion of
Counsel, at the expense of the Trust (recoverable out of the Certificate
Account), to the effect that the holding of such personal property by the
related REMIC will not cause the imposition of a tax under the REMIC Provisions
on any REMIC related to the Trust or cause any such REMIC to fail to qualify as
a REMIC at any time that any Certificate is outstanding.
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Section 3.10. Full Prepayments and Liquidations; Trustee to Cooperate; Release
of Mortgage Files.
(a) Contracts. The Servicer shall determine when a Contract has been paid
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in full. Upon the liquidation of any Contract, the Servicer shall remit the
proceeds thereof to the related Certificate Account in accordance with Sections
3.05 and 3.06 above.
The Servicer is authorized to execute an instrument in satisfaction of any
Contract that is the subject of a Principal Prepayment in full, final
liquidation or other payment in full (as well as an instrument in satisfaction
of 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 Real Property
related thereto. Upon the Servicer's request, the Trustee shall, at the expense
of the Servicer, 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. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to a Certificate
Account or Distribution Account.
(b) Mortgage Loans. Upon the liquidation of any Mortgage Loan, the
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Servicer shall remit the proceeds thereof to the related Certificate Account in
accordance with Sections 3.05 and 3.06 above and shall deliver to the Trustee a
Request for Release requesting that the Trustee execute such instrument of
release or satisfaction as is necessary to release the related Mortgaged
Property from the lien of the related Mortgage. The Trustee shall, within five
Business Days of its receipt of such a Request for Release, release, or cause
the Custodian to release, the related Trustee Mortgage Loan File to the
Servicer. No expenses incurred in connection with any instrument of satisfaction
or deed of reconveyance shall be chargeable to a Certificate Account or
Distribution Account.
From time to time and as appropriate for the servicing or foreclosure of
any Mortgage Loan, including but not limited to, collection under any Title
Insurance Policy, Primary Mortgage Insurance Policy, flood insurance policy or
Standard Hazard Insurance Policy or to effect a partial release of any Mortgaged
Property from the lien of the related Mortgage, the Servicer shall deliver to
the Trustee a Request for Release. The Trustee shall, within five Business Days
after its receipt of such Request for Release, release, or cause the Custodian
to release, the related Trustee Mortgage Loan File to the Servicer. Any such
Request for Release shall obligate the Servicer to return each and every
document previously requested from the Trustee Mortgage Loan File to the Trustee
by the twenty-first day following the release thereof, unless (a) the Mortgage
Loan has been liquidated and the Liquidation Proceeds relating to the Mortgage
Loan have been deposited in the related Certificate Account or Distribution
Account or the Trustee Mortgage Loan File or such document has been delivered to
an attorney, or to a public trustee or other public official as required by law,
for purposes of initiating or pursuing legal action or other proceedings for the
foreclosure of the Mortgaged Property either judicially or non-judicially, and
the Servicer has delivered to the Trustee a certificate of the Servicer
certifying as to the name and address of the Person to which such Trustee
Mortgage Loan File or such document was delivered and the purpose or purposes of
such delivery. Upon receipt of an Officer's certificate of the Servicer stating
that such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation which are required to be
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deposited into the applicable Certificate Account or the Distribution Account
have been so deposited, or that such Mortgage Loan has become an REO Property,
the Request for Release shall be released by the Trustee to the Servicer.
(c) Trustee's Execution of Documents in connection with Foreclosures. Upon
----------------------------------------------------------------
written certification of the Servicer, the Trustee shall execute and deliver to
the Servicer court pleadings, requests for trustee's sale or other documents
necessary to the foreclosure or trustee's sale in respect of a Mortgaged
Property or Real Property or to any legal action brought to obtain judgment
against any Obligor on a Mortgage Note, Land Secured Contract or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by such Mortgage Note, Land Secured Contract or Mortgage or otherwise
available at law or in equity. Each such certification shall include a request
that such pleadings or documents be executed by the Trustee and a statement as
to the reason such documents or pleadings are required and that the execution
and delivery thereof by the Trustee will not invalidate or otherwise affect the
lien of the related Mortgage, except for the termination of such a lien upon
completion of the foreclosure proceeding or trustee's sale. Upon the request of
the Servicer, the Trustee shall execute and deliver to the Servicer one or more
limited powers of attorney that constitutes and appoints the Servicer as the
Trustee's true and lawful attorney-in-fact and agent with respect to the
commencement of certain actions, in the name and on behalf of the Trustee, for
the benefit of the Certificateholders, pursuant to the provisions hereof and to
execute and deliver, in the Trustee's name, place and stead such papers as
reasonably necessary or desirable to carry out the foregoing, at all times
consistent with the Pooling and Servicing Agreement.
Section 3.11. Maintenance of Security Interests and Other Liens in Manufactured
Homes.
At its own expense, the Servicer shall take such steps as are necessary to
maintain perfection of the security interest in the Seller, OMI or the Trustee
and the validity of any other lien created by each Contract in the related
Manufactured Home to the extent it receives notice of sale or reregistration of
such Manufactured Home. The Trustee hereby authorizes the Servicer to take such
steps as are necessary to reperfect such security interest in the event of the
relocation of a Manufactured Home or for any other reason; provided, that
nothing in this Section 3.11 shall be construed to limit the Servicer's
obligations under Section 3.12 below.
Section 3.12. Due-on-Sale Clauses and Assumption Agreements.
Upon learning of any conveyance or prospective conveyance of a Manufactured
Home or Real Property securing any Contract or of a Mortgaged Property securing
any Mortgage Loan, the Servicer may exercise its rights, subject to state law,
under any "due-on-sale" clause of the Contract, Mortgage Note or Mortgage
relating to such Manufactured Home or Mortgaged Property to demand immediate
payment in full of all amounts due under such Contract or Mortgage Loan. With
respect to Mortgage Loans, the Servicer will exercise such rights to the extent,
under the circumstances, and in the manner in which the Servicer enforces such
clauses with respect to other Mortgage Loans held in its portfolio, but will not
exercise such rights if prohibited by law from doing so.
If the Servicer determines not to enforce a "due-on-sale" clause with
respect to an Asset, the Servicer will enter into an assumption and/or
modification agreement with the person to whom the Manufactured Home or
Mortgaged Property has been conveyed in a form that is
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customary or appropriate in the Servicer's reasonable business judgment pursuant
to which such person becomes liable under the Asset and pursuant to which, to
the extent permitted by applicable law and deemed appropriate by the Servicer in
its reasonable judgment, the original Obligor remains liable on such Asset;
provided, that (a) the Servicer reasonably determines that permitting such
assumption by such person will not increase materially the risk of nonpayment of
amounts due under the related Asset, (b) such action is not prohibited by law
and will not affect adversely or jeopardize any coverage under any Insurance
Policy required to be maintained with respect to such Asset pursuant to the
Pooling and Servicing Agreement, (c) neither the Unpaid Principal Balance nor
the Asset Rate of the related Asset may be reduced and (d) if one or more REMIC
elections have been made with respect to the assets of the Trust, no other
material term of the related Asset (including, without limitation, the
amortization schedule or any other term affecting the amount or timing of
payments on such Asset) may be modified without an Opinion of Counsel to the
effect that such modification will not be treated, under the REMIC Provisions,
as an acquisition of the modified Asset by the REMIC in exchange for the
unmodified Asset on the date the modification occurs. The Servicer shall follow
its customary underwriting procedures prior to entering into any such assumption
agreement, including, without limitation, a satisfactory credit review of any
Person assuming such Asset.
Section 3.13. Annual Accountants' Certificate; Annual Statement as to
Compliance.
(a) The Servicer shall deliver to the Trustee, on or before December 30 of
each year, with respect to each Pooling and Servicing Agreement that the
Servicer entered into on or before the preceding September 30, an Officer's
Certificate signed by the President or any Vice President of the Servicer, dated
as of September 30 of the preceding year, stating that (1) a review of the
activities of the Servicer during the preceding 12-month period (or since the
Cut-off Date in the case of the first such Officer's Certificate relating to any
Trust) and of its performance under the Pooling and Servicing Agreement has been
made under such Officer's supervision and (2) to the best of such Officer's
knowledge, based on such review, the Servicer has fulfilled all its obligations
under the Pooling and Servicing Agreement throughout such year, or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such Officer and the nature and status thereof. A copy of such
certificate may be obtained by any other Holder who makes a request in writing
to the Trustee addressed to the Corporate Trust Office.
(b) In addition, on or before December 30 of each year, 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 Trustee and each applicable Rating Agency to the effect that
(1) such firm has audited the financial statements of the Servicer for the
Servicer's most recently ended fiscal year and issued its report thereon; (2)
such audit included tests of the records and documents relating to manufactured
housing installment sale contracts and mortgage loans serviced by the Servicer
for others in accordance with the requirements of the Uniform Single Attestation
Program for Mortgage Bankers, or any successor program promulgated by the
accounting profession ("USAP"); and (3) such other statements as are
contemplated under USAP, including, if called for under USAP, a statement as to
whether the Servicer's management's written assertion to such firm (which shall
be attached to the statement of such firm) that its servicing during the
applicable fiscal year complied with USAP's minimum servicing standards in all
material respects is fairly stated in all material respects. The
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audit tests referred to in clause (2) of the preceding sentence shall be applied
to manufactured housing installment sale contracts and mortgage loans serviced
under the Pooling and Servicing Agreement and/or, in the sole discretion of such
firm, manufactured housing installment sale contracts and mortgage loans
serviced under pooling and servicing agreements, trust agreements or indentures
substantially similar to the Pooling and Servicing Agreement (hereinafter
referred to as "Pooling Agreements"). For purposes of such statement, such firm
may assume conclusively that all Pooling Agreements under which the Servicer is
the servicer of manufactured housing installment sale contracts and mortgage
loans for a trustee relating to certificates evidencing an interest in
manufactured housing installment sale contracts and mortgage loans are
substantially similar to one another except for any such Pooling Agreement which
by its terms specifically states otherwise.
Section 3.14. Servicing Fees.
As compensation for the services provided for a Series (including servicing
of the related Assets and administration of the related Trust) and ordinary
expenses incurred by the Servicer under the Pooling and Servicing Agreement, on
each Distribution Date the Servicer shall be entitled to receive the Servicing
Fee on each Asset from amounts collected on such Asset. Except as otherwise
expressly provided in the Pooling and Servicing Agreement, the Servicer shall
perform all of the obligations to be performed by it under the Pooling and
Servicing Agreement at its expense and without cost or charge to the Trustee.
The Servicing Fee relating to any Asset shall be payable solely from the
interest portion of each Monthly Payment or other payment of or in respect of
interest collected by the Servicer in respect of such Asset, whether from the
proceeds of any judgment, writ of attachment or levy against the related Obligor
or its assets, or from funds received by the Servicer in connection with any
Principal Prepayment in full, from Insurance Proceeds or Liquidation Proceeds or
in connection with any purchase or repurchase of an Asset; provided, however,
that the Servicing Fee with respect to an Asset in any month shall be payable to
the Servicer out of amounts paid by the related Obligor toward the Monthly
Payment due on such Asset during such month only if the related Obligor has
remitted the entire amount of such Monthly Payment. The Servicer also shall be
entitled to additional servicing compensation as specified in Sections 3.06(c)
and 3.15 hereof. Unless otherwise provided in the Pooling and Servicing
Agreement for a Series, the Servicer may retain its Servicing Fee and any other
servicing compensation provided for in such Pooling and Servicing Agreement from
gross interest collections on the related Assets prior to depositing such
collections into the related Certificate Account.
Section 3.15. Late Charges; Prepayment Fees or Other Charges.
To the extent permitted by law, the Pooling and Servicing Agreement and the
terms of any Asset, the Servicer may collect and retain as additional
compensation any late charges, extension fees or similar fees provided for in
the Asset.
To the extent reasonable and permitted by the terms of any Asset and by
law, the Servicer may collect from the Obligors, and retain as additional
compensation, prepayment fees, assumption fees or any fees imposed in connection
with the replacement by such Obligor of the related Standard Hazard Insurance
Policy.
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Notwithstanding any other provisions of the Pooling and Servicing
Agreement, the Servicer shall not charge or impose upon any Obligor, nor seek to
charge or impose upon any Obligor, or assert a right to receive from any
Obligor, any fee, charge, premium or penalty that, if charged or collected,
would violate or contravene any law, including usury laws, or the terms of the
related Asset.
Section 3.16. Maintenance of Standard Hazard Insurance, Primary Mortgage
Insurance, and Errors and Omissions Coverage.
(a) Standard Hazard Insurance. Except as otherwise provided in this
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Section 3.16(a), the Servicer shall cause to be maintained with respect to each
Contract and Mortgage Loan one or more Standard Hazard Insurance Policies that
provide, at a minimum, the same coverage as that provided by a standard form
fire and extended coverage insurance policy that is customary for manufactured
housing or residential real property (as applicable) issued by a Qualified
Insurer, providing coverage in an amount at least equal to the lesser of (1) the
maximum insurable value of the related Manufactured Home or Mortgaged Property
or (2) the principal balance due from the Obligor under such Contract or
Mortgage Loan; provided, however, that in any event the amount of coverage
provided by each Standard Hazard Insurance Policy must be sufficient to avoid
the application of any co-insurance clause contained therein. As part of its
collection responsibilities, the Servicer shall proceed to collect the premiums
due on the Standard Hazard Insurance Policies from the Obligors in accordance
with the degree of skill and care that is customarily used for such purpose in
the manufactured home loan servicing industry (in the case of Contracts) and the
residential mortgage loan servicing industry (in the case of Mortgage Loans).
Each Standard 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. Any amounts received under any such policies shall be
deposited initially into the related Certificate Account and then deposited into
the related Distribution Account pursuant to Sections 3.06 and 3.07 hereof,
within the respective time frames specified in such Sections. If a Manufactured
Home or Mortgaged Property is located in a flood area identified by HUD pursuant
to the National Flood Insurance Act of 1968, as amended, the Servicer shall
cause to be maintained flood insurance providing coverage in the same amount as
that provided by the related Standard Hazard Insurance Policy with respect to
such Manufactured Home or Mortgaged Property, if and to the extent such flood
insurance coverage is available.
In lieu of causing individual Standard Hazard Insurance Policies to be
maintained with respect to each Manufactured Home and Mortgaged Property
pursuant to subsection (a) of this Section 3.16, the Servicer may, and with
respect to each Repo Property and REO Property shall, maintain one or more
blanket insurance policies, each issued by a Qualified Insurer, covering losses
on the Obligors' interests in the Assets relating to such Manufactured Homes and
Mortgaged Properties resulting from the absence or insufficiency of such
individual Standard Hazard Insurance Policies. The Servicer shall pay the
premium for any such policy on the basis described therein and shall pay any
deductible amount with respect to claims under such policy relating to the
Assets covered thereby. All amounts collected by the Servicer under any such
blanket policy and any payments by the Servicer of deductible amounts
thereunder, in each case relating to an Asset covered thereby, shall be
deposited initially into the Certificate Account pursuant to Sections 3.05 and
3.06 hereof (within the respective time frames specified in such Sections),
after payment to (or retention by) the Servicer of all Insured Expenses and
Liquidation
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Expenses incurred by it with respect to the Manufactured Home or Mortgaged
Property to which such recovery relates, as well as the amount of any Advances
made by the Servicer with respect to the related Asset that have not been
reimbursed to the Servicer.
(b) Primary Mortgage Insurance. The Servicer must maintain a Primary
--------------------------
Mortgage Insurance Policy in full force and effect on each Mortgage Loan, if
any, which is identified in the related Sales Agreement as being covered by a
Primary Mortgage Insurance Policy. Any such Primary Mortgage Insurance Policy
must insure the portion of the Unpaid Principal Balance of the related Mortgage
Loan that exceeds 75% of the value of the related Mortgaged Property (as set
forth in the appraisal obtained in connection with origination of the Mortgage
Loan) (the Mortgaged Property's "Initial Value") unless such Primary Mortgage
Insurance coverage has been waived in writing by OMI at the time it purchases
the Mortgage Loan or such Primary Mortgage Insurance is canceled under the
circumstances described below. If a covered Mortgage Loan provides for negative
amortization or the potential for negative amortization, the Primary Mortgage
Insurance Policy must also insure any increase in the Unpaid Principal Balance
of the Mortgage Loan from the original principal balance of the related Mortgage
Note. In the event that the rating assigned by any Rating Agency for any of the
related Certificates to the claims-paying ability of any related Mortgage
Insurer is reduced subsequent to the issuance of the related Certificates, the
Servicer will use its best efforts to replace each Primary Mortgage Insurance
Policy issued by the downgraded Mortgage Insurer with a new Primary Mortgage
Insurance Policy issued by an insurer whose claims-paying ability is acceptable
to OMI. The premium for any replacement policy shall not exceed the premium for
any replaced policy.
The Servicer may cancel the Primary Mortgage Insurance Policy maintained
with respect to any Mortgage Loan at the related Mortgagor's request if the
following conditions are met:
(1) The current Mortgage Loan-to-Value Ratio of the mortgage Loan
must be 80% or less. The current Mortgage Loan-to-Value Ratio must be calculated
by dividing the Unpaid Principal Balance of the Mortgage Loan by the Initial
Value of the related Mortgaged Property;
(2) The Mortgage Loan may not have been 30 days or more delinquent at
any time within the preceding twelve months; and
(3) There nay not have been any other default under the terms of the
Mortgage Loan at any time during the preceding twelve months; provided, however,
that the Servicer shall cancel or release any Primary Mortgage Insurance Policy
maintained with respect to any Mortgage Loan to the extent required under
applicable law.
The Servicer must take all steps necessary to ensure the payment by each
Mortgage Insurer of the maximum benefits available under the terms of the
related Primary Mortgage Insurance Policy. The Servicer must work diligently
with the Mortgage Insurer to determine whether such insurer will settle a claim
under a Primary Mortgage Insurance Policy by taking title to the related
Mortgaged Property or in some other manner. Upon receipt of any proceeds of a
Primary Mortgage Insurance Policy, the Servicer must deposit such proceeds into
the applicable Certificate Account in accordance with Sections 3.05 and 3.06
above.
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(c) Errors and Omissions Coverage; Fidelity Bond. The Servicer shall
keep in force throughout the term of the Pooling and Servicing Agreement a
policy or policies of insurance issued by a Qualified Insurer covering errors
and omissions in the performance of its obligations as Servicer hereunder,
including failure to maintain insurance as required by the Pooling and Servicing
Agreement, and a fidelity bond covering the Servicer's performance under the
Pooling and Servicing Agreement. Such policy or policies and bond shall be in
such form and amount as is generally customary among Persons that service a
portfolio of manufactured housing installment sales contracts and installment
loans having an aggregate principal amount of $100 million or more and which
Persons are generally regarded as servicers acceptable to institutional
investors.
ARTICLE IV
REMITTANCE AND REPORTING TO CERTIFICATEHOLDERS
Section 4.01. Remittance Reports.
On or before the third Business Day prior to each Distribution Date, the
Servicer shall prepare a statement containing the information specified below as
to such Distribution Date (a "Remittance Report") and deliver such statement to
the Trustee. The Trustee shall forward such report to the Certificateholders on
the related Distribution Date, by mail to the addresses of such
Certificateholders as listed in the Certificate Register on the preceding Record
Date. A Remittance Report for a Distribution Date for a Series shall identify
the following items:
(1) the aggregate amount of each of the following, stated
separately, with respect to the related Assets: (A) the amount of all scheduled
principal payments on the Assets relating to such Distribution Date, (B) the
principal components and interest components of all Monthly Payments made by the
Obligors on the Assets during the related Collection Period, (C) Principal
Prepayments (including related Net Insurance Proceeds) received by the Servicer
during the related Prepayment Period, (D) Liquidation Proceeds (including
related Insurance Proceeds) and Net Liquidation Proceeds (including related Net
Insurance Proceeds) received during the related Prepayment Period, (E) the
amount of any Repurchase Price paid by OMI, the Seller or the Servicer with
respect to any of the Contracts purchased by OMI, the Seller or the Servicer
pursuant to Section 2.06 hereof during the related Prepayment Period, (F) the
aggregate number of Repo Properties and the aggregate number of REO Properties
in the Trust as of the end of the related Prepayment Period and the aggregate of
the unpaid principal balances of the related Contracts and of the related
Mortgage Loans, (G) the aggregate number and the aggregate Unpaid Principal
Balance of Outstanding Contracts and Outstanding Mortgage Loans, that are (i)
delinquent one month (i.e., 30 to 59 days) as of the end of the related
Prepayment Period, (ii) delinquent two months (i.e., 60 to 89 days) as of the
end of the related Prepayment Period, (iii) delinquent three months (i.e., 90
days or longer) as of the end of the related Prepayment Period and (iv) as to
which repossession, foreclosure or other comparable proceedings have been
commenced as of the end of the related Prepayment Period, (H) the amount of
Realized Losses incurred on the Assets during the related Prepayment Period and
on a cumulative basis since the Cut-off Date (the latter expressed as a dollar
amount and as a percentage of the aggregate Cut-off Date Principal Balance)
(separately identifying any Obligor Bankruptcy Losses, Special Hazard Losses and
Fraud Losses, if they are separately allocated to the related Certificates), (I)
the aggregate Scheduled Principal Balance of the Contracts and the Mortgage
Loans and the number of Outstanding Contracts and Mortgage Loans, in each case
at the end of the related Collection
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Period, (J) the aggregate number and the aggregate Unpaid Principal Balance of
Outstanding Contracts and Outstanding Mortgage Loans for which the Obligor is
also a debtor, whether voluntary or involuntary, in a proceeding under the
Bankruptcy Code; and (K) the aggregate number and the aggregate Unpaid Principal
Balance of Outstanding Contracts and Outstanding Mortgage Loans for which the
Obligor is also a debtor, whether voluntary or involuntary, in a proceeding
under the Bankruptcy Code that are (i) delinquent one month (i.e., 30 to 59
days) as of the end of the related Prepayment Period, (ii) delinquent two months
(i.e., 60 to 89 days) as of the end of the related Prepayment Period, and (iii)
delinquent three months (i.e., 90 days or longer) as of the end of the related
Prepayment Period;
(2) the Available Distribution Amount for such Distribution Date;
(3) the amount of funds in the Distribution Account, if any, to be
allocated to pay Servicing Fees, to reimburse the Servicer for Advances made, to
reimburse OMI or the Servicer for expenses pursuant to Section 6.05 hereof, and
to refund any overpayment of a Repurchase Price for an Asset pursuant to Section
2.06(f) hereof;
(4) the amount of the Servicing Fee for the related Collection
Period;
(5) the aggregate amount of P&I Advances required to be made by the
Servicer with respect to such Distribution Date, together with a statement of
the amount, if any, of such required P&I Advances that the Servicer will not
make in respect of such Distribution Date and of any P&I Advances that will not
be made because they are Non-Recoverable Advances;
(6) the aggregate deposits into the Certificate Account relating to
such Distribution Date and the aggregate withdrawals from the Certificate
Account for each category of withdrawal specified in Section 3.07(a) hereof
relating to such Distribution Date;
(7) in the case of a Trust (or designated assets thereof) for which a
REMIC election has been or will be made, any other information required to be
provided to Certificateholders by the REMIC Provisions; and
(8) any items relating to a specific Series of Certificates specified
in the related Pooling and Servicing Agreement.
The Trustee shall maintain a telephone number which investors may call to
ascertain, on each Distribution Date, the Certificate Principal Balance of each
Class of Certificates and the then-current Pass-Through Rate applicable to each
such Class. Such number for any Series shall initially be as specified in the
Prospectus Supplement for such Series and may only be changed after the Trustee
notes the change in such number in writing on the Remittance Report it sends to
Certificateholders.
Within a reasonable period of time after the end of each calendar year, the
Trustee shall prepare and furnish a statement, from information provided by the
Servicer, containing the information concerning the amount of distributions of
interest and principal on the Regular Certificates and the amount of
distributions on the Residual Certificates, as well as any other information as
may be required by the Code or Regulations and that customarily would be
provided by a Trustee to Certificateholders in order to enable such
Certificateholders to prepare
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their federal income tax returns, to each Person who at any time during the
calendar year was a Certificateholder that constituted a retail investor or
other Certificateholder that requests such statement, aggregated for such
calendar year or 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 are in force.
Section 4.02. Distribution Account.
The Trustee shall establish and maintain a Distribution Account for the
benefit of the Certificateholders and shall deposit therein funds received with
respect to the Remittance Amount for each Distribution Date immediately upon
receipt thereof in accordance with Section 3.07(b) hereof. The Distribution
Account shall be an Eligible Account and shall be either held in the Trustee's
name or designated in a manner that reflects the custodial nature of the account
and that all funds in such account are held in trust for the benefit of the
Trustee.
The Servicer shall keep and maintain separate accounting, on an Asset-by-
Asset basis, for the purpose of justifying any payment to and from the
Distribution Account.
Section 4.03. Allocation of Available Distribution Amount.
On each Distribution Date for a Series, the Trustee shall withdraw all
monies on deposit in the related Distribution Account in accordance with the
related Remittance Report and shall distribute such amounts in the following
order of priority:
(1) to pay itself its monthly Trustee Fee;
(2) if OAC is not the Servicer, to pay the Servicer its monthly
Servicing Fee, to the extent not previously retained or withdrawn from the
Certificate Account by such Servicer or, if OAC is the Servicer, to pay OAC its
monthly Servicing Fee in respect of a Distribution Date, but only to the extent
that the amounts on deposit in the Certificate Account and attributable to the
Available Distribution Amount for such Distribution Date exceed the sum of all
amounts to be distributed on the Certificates of the related Series on such
Distribution Date prior to the distribution to OAC of its Servicing Fee, as
described in the related Pooling and Servicing Agreement in the Section thereof
entitled "Distributions";
(3) to reimburse the Servicer from any amounts on deposit in the
Distribution Account for any Advance previously made which has become a Non-
Recoverable Advance, or to reimburse the Servicer for any other Advance pursuant
to the provisions of Section 3.04(c), in either case to the extent not
previously retained or withdrawn from the Certificate Account by the Servicer;
(4) to reimburse OMI or the Servicer for expenses incurred by or
reimbursable to them pursuant to Section 6.05 hereof;
(5) to refund any overpayment of a Repurchase Price for an Asset
pursuant to Section 2.06(f) hereof; and
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(6) to distribute to the Certificateholders (or, if more than
one REMIC election has been made with respect to the Trust, to distribute to the
holders of the Regular Interests and the Residual Interest in the Pooling
REMIC), the Available Distribution Amount in accordance with the applicable
Pooling and Servicing Agreement.
Section 4.04. Compliance with Withholding Requirements.
Notwithstanding any other provisions of the Pooling and Servicing
Agreement, the Trustee shall comply with all federal withholding requirements
respecting payments of interest or principal to the extent of accrued original
issue discount on Certificates to each Holder of such Certificates who (a) is
not a "United States person," within the meaning of Code section 7701(a)(30),
(b) fails to furnish its TIN to the Trustee, (c) furnishes the Trustee an
incorrect TIN, (d) fails to report properly interest and dividends, or (e) under
certain circumstances, fails to provide the Trustee or the Certificateholder's
securities broker with a certified statement, signed under penalties of perjury,
that the TIN provided by such Certificateholder to the Trustee or such broker is
correct and that the Certificateholder is not subject to backup withholding.
The consent of such a Certificateholder shall not be required for such
withholding. In the event the Trustee does withhold the amount of any otherwise
required distribution from interest payments on the Assets (including principal
payments to the extent of accrued original issue discount) or P&I Advances
thereof to any Certificateholder pursuant to federal withholding requirements,
the Trustee shall indicate with any payment to such Certificateholders the
amount withheld. In addition, if any United States federal income tax is due at
the time a Non-U.S. Person transfers a Residual Certificate, the Trustee or
other Withholding Agent may (1) withhold an amount equal to the taxes due upon
disposition of such Residual Certificate from future distributions made with
respect to such Residual Certificate to the transferee thereof (after giving
effect to the withholding of taxes imposed on such transferee), and (2) pay the
withheld amount to the Internal Revenue Service unless satisfactory written
evidence of payment by the transferor of the taxes due has been provided to the
Trustee or such Withholding Agent. Moreover, the Trustee or other Withholding
Agent may (1) hold distributions on a Residual Certificate, without interest,
pending determination of amounts to be withheld, (2) withhold other amounts, if
any, required to be withheld pursuant to United States federal income tax law
from distributions that otherwise would be made to such transferee on each
Residual Certificate that it holds, and (3) pay to the Internal Revenue Service
all such amounts withheld.
Section 4.05. Reports of Security Principal Balances to the Clearing Agency.
If and for so long as any Certificate is held by the Clearing Agency,
before each Distribution Date, the Trustee shall give oral notice to the
Clearing Agency pursuant to the Clearing Agency's current guidelines (and shall
promptly thereafter confirm in writing) the following: (a) the amount of
interest and principal to be distributed on the Certificates of such Class on
the upcoming Distribution Date, as reported in the related Remittance Report,
(b) the Record Date for such distribution, (c) the Distribution Date for such
distribution and (d) the aggregate Certificate Principal Balance of each Class
of Certificates reported pursuant to clause (10) of Section 4.01 hereof in such
month.
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Section 4.06. Preparation of Regulatory Reports.
(a) Subject to the provisions of subsections (b) and (c) of this
Section 4.06, the Servicer shall prepare or cause to be prepared, on behalf of
the Trust, such supplementary and periodic information, documents and reports
(such information, documents or reports are referred to hereinafter as "Periodic
Reports") as may be required pursuant to Section 12(g) or Section 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), by the rules
and regulations of the Commission thereunder or as a condition to approval of
any application for relief ("Application for Relief") hereinafter referred to
and, in connection therewith, shall prepare such applications and requests for
exemption and other relief from such provisions as it may deem appropriate. The
Servicer shall be deemed to certify as to each Periodic Report that it conforms
in all material respects to applicable reporting requirements imposed by the
Exchange Act or is otherwise in form and content appropriate for filing with the
Commission. The Servicer is hereby authorized to and shall execute all such
Periodic Reports or Applications for Relief on the Trustee's behalf and file the
same with the Commission and other required filing offices, if any, on behalf of
the Trust.
(b) Within 30 days after the beginning of the first fiscal year of
any Trust during which its obligation to file Periodic Reports pursuant to the
Exchange Act shall have been suspended, the Servicer shall prepare, or cause to
be prepared, a notice on Commission Form 15 ("Form 15") and is hereby authorized
to and shall execute such Form 15 on the related Trustee's behalf; provided,
however, that the Servicer shall be under no obligation to prepare such notice
if the number of Certificateholders exceeds 300. The Servicer shall file any
notice on Form 15 with the Commission in accordance with the provisions of Rule
15d-6 under the Exchange Act.
(c) Notwithstanding any other provision of the Pooling and Servicing
Agreement, the Trustee has not assumed, and shall not by its performance
hereunder be deemed to have assumed, any of the duties or obligations of OMI or
any other Person with respect to (1) the registration of the Certificates
pursuant to the Securities Act, (2) the issuance or sale of the Certificates, or
(3) compliance with the provisions of the Securities Act, the Exchange Act, or
any applicable federal or state securities or other laws including, without
limitation, any requirement to update the registration statement or prospectus
relating to the Certificates in order to render the same not materially
misleading to investors.
(d) In connection with the Servicer's preparation of any Form 15 or
of any Periodic Report, the Trustee shall provide it with information which it
may reasonably request concerning the number and identity of the Holders
appearing on the Certificate Register maintained by the Certificate Registrar,
but the Trustee shall have no duty or obligation to provide information which
does not appear on the Certificate Register, including any information
concerning the ownership of Persons for whom a nominee is the Holder of record.
ARTICLE V
THE POOLING INTERESTS AND THE CERTIFICATES
Section 5.01. Pooling REMIC Interests.
If an election has been made to treat certain assets of the Trust as a
Pooling REMIC, the Pooling and Servicing Agreement will set forth the terms of
the Regular Interests and Residual
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Interest of the Pooling REMIC. Unless otherwise specified in the Pooling and
Servicing Agreement, (a) the Pooling REMIC Regular Interests will be "regular
interests" for purposes of the REMIC Provisions but will not constitute
securities or certificates of interest in the Trust; and (b) the Trustee will be
the owner of any such Regular Interests, which may not be transferred to any
person other than a successor trustee appointed pursuant to Section 8.08 hereof
unless the party desiring the transfer obtains a Special Tax Opinion.
Section 5.02. The Certificates.
The Certificates shall be designated in the Pooling and Servicing
Agreement. The Certificates in the aggregate will represent the entire
beneficial ownership interest in the Trust Estate (or in the Issuing REMIC, if
any). On the Closing Date, unless otherwise specified in the related Pooling
and Servicing Agreement, the aggregate Certificate Principal Balance of the
Certificates will not be less than the aggregate Unpaid Principal Balance of the
underlying Assets as of the Cut-off Date, after application of principal
payments due on or before such date, whether or not received. The Certificates
will be substantially in the forms annexed to the Pooling and Servicing
Agreement. Unless otherwise provided in the Pooling and Servicing Agreement,
the Certificates of each Class will be issuable in registered form. Each
Certificate will share ratably in all rights of the related Class.
Upon original issue, the Certificates shall be executed and delivered by
the Trustee and the Trustee shall cause the Certificates to be authenticated by
the Certificate Registrar to or upon the order of OMI upon receipt by the
Trustee of the Servicer Custodial Certification required by Section 2.02 hereof.
The Certificates shall be executed and attested by manual or facsimile signature
on behalf of the Trustee by an authorized Officer under its seal imprinted
thereon. Certificates bearing the manual or facsimile signatures of individuals
who were at any time the proper Officers of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates. No Certificate shall
represent entitlement to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose, unless there appears on such Certificate a
certificate of authentication substantially in the form provided in the Pooling
and Servicing Agreement (in the forms of Certificates attached thereto as
Exhibits) executed by the Certificate Registrar by manual signature, and such
certificate of authentication 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 execution, except
that those Certificates delivered on the Closing Date may be dated the Accrual
Date.
Section 5.03. Book-Entry Certificates.
(a) The Book-Entry Certificates will be represented initially by one
or more certificates registered in the name of CEDE & Co., as nominee of the
Clearing Agency. OMI, the Servicer and the Trustee may for all intents and
purposes (including the making of payments on the Book-Entry Certificates) deal
with the Clearing Agency as the authorized representative of the Beneficial
Owners of the Book-Entry Certificates for as long as those Certificates are
registered in the name of the Clearing Agency. The rights of Beneficial Owners
of the Book-Entry Certificates shall be limited to those established by law and
agreements between such Beneficial Owners and the Clearing Agency and Clearing
Agency Participants. The Beneficial
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Owners of the Book-Entry Certificates shall not be entitled to certificates for
the Book-Entry Certificates as to which they are the Beneficial Owners, except
as provided in subsection (c) below. Requests and directions from, and votes of,
the Clearing Agency, as Holder, shall not be deemed to be inconsistent if they
are made with respect to different Beneficial Owners. Without the consent of
OMI, the Servicer and the Trustee, a Book-Entry Certificate may not be
transferred by the Clearing Agency except to another Clearing Agency that agrees
to hold the Book-Entry Certificate for the account of the respective Clearing
Agency Participants and Beneficial Owners.
(b) Neither OMI, the Servicer nor the Trustee will have any liability
for any aspect of the records relating to or payment made on account of
Beneficial Owners of the Book-Entry Certificates held by the Clearing Agency,
for monitoring or restricting any transfer of beneficial ownership in a Book-
Entry Certificate or for maintaining, supervising or reviewing any records
relating to such Beneficial Owners.
(c) The Book-Entry Certificates will be issued in fully-registered,
certificated form to Beneficial Owners of Book-Entry Certificates or their
nominees, rather than to the Clearing Agency or its nominee, only if (1) OMI
advises the Trustee in writing that the Clearing Agency is no longer willing or
able to discharge properly its responsibilities as depository with respect to
the Book-Entry Certificates and OMI is unable to locate a qualified successor
within 30 days or (2) OMI, at its option, elects to terminate the book-entry
system operating through the Clearing Agency. Upon the occurrence of either such
event, the Trustee shall notify the Clearing Agency, which in turn will notify
all Beneficial Owners of Book-Entry Certificates through Clearing Agency
Participants, of the availability of certificated Certificates. Upon surrender
by the Clearing Agency of the certificates representing the Book-Entry
Certificates and receipt of instructions for re-registration, the Trustee will
reissue the Book-Entry Certificates as certificated Certificates to the
Beneficial Owners identified in writing by the Clearing Agency. Such
certificated Certificates shall not constitute Book-Entry Certificates. All
reasonable costs associated with the preparation and delivery of certificated
Certificates shall be borne by OMI.
Section 5.04. Registration of Transfer and Exchange of Certificates.
The Trustee shall cause to be kept at its Corporate Trust Office 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
transfers and exchanges of Certificates as herein provided. The Trustee will
initially serve as Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided.
If a Person other than the Trustee is appointed by the Trustee as
Certificate Registrar, such Person will give the Trustee prompt written notice
of the location, and any change in the location, of the Certificate Register,
and the Trustee shall have the right to inspect the Certificate Register at all
reasonable times and to obtain copies thereof, and the Trustee shall have the
right to rely upon a certificate executed on behalf of the Certificate Registrar
by an Officer thereof as to the names and addresses of the Holders of the
Certificates and the principal amounts and numbers of such Certificates.
Subject to Section 5.05 below, upon surrender for registration of transfer
of any Certificate at the Corporate Trust Office of the Trustee or at any other
office or agency of the
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Trustee maintained for such purpose, the Trustee shall execute and the
Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class of a like aggregate Percentage Interest.
At the option of the Certificateholders, each Certificate may be exchanged
for other Certificates of the same Class with the same and authorized
denominations and a like aggregate Percentage Interest, upon surrender of such
Certificate to be exchanged at any such office or agency. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute and
cause the Certificate Registrar to authenticate and deliver the Certificates
which the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for transfer or exchange shall (if so
required by the Trustee) be duly endorsed by, or be accompanied by a written
instrument of transfer in the form satisfactory to the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any transfer
or exchange of Certificates, 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 Certificates.
All Certificates surrendered for transfer and exchange shall be destroyed
by the Certificate Registrar.
The Trustee will (or will cause the Certificate Registrar to) provide
notice to the Trustee of each transfer of a Certificate, and will provide the
Trustee and Servicer with an updated copy of the Certificate Register on January
1 and July 1 of each year (or at such other time as the Servicer may request).
Section 5.05. Restrictions on Transfer.
(a) Securities Law Compliance. No transfer of any Private Certificate
shall be made unless that transfer is made pursuant to the provisions of this
Section 5.05. Any Holder of a Private Certificate that is not a Book-Entry
Certificate shall, and, by acceptance of such Certificate, does agree to,
indemnify OMI, the Trustee and the Servicer against any liability that may
result if any transfer of such Certificates by such Holder is not made in
accordance with federal and state laws and the provisions of this Section 5.05.
Neither OMI, the Trustee nor the Servicer is obligated to register or qualify
any Private Certificate under the Securities Act or any other securities law or
to take any action not otherwise required under these Standard Terms or the
related Pooling and Servicing Agreement. The Trustee shall not register any
transfer of a Private Certificate that is not a Book-Entry Certificate unless
and until the prospective transferee provides the Trustee with a Transferee
Agreement and a Rule 144A Agreement certifying to facts which, if true, would
mean that the proposed transferee is a Qualified Institutional Buyer, and unless
and until the transfer otherwise complies with the provisions of this Section
5.05; provided, however, that, no Rule 144A Agreement, Transferee Agreement or
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Opinion of Counsel shall be required in connection with a transfer of the
Private Certificates by a broker or dealer, if such broker or dealer was the
initial transferee, or to any affiliate of OMI.
No Rule 144A Agreement, Transferee Agreement or Opinion of Counsel shall be
required in connection with any Private Certificate that is a Book-Entry
Certificate, and no Rule
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144A Agreement, Transferee Agreement or Opinion of Counsel shall be required in
connection with any transfer of any Private Certificate to OMI, to any Affiliate
of OMI or to any Person involved in the organization or operation of a trust to
be formed by OMI or any of its Affiliate (each, a "Related Holder"), and the
transfer restrictions contained below shall apply to any such acquisition,
holding and disposition of such Private Certificates in lieu of the provisions
of first paragraph of this Section 5.05(a):
(1) The Private Certificates may not be offered or sold except to (i)
qualified institutional buyers in reliance on the exemption from the
registration requirements of the Securities Act provided by Rule 144A, or (ii) a
Related Holder in reliance on an exemption from the registration requirements of
the Securities Act.
(2) Each purchaser of the Private Certificates, other than a Related
Holder, will be deemed to have represented and agreed as follows (terms used in
this paragraph that are defined in Rule 144A under the Securities Act are used
herein as defined therein):
(i) the purchaser (I) is a qualified institutional buyer as
defined in Rule 144A (a "QIB"), (II) is aware that the sale to it is being made
in reliance on Rule 144A and (III) is acquiring such Private Certificates for
its own account or for the account of a QIB.
(ii) the purchaser understands that the Private Certificates are
being offered in a transaction not involving any public offering in the United
States within the meaning of the Securities Act, that the Private Certificates
have not been and will not be registered under the Securities Act and that (I)
if in the future it decides to offer, resell, pledge or otherwise transfer any
of the Private Certificates, such Private Certificates may be offered, resold,
pledged or otherwise transferred only to a person whom the seller reasonably
believes is a QIB in a transaction meeting the requirements of Rule 144A in
accordance with any applicable securities laws of any State of the United
States, and that (II) the purchaser will, and each subsequent holder is required
to, notify any subsequent purchaser of such Private Certificates from it of the
resale restrictions referred to in (I) above.
(iii) The purchaser understands that the Private Certificates
will bear a legend containing the transfer restrictions contained in Section
5.05(a)(2)(A) and (B).
OMI shall provide to any transferee Holder of a Rule 144A Certificate and
any prospective transferee designated by such Holder information regarding the
related Certificates and the related Assets and such other information as shall
be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for transfer of any such Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by Rule
144A, upon the request for such information by such Holder.
(b) ERISA Compliance.
(1) Book-Entry Certificates. No transfer of all or any portion of any
Class of Book-Entry Certificates that are ERISA Restricted Certificates shall be
made to a transferee that is a Plan Investor unless such transfer qualifies for
an exemption from application of the prohibited transaction provisions of
Sections 406 and 407 of ERISA and Section 4975 of the Code, and each Beneficial
Owner of such a Certificate shall be deemed to have represented, by virtue of
its acquisition of such a Certificate, either (i) that it is not a Plan Investor
or (ii) that an
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exemption from application of the prohibited transaction provisions of Sections
406 and 407 of ERISA and Section 4975 of the Code will apply to the acquisition,
holding and resale of such Certificates by the Beneficial Owner thereof and to
transactions in connection with the servicing, operation and management of the
Trust.
(2) Certificated Certificates. No transfer of all or any portion of
any Class of Certificates that (A) are not Book-Entry Certificates and (B) are
ERISA Restricted Certificates shall be made unless and until the prospective
transferee provides the Trustee and the Servicer with a properly completed and
executed Benefit Plan Affidavit, together with a Benefit Plan Opinion if
required in order to comply with such Affidavit. Notwithstanding anything else
to the contrary herein, any purported transfer of such a Certificate to or on
behalf of a Plan Investor without delivery of a Benefit Plan Opinion shall be
null and void.
(c) Residual Certificates. The Trustee shall not register any transfer of
a Residual Certificate (including any beneficial interest therein) unless it
shall have received the written consent of the Servicer. No Residual Certificate
may be transferred to a Disqualified Organization. The Servicer will not consent
to any proposed transfer or sale of a Residual Certificate (1) to any investor
that it knows is a Disqualified Organization or (2) if the transfer involves
less than an entire interest in a Residual Certificate, unless (A) the interest
transferred is an undivided interest or (B) the transferor or the transferee
provides the Servicer with an Opinion of Counsel obtained at its own expense to
the effect that the transfer will not jeopardize the REMIC status of any REMIC
consisting of assets of the Trust. The Servicer's consent to any transfer is
further conditioned upon the Servicer's receipt from the proposed transferee of
(x) a Residual Transferee Agreement, (y) a Benefit Plan Affidavit, and (z)
either (A) if the transferee is a Non-U.S. Person, an affidavit of the proposed
transferee in substantially the form attached as Exhibit 8-A to Exhibit 8 hereto
and a certificate of the transferor stating whether the Residual Certificate has
"tax avoidance potential" as defined in Treasury Regulations Section 1.860G-
3(a)(2), or (B) if the transferee is a U.S. Person, an affidavit in
substantially the form attached as Exhibit 8-B to Exhibit 8 hereto. In addition,
if a proposed transfer involves a Private Certificate, the transfer shall be
subject to the additional restrictions set forth in Section 5.05(a) above.
Notwithstanding the foregoing, no Opinion of Counsel shall be required in
connection with the initial transfer of the Residual Certificates or their
transfer by a broker or dealer, if such broker or dealer was the initial
transferee. Notwithstanding the fulfillment of the prerequisites described
above, the Servicer may withhold its consent to, or the Trustee may refuse to
recognize, a transfer of a Residual Certificate, but only to the extent
necessary to avoid a risk of disqualification as a REMIC of a REMIC consisting
of Trust assets or the imposition of a tax upon a REMIC. Any attempted transfer
in violation of the foregoing restrictions shall be null and void and shall not
be recognized by the Trustee.
If a tax or a reporting cost is borne by a REMIC consisting of Trust assets
as a result of the transfer of a Residual Certificate or any beneficial interest
therein in violation of the restrictions set forth in this Section, the
transferor shall pay such tax or cost and, if such tax or cost is not so paid,
the Trustee, upon notification from the Servicer, shall pay such tax or cost or
may pay such tax or reporting cost with amounts that otherwise would have been
paid to the transferee of the Residual Certificate (or beneficial interest
therein). In that event, neither the transferee nor the transferor shall have
any right to seek repayment of such amounts from OMI, the Trustee, the REMIC,
the Servicer, or the other Holders of any of the Certificates, and none of
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such parties shall have any liability for payment of any such tax or reporting
cost. In the event that a Residual Certificate is transferred to a Disqualified
Organization, the Servicer shall make, or cause to be made, available the
information necessary for the computation of the excise tax imposed under
section 860E(e) of the Code.
Section 5.06. Accrual of Interest on the Certificates.
Certificates entitled to receive interest in accordance with the related
Pooling and Servicing Agreement shall accrue interest at the applicable Pass-
Through Rates on the basis of a 360-day year consisting of twelve 30-day months
and on the assumption that each Interest Accrual Period consists of 30 days.
Section 5.07. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee or the
Certificate Registrar, or the Trustee and the Certificate Registrar receive
evidence to their satisfaction of the destruction, loss or theft of any
Certificate, and (b) there is delivered to the Trustee and the Certificate
Registrar such security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Trustee or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of the same
Class, tenor and denomination or Percentage Interest. 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 reasonable expenses (including the fees and
expenses of the Trustee and the Certificate Registrar) connected therewith.
Every new Certificate issued pursuant to this Section shall constitute complete
and indefeasible evidence of ownership in the Trust, as if originally issued on
the Closing Date, regardless of whether any destroyed, lost or stolen
Certificate in lieu of which such new Certificate was issued shall be found at
any time.
Section 5.08. Persons Deemed Owners.
Prior to due presentment for registration of transfer of any Certificate,
the Servicer, the Trustee and any agent of the Servicer or of the Trustee may
treat the Person in whose name any Certificate is registered on the Certificate
Register as the owner of such Certificate for the purpose of receiving
distributions on such Certificate and for all other purposes whatsoever (whether
or not such Certificate is overdue), and neither the Servicer, the Trustee nor
any agent of the Servicer or the Trustee shall be affected by notice to the
contrary.
Section 5.09. Appointment of Paying Agent.
The Trustee, at its own expense, may appoint a Paying Agent approved by OMI
for the purpose of making distributions to Certificateholders. The Trustee shall
cause such Paying Agent to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee that such Paying Agent will
hold all sums held by it for the payment to Certificateholders in an Eligible
Account in trust for the benefit of the Certificateholders entitled thereto
until such sums shall be paid to such Certificateholders. All funds remitted by
the Trustee to any such Paying Agent for the purpose of making distributions
shall be paid to
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Certificateholders on each Distribution Date and any amounts not so paid shall
be returned on such Distribution Date to the Trustee.
ARTICLE VI
OMI AND THE SERVICER
Section 6.01. Liability of OMI and the Servicer.
OMI and the Servicer each shall be liable in accordance with the terms of
the Pooling and Servicing Agreement only to the extent of the obligations
specifically imposed by the Pooling and Servicing Agreement and undertaken
hereunder by OMI or the Servicer, respectively.
Section 6.02. OMI's Representations and Warranties.
OMI represents and warrants to the Trustee, as of the date of a Pooling and
Servicing Agreement and as of the related Closing Date, as follows:
(a) OMI has been duly incorporated and is validly existing as a
corporation under the laws of the State of Nevada and is in good standing under
such laws, with full power and authority to own its properties and conduct its
business as now conducted by it and to enter into and perform its obligations
under the Pooling and Servicing Agreement, and has duly qualified to do business
as a foreign corporation and is in good standing under the laws of each
jurisdiction wherein it conducts any material business or in which the
performance of its duties under the Pooling and Servicing Agreement would
require such qualification.
(b) OMI has all requisite corporate power and authority to own its
properties and to conduct any and all business required or contemplated by the
Pooling and Servicing Agreement to be conducted by OMI and to perform the
covenants and obligations to be performed by it hereunder; the execution and
delivery by OMI of the Pooling and Servicing Agreement are within the corporate
power of OMI and have been duly authorized by all necessary corporate action on
the part of OMI; and neither the execution and delivery of the Pooling and
Servicing Agreement by OMI, nor the consummation by OMI of the transactions
herein contemplated, nor compliance with the provisions hereof by OMI, will (1)
conflict with or result in a breach of, or will constitute a default under, any
of the provisions of the articles of incorporation or by-laws of OMI or any law,
governmental rule or regulation, or any judgment, decree or order binding on OMI
or its properties, or any of the provisions of any indenture, mortgage, deed of
trust, contract or other instrument to which OMI is a party or by which it is
bound or (2) result in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, deed of trust, contract or other instrument.
(c) The Pooling and Servicing Agreement and all other documents and
instruments required or contemplated hereby to be executed or delivered by OMI
under the Pooling and Servicing Agreement have been duly authorized, executed
and delivered by OMI and, assuming due authorization, execution and delivery
thereof by all other parties thereto, constitute legal, valid and binding
agreements enforceable against OMI in accordance with their terms, subject, as
to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency
or other similar laws affecting creditors' rights generally from time to time in
effect and to general principles of equity.
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(d) No consent, approval, order or authorization of, or registration,
qualification or declaration with, any state, federal or other governmental
authority by OMI is required in connection with the authorization, execution or
delivery of the Pooling and Servicing Agreement or the performance by OMI of the
covenants and obligations to be performed by it hereunder.
(e) As of the Closing Date, no Proceedings are pending or, to the best of
OMI's knowledge, threatened against OMI that would prohibit its entering into
the Pooling and Servicing Agreement or performing its obligations under the
Pooling and Servicing Agreement, including assisting in the issuance of the
Certificates.
(f) OMI has obtained or made all necessary consents, approvals, waivers
and notifications of stockholders, creditors, lessors and other nongovernmental
persons, in each case, in connection with the execution and delivery of the
Pooling and Servicing Agreement, and the consummation of all the transactions
herein contemplated.
(g) OMI does not believe, nor does it have any reason or cause to believe,
that it cannot perform its obligations under the Pooling and Servicing
Agreement.
Upon discovery by any of OMI, the Servicer or the Trustee of a breach of
any of the foregoing representations, warranties and covenants that materially
and adversely affects the interest of the Certificateholders in any underlying
Asset, the party discovering such breach shall give prompt written notice
thereof (but in no event later than two Business Days following such discovery)
to the other parties hereto.
Section 6.03. Representations, Warranties and Covenants of the Servicer.
The Servicer hereby represents, warrants and covenants to the Trustee, as
of the date hereof and as of the Closing Date, as follows:
(a) The Servicer has been duly incorporated and is validly existing as a
corporation under the laws of the State of North Carolina (or the state of its
incorporation, if the Servicer is not OAC) and is in good standing under such
laws, with full power and authority to own its properties and conduct its
business as now conducted by it and to enter into and perform its obligations
under the Pooling and Servicing Agreement, and has duly qualified to do business
as a foreign corporation and is in good standing under the laws of each
jurisdiction wherein it conducts any material business or in which the
performance of its duties under the Pooling and Servicing Agreement would
require such qualification, except where the failure so to qualify would not
have a material adverse effect on the performance of its obligations under the
Pooling and Servicing Agreement. The Servicer holds all material licenses,
certificates, franchises, and permits from all governmental authorities
necessary for the conduct of its business and will have received no notice of
proceedings relating to the revocation of any such license, certificate or
permit, that, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would affect materially and adversely the conduct
of the business, results of operations, net worth or condition (financial or
otherwise) of the Servicer.
(b) The Servicer has all requisite corporate power and authority to own
its properties and to conduct any and all business required or contemplated by
the Pooling and Servicing Agreement to be conducted by the Servicer and to
perform the covenants and obligations to be performed by it hereunder; the
execution and delivery by the Servicer of the Pooling and
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Servicing Agreement are within the corporate power of the Servicer and have been
duly authorized by all necessary corporate action on the part of the Servicer;
and neither the execution and delivery of the Pooling and Servicing Agreement by
the Servicer, nor the consummation by the Servicer of the transactions herein
contemplated, nor compliance with the provisions hereof by the Servicer, will
(1) conflict with or result in a breach of, or will constitute a default under,
any of the provisions of the articles of incorporation or by-laws of the
Servicer or any law, governmental rule or regulation, or any judgment, decree or
order binding on the Servicer or its properties, or any of the provisions of any
indenture, mortgage, deed of trust, contract or other instrument to which the
Servicer is a party or by which it is bound or (2) result in the creation or
imposition of any lien, charge or encumbrance upon any of its property pursuant
to the terms of any such indenture, mortgage, deed of trust, contract or other
instrument.
(c) The Pooling and Servicing Agreement and all other documents and
instruments required or contemplated hereby to be executed or delivered by the
Servicer under the Pooling and Servicing Agreement have been duly authorized,
executed and delivered by the Servicer and, assuming due authorization,
execution and delivery thereof by all other parties thereto, constitute legal,
valid and binding agreements enforceable against the Servicer in accordance with
their terms, subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency or other similar laws affecting creditors' rights
generally from time to time in effect and to general principles of equity.
(d) No consent, approval, order or authorization of, or registration,
qualification or declaration with, any federal, state or other governmental
authority by the Servicer is required in connection with the authorization,
execution or delivery of the Pooling and Servicing Agreement or the performance
by the Servicer of the covenants and obligations to be performed by it
hereunder.
(e) No Proceedings are pending or, to the best of the Servicer's
knowledge, threatened against the Servicer that would prohibit its entering into
the Pooling and Servicing Agreement or performing its obligations under the
Pooling and Servicing Agreement, including assisting in the issuance of the
Certificates.
(f) The Servicer maintains an errors and omissions policy and fidelity
bond that covers the Servicer's performance under the Pooling and Servicing
Agreement and such policy and bond are in full force and effect.
(g) The Servicer has obtained or made all necessary consents, approvals,
waivers and notifications of stockholders, creditors, lessors and other
nongovernmental persons, in each case, in connection with the execution and
delivery of the Pooling and Servicing Agreement, and the consummation of all the
transactions herein contemplated.
(h) The Servicer does not believe, nor does it have any reason or cause to
believe, that it cannot perform its obligations under the Pooling and Servicing
Agreement.
Upon discovery by any of OMI, the Servicer or the Trustee of a breach of
any of the foregoing representations, warranties and covenants that materially
and adversely affects the interest of the Certificateholders in any underlying
Asset, the party discovering such breach shall
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give prompt written notice thereof (but in no event later than two Business Days
following such discovery) to the other parties hereto.
Section 6.04. Corporate Existence.
Subject to the provisions of the following paragraph, OMI and the Servicer
each will keep in full effect its existence, rights and franchises as a
corporation under the laws of the jurisdiction in which it is incorporated 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 the Pooling and
Servicing Agreement, any Certificates or any of the Assets included in the Trust
Estate, and to perform its duties under the Pooling and Servicing Agreement.
Any Person (a) into which OMI or the Servicer may be merged or
consolidated, (b) that may result from any merger, conversion or consolidation
to which OMI or the Servicer shall be a party, (c) that may succeed to the
business of OMI or the Servicer, or (d) to which OMI or the Servicer may
transfer all of its assets, shall be the successor to OMI or the Servicer
hereunder, respectively, without the execution or filing of any document or any
further act by any of the parties to the Pooling and Servicing Agreement,
anything herein to the contrary notwithstanding; provided, that any such
successor to the Servicer must agree in writing to be bound by each of the
Servicer's obligations hereunder and that each applicable Rating Agency must
deliver to the Trustee a letter to the effect that such successorship shall not
result in a downgrading of the rating initially assigned by the Rating Agency to
any Class of Certificates as to which OMI has requested a rating from such
Rating Agency.
Section 6.05. Limitation on Liability of OMI, the Servicer and Others.
Neither OMI, the Servicer nor any of the directors, officers, employees or
agents of any of OMI or the Servicer shall be under any liability to the Trust
or the Certificateholders and all such Persons shall be held harmless for any
action taken or for refraining from the taking of any action in good faith
pursuant to the Pooling and Servicing Agreement, or for errors in judgment;
provided, however, that this provision shall not protect any such Person against
any breach of warranties or representations made herein or against any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder. OMI, the Servicer and any of the directors,
officers, employees or agents of either OMI or the Servicer may rely in good
faith on any document of any kind which, prima facie, is properly executed and
submitted by any Person respecting any matters arising hereunder. Neither OMI
nor the Servicer shall be under any obligation to appear in, prosecute or defend
any legal action unless such action is related to its respective duties under
the Pooling and Servicing Agreement and such action in its opinion does not
involve it in any expense or liability, except as provided in Section 10.01(b)
hereof; provided, however, that OMI or the Servicer may each in its discretion
undertake any such action that it deems necessary or desirable with respect to
the Pooling and Servicing Agreement and the rights and duties of the parties
thereto and the interests of the Certificateholders thereunder if the
Certificateholders offer to OMI or the Servicer, as the case may be, reasonable
security or indemnity against the costs, expenses and liabilities that may be
incurred therein or thereby.
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Section 6.06. Servicer Resignation.
The Servicer shall not resign from the obligations and duties imposed on it
under the Pooling and Servicing Agreement, except (a) upon appointment of a
successor servicer and receipt by the Trustee of a letter from each applicable
Rating Agency that such a resignation and appointment will not, in and of
itself, result in a downgrading of any rated Certificates or (b) upon
determination by its Board of Directors that the performance of its duties under
the Pooling and Servicing Agreement is no longer permissible under applicable
law. Any such determination permitting the resignation of the Servicer shall be
evidenced by a resolution of its Board of Directors and an Opinion of Counsel to
such effect delivered to the Trustee. No such resignation shall become
effective until the Trustee or a successor servicer shall have assumed the
responsibilities and obligations of the Servicer in accordance with Section 7.02
hereof.
Section 6.07. Assignment or Delegation of Duties by the Servicer and OMI.
(a) The Servicer may at any time without notice or consent delegate
certain computational, data processing, collection and foreclosure duties
hereunder to any entity; provided, however, that the Trustee may subservice any
and all of its duties and responsibilities as a successor Servicer hereunder
should the Trustee become the successor Servicer. No such delegation shall
relieve the Servicer in any respect of its responsibility with respect to such
duties.
(b) Neither the Servicer nor OMI may assign the Pooling and Servicing
Agreement or any of its rights, power, duties or obligations hereunder (except
as provided in Sections 3.04(c) and 6.07(a) above), provided that the Servicer
and OMI may assign the Pooling and Servicing Agreement in connection with a
consolidation, merger, conveyance, transfer or lease made in compliance with
Section 6.04 hereof.
(c) Except as provided in Sections 6.04 and 6.06 hereof, the duties and
obligations of the Servicer and OMI under the Pooling and Servicing Agreement
shall continue until the Pooling and Servicing Agreement shall have been
terminated as provided in Section 9.01 hereof, and shall survive the exercise by
the Trustee of any right or remedy under the Pooling and Servicing Agreement, or
the enforcement by the Trustee of any provisions of the Pooling and Servicing
Agreement.
Section 6.08. OMI and Servicer May Own Certificates.
OMI, the Servicer and any Affiliate of the foregoing may in its individual
or any other capacity become the owner or pledgee of Certificates with the same
rights as it would have if it were not OMI, the Servicer or an Affiliate of OMI
or the Servicer.
Section 6.09. Protection of Trust Estate.
Except as limited by Section 2.02(c)(2), Section 2.02(c)(3) or Section
2.03(a) above, the Servicer will execute and deliver from time to time all
amendments to the Pooling and Servicing Agreement and all financing statements,
continuation statements, instruments of further assurance and other instruments
necessary or advisable in order to, and will take such other action as the
Trustee deems necessary or advisable in order to:
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(a) grant to the Trustee more effectively all or any portion of the Trust
Estate;
(b) preserve and defend the Trust's title to the Trust Estate and the
rights therein of the Trustee and the Holders of Certificates against the claims
of all persons and parties;
(c) maintain or preserve the lien (and the priority thereof) created by
the Pooling and Servicing Agreement or to carry out more effectively the
purposes hereof (including the filing of continuation statements under the UCC
as necessary);
(d) perfect, publish notice of, or protect the validity of any grant made
or to be made pursuant to the Pooling and Servicing Agreement; or
(e) enforce any of the related Asset Documents.
OMI and the Servicer each hereby designates the Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required pursuant to this Section 6.09; provided, that the
Trustee shall have no duty to determine whether the filing of any financing
statement shall be necessary or to file such statements except upon written
request of OMI or the Servicer. After execution of any continuation statement or
other instrument pursuant to this Section, the Trustee shall deliver such
instrument to the Servicer for filing. Promptly after filing any such instrument
or causing any such instrument to be filed, the Servicer shall deliver an
Officer's Certificate, signed by an Officer of the Servicer, to the Trustee
stating that such continuation statement or other instrument has been filed.
The Servicer shall pay or cause to be paid, on behalf of the Trust, any
taxes levied on the account of the ownership by the Trust of the related Assets.
Section 6.10. Performance of Obligations.
The Servicer shall not take any action, and will use its best efforts not
to permit any action to be taken by others, that would release any Person from
any of such Person's covenants or obligations under any of the related Asset
Documents or under any instrument included in the Trust Estate, or that would
result in the amendment, hypothecation, subordination, termination or discharge
of, or impair the validity or effectiveness of, any of the related Asset
Documents or any such instrument, except as expressly provided in the Pooling
and Servicing Agreement or such Asset Documents or other instrument or unless
such action will not adversely affect the interests of the Holders of the
Certificates.
ARTICLE VII
EVENT OF DEFAULT; TERMINATION OF SERVICING ARRANGEMENTS
Section 7.01. Events of Default.
Any of the following acts or occurrences shall constitute an Event of
Default by the Servicer:
(a) any failure by the Servicer to remit funds in the Certificate Account
to the Distribution Account or to make a required P&I Advance that is not deemed
by the Servicer to be a Non-Recoverable Advance, in either case as required by
Section 3.07(b) hereof, and the
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continuance of such failure unremedied for a period of five days after the date
upon which such deposit, payment or remittance was due;
(b) any failure on the part of the Servicer duly to observe or perform in
any material respect any of the covenants or agreements on the part of the
Servicer (other than covenants referred to in clause (a) above) contained in the
Certificates or in the Pooling and Servicing Agreement, which failure continues
unremedied for a period of 60 days after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given to the
Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of
Certificates of a Series entitled to at least 25% of the related Voting Rights;
(c) the issuance of 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 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, against the
Servicer, and the remaining of such decree or order in force undischarged or
unstayed for a period of 60 consecutive days;
(d) the Servicer's consent to the appointment of a conservator or 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 property of the Servicer; or
(e) the Servicer's (1) admission in writing of its inability to pay its
debts generally as they become due, (2) filing of a petition to take advantage
of, or commence a voluntary case under, any applicable insolvency or
reorganization statute, (3) making of an assignment for the benefit of its
creditors, or (4) voluntarily suspending payment of its obligations.
If an Event of Default concerning the Servicer shall occur hereunder, then,
and in each and every such case, so long as such Event of Default shall not have
been remedied or waived, the Trustee may, and at the direction of the Holders of
Certificates evidencing greater than 50% of the Voting Rights, shall, by notice
then given in writing to the Servicer, terminate all of the rights and
obligations of the Servicer as servicer. On and after the receipt by the
Servicer of any such written notice, all authority and power of the Servicer
hereunder, whether with respect to the Certificates (except its rights as a
Holder thereof) or the Contracts or otherwise, shall pass to and be vested in
the Trustee pursuant to and under this Section 7.01 (provided, however, that the
Servicer shall continue to be entitled to receive all amounts accrued and owing
to it as Servicer under the Pooling and Servicing Agreement on or prior to the
occurrence of a Event of Default specified in Section 7.01(a) above or, in the
case of any other Event of Default, on or prior to the date of such
termination); and, without limitation, the Trustee hereby is authorized and
empowered on behalf of the Servicer, as attorney-in-fact or otherwise, to
execute and deliver any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Contracts and related documents or otherwise.
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The Servicer shall cooperate with the Trustee in effecting the termination
of the responsibilities and rights of the Servicer hereunder, including, without
limitation, (1) transferring to the Trustee for administration by it of all cash
amounts that shall be held at the time by the Servicer for deposit, shall have
been deposited by the Servicer into the Servicing Account, the Certificate
Account or the Distribution Account, or shall be received thereafter with
respect to a Contract, and (2) the prompt provision to the Trustee (in no event
later than ten Business Days subsequent to its receipt of such notice of
termination) of all documents and records, electronic and otherwise, reasonably
requested by the Trustee or its designee in order for the Trustee or its
designee to assume and carry out the duties and obligations that otherwise were
to have been performed and carried out by the Servicer under the Pooling and
Servicing Agreement but for the termination of the Servicer.
Upon any termination of the Servicer pursuant to this Section, the Trustee
or its designee shall pay over to the Servicer that portion of any future
proceeds of the related Assets that, if it were acting hereunder at such future
time, it would be permitted to retain or withdraw from the Certificate Account
or Distribution Account in consideration of, or in reimbursement for, previous
services performed, or advances made, by it or for other matters for which it is
entitled to reimbursement pursuant hereto or to the terms of the Pooling and
Servicing Agreement. Prior to appointment of any successor Servicer, the
Trustee must notify the Rating Agency in writing of the identity of such
prospective successor.
Section 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Servicer receives a notice of termination
pursuant to Section 7.01 hereof or resigns pursuant to Section 6.06 hereof, the
Trustee shall be the successor in all respects to the Servicer in its capacity
as servicer under the Pooling and Servicing Agreement and in connection with the
transactions provided for herein and shall be subject to all the
responsibilities, duties and liabilities placed on the Servicer by the terms and
provisions hereof. As compensation therefor, the Trustee, except as provided in
Section 7.01 hereof, shall be entitled to such compensation (whether payable out
of the Distribution Account or otherwise), as the Servicer would have been
entitled to receive hereunder if no such notice of termination had been given,
as well as all protections and indemnification afforded the Servicer pursuant to
Section 6.05 above. Notwithstanding the above, the Trustee may, if it shall be
unwilling so to act, or shall, if it is legally unable so to act, appoint, or
petition a court of competent jurisdiction to appoint, any established housing
finance institution having a net worth of not less than $40,000,000 and the
regular business of which shall have included, for at least one year prior to
such appointment, the servicing of a portfolio of manufactured housing
receivables of not less than $100,000,000, as the successor to the Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer hereunder. No appointment of a successor to the
Servicer shall be effective until the assumption by the successor of all future
responsibilities, duties and liabilities of the Servicer under the Pooling and
Servicing Agreement. Pending appointment of a successor to the Servicer
hereunder, unless the Trustee is prohibited by law from so acting, the Trustee
or an Affiliate of the Trustee shall act as Servicer hereunder as provided
above. Notwithstanding any of the foregoing, the successor Servicer shall not be
required to purchase any Assets from the Trust pursuant to these Standard Terms
except (i) under Section 2.06(a)(2) hereof to the extent the obligation to
repurchase arose out of a breach of a representation, warranty or covenant by
the successor Servicer and (ii) under Section 2.06(b)
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hereof to the extent the Servicer's obligation to effect remedial action as
described in such Section arose after the successor Servicer began serving as
Servicer. It is understood that any predecessor Servicer shall remain liable for
any breaches of representations, warranties and covenants that it committed
while it was the Servicer, and shall remain responsible for effecting remedial
actions described in Section 2.06(b) hereof (and for repurchasing Assets
pursuant to such Section 2.06(b)) to the extent the obligation to undertake such
remedial action arose while such predecessor Servicer was the Servicer
hereunder.
In connection with the appointment of a successor Servicer, the Trustee may
make such arrangements for the compensation of such successor servicer out of
payments on the related Assets as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted the
Servicer under the terms of the Pooling and Servicing Agreement. The Trustee
and such successor servicer shall take such action, consistent with the Pooling
and Servicing Agreement, as shall be necessary to effectuate any such
succession.
Any successor to the Servicer shall maintain in force during the term of
its service as Servicer the policy or policies that the Servicer is required to
maintain pursuant to Section 3.16(c) hereof.
Upon any Event of Default described hereunder, the Trustee, in addition to
the rights specified in this Section, shall have the right, in its own name and
as "Trustee," to take all actions now or hereafter existing at law, in equity or
by statute to enforce its rights and remedies and to protect the interests of
the Certificateholders, and enforce the rights and remedies of the
Certificateholders (including the institution and prosecution of all judicial,
administrative and other proceedings and the filings of proofs of claim and debt
in connection therewith). No remedy provided for by the Pooling and Servicing
Agreement shall be exclusive of any other remedy, and each and every remedy
shall be cumulative and in addition to any other remedy and no delay or omission
to exercise any right or remedy shall impair any such right or remedy or shall
be deemed to be a waiver of any Event of Default. Amounts payable to the
Trustee to reimburse it for any expenses it incurs in connection with any
actions taken by it pursuant to this paragraph are intended to constitute
administrative expenses. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or vote for or accept or adopt on behalf
of any Certificateholder any plan of reorganization, arrangement, adjustment or
composition affecting the Certificates or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any
Certificateholder in any such Proceeding.
Notwithstanding anything else herein to the contrary, in no event shall the
Trustee be liable for any servicing fee or for any differential in the amount of
the servicing fee paid hereunder and the amount necessary to induce any
successor Servicer to act as successor Servicer under this Agreement and the
transactions set forth for herein.
For the purposes of this Section 7.02 and Section 7.03 hereof, the Trustee
shall not be deemed to have knowledge of a Default or an Event of Default
hereunder unless an Officer of the Trustee having direct responsibility for the
administration of the Pooling and Servicing Agreement has actual knowledge
thereof or unless written notice of any Event of Default is received by the
Trustee and such notice references the Certificates or the Trust.
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Section 7.03. Notifications to Servicer and to Certificateholders.
(a) Upon obtaining actual knowledge of any Default, the Trustee shall
promptly notify the Servicer and each Certificateholder (at their respective
addresses appearing in the Certificate Register) thereof.
(b) Upon any termination of, or appointment of a successor to, the
Servicer pursuant to Section 7.02 hereof, the Trustee shall give prompt written
notice thereof to the Certificateholders at their respective addresses appearing
in the Certificate Register.
(c) As soon as practicable after the Trustee's obtaining knowledge of the
occurrence of an Event of Default, the Trustee shall transmit by certified mail
to all Holders of the Certificates (at their respective addresses appearing in
the Certificate Register) notice of such Event of Default or occurrence known to
the Trustee, unless such Event of Default shall have been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee.
If an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by the Pooling and Servicing
Agreement, and shall 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. Prior to the occurrence of an Event of Default or after all
Events of Default which may have occurred have been cured or waived, the Trustee
shall exercise such of the rights and powers vested in it by the Pooling and
Servicing Agreement, and shall use the same degree of care and skill in their
exercise, as a corporate trustee would exercise or use under the circumstances
in the administration of a corporate trust agreement.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any provision
of the Pooling and Servicing Agreement, shall examine them to determine whether
they conform to the requirements of the Pooling and Servicing Agreement;
provided, however, that the Trustee shall be under no duty to recalculate,
verify or recompute the information provided to it hereunder by OMI or the
Servicer. If any such instrument is found not to conform to the requirements of
the Pooling and Servicing Agreement in a material manner, the Trustee shall take
action as it deems appropriate to have the instrument corrected, and if the
instrument is not corrected to the Trustee's satisfaction, the Trustee will
provide notice thereof to the related Certificateholders.
No provision of the Pooling and Servicing 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, however, that:
(a) prior to the occurrence of an Event of Default with respect to the
Servicer of which the Trustee has notice or knowledge, and after the curing or
waiver of any such Event of Default, the duties and obligations of the Trustee
shall be determined solely by the express provisions of the Pooling and
Servicing Agreement, the Trustee shall not be liable except for the
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performance of such duties and obligations as are specifically set forth in the
Pooling and Servicing Agreement, no implied covenants or obligations shall be
read into the Pooling and Servicing Agreement against the Trustee and, in the
absence of bad faith on the part of the Trustee, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee
that conform to the requirements of the Pooling and Servicing Agreement;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by an Officer of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Holders of Certificates of a Series entitled to at least 25% of
the related Voting Rights relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under the Pooling and Servicing Agreement;
(d) any determination of negligence or bad faith of the Trustee shall be
made only upon a finding that there is clear and convincing evidence (and not
upon the mere preponderance of evidence) thereof in a proceeding before a court
of competent jurisdiction in which the Trustee has had an opportunity to defend;
and
(e) in no event shall the Trustee be held liable for the actions or
omissions of the Servicer or OMI (excepting the Trustee's own actions as
Servicer), and in connection with any action or claim or recovery sought against
the Trustee based upon facts involving the acts or omissions of the Servicer or
OMI, or involving any allegation or claim of liability or recovery against the
Trustee by the Servicer or by OMI, the Trustee shall not be held to a greater
standard of care than the Servicer or OMI would be held in such situation.
Except as specifically required herein, the Trustee shall not be required
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it, unless such risk or liability relates to its
ordinary services hereunder.
Section 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01 hereof:
(1) In the absence of bad faith, the Trustee may rely, and shall be
protected in acting or refraining from acting in reliance upon, any resolution,
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. Further, the Trustee may accept a copy of the vote
of the Board of Directors of any party certified by its clerk or assistant clerk
or secretary or assistant secretary as conclusive evidence of the authority of
any person to act in accordance with such vote, and such vote may be considered
as in full force and effect until receipt by the Trustee of written notice to
the contrary.
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(2) The Trustee may rely, in the absence of bad faith on its part,
upon a certificate of an Officer of the appropriate Person whenever in the
administration of the Pooling and Servicing Agreement the Trustee shall deem it
desirable that a matter be proved or established (unless other evidence be
prescribed herein specifically) prior to taking, suffering or omitting any
action hereunder.
(3) The Trustee may consult with counsel and the written advice of
such 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 written advice or Opinion of
Counsel.
(4) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by the Pooling and Servicing 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 the Pooling and Servicing Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby.
(5) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document, unless requested in writing to do so by the Holders of Certificates
of a Series entitled to at least 25% of the related Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of such
investigation, in the opinion of the Trustee, is not assured to the Trustee by
the security afforded to it by the terms of the Pooling and Servicing Agreement,
the Trustee may require indemnity against such expense or liability as a
condition to taking any such action. The expense of every such examination shall
be paid by the Servicer or, if paid by the Trustee, shall be repaid by the
Servicer upon demand.
(6) The Trustee may execute any of the trusts or powers under the
Pooling and Servicing Agreement or perform any duties hereunder either directly
or by or through agents, attorneys or co-trustees and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it under the Pooling and Servicing
Agreement.
(7) Whenever the Trustee is authorized herein to require acts or
documents in addition to those required to be provided it in respect of any
matter, it shall be under no obligation to make any determination as to whether
such additional acts or documents should be required unless obligated to do so
under Section 8.01 hereof.
(8) The Trustee shall not be deemed to have notice or knowledge of
any matter, including, without limitation, any Event of Default, unless one of
its Officers having direct responsibility for the administration of the Pooling
and Servicing Agreement has actual knowledge or record thereof or unless written
notice thereof is received by the Trustee at the Corporate Trust Office and such
notice references the Certificates generally, OMI, the Trust or the Pooling and
Servicing Agreement.
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(9) The Trustee shall not be personally liable 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 the Pooling and
Servicing Agreement.
(10) The permissive right or authority of the Trustee to take any
action enumerated in the Pooling and Servicing Agreement shall not be construed
as a duty or obligation.
Certificateholders shall have rights to institute suits, actions or
proceedings in equity or at law upon or under or with respect to the Pooling and
Servicing Agreement only under the circumstances described in the third
paragraph of Section 11.03 hereof.
(b) All rights of action under the Pooling and Servicing Agreement or
under any of the Certificates enforceable by the Trustee may be enforced by it
without the possession of any of the Certificates, or the production thereof at
the trial or other Proceeding relating thereto, and any such suit, action or
Proceeding instituted by the Trustee shall be brought in its name for the
benefit of all the Holders of the Certificates, subject to the provisions of the
Pooling and Servicing Agreement.
Section 8.03. Trustee Not Liable for Certificates or Assets.
The recitals contained in the Pooling and Servicing Agreement and in the
Certificates (other than the signature and countersignature of the Trustee on
the Certificates) shall be taken as the statements of OMI or the Servicer and
the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations or warranties as to the validity or sufficiency of the
Pooling and Servicing Agreement or of the Certificates (other than the signature
and countersignature of the Trustee on the Certificates) or of any underlying
Asset or related document. The Trustee shall not be accountable for the use or
application by OMI of any of the Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Servicer in
respect of the underlying Assets or deposited in or withdrawn from the Servicing
Account, the Certificate Account or the Distribution Account other than any
funds held by or on behalf of the Trustee in accordance with the Pooling and
Servicing Agreement.
Section 8.04. Trustee May Own Certificates.
The Trustee, in its individual capacity or any other capacity, may become
the owner or pledgee of Certificates with the same rights it would have if it
were not Trustee.
Section 8.05. Trustee's Fees and Expenses.
The Servicer shall pay to the Trustee from time to time, pursuant to the
Pooling and Servicing Agreement or a separate fee agreement, 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 trusts created under the Pooling and Servicing
Agreement and in the exercise and performance of any of the powers and duties
hereunder of the Trustee, and shall reimburse the Trustee for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of the Pooling and Servicing Agreement
(including but not limited to the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such
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expense, disbursement or advance as may arise from its negligence or bad faith.
The Trustee and any director, officer, employee or agent of the Trustee shall be
indemnified by the Servicer and held harmless against any loss, liability or
expense, including reasonable attorney's fees, incurred as a result of or in
connection with the Pooling and Servicing Agreement or the Certificates,
including, but not limited to, any such loss, liability, or expense incurred in
connection with any legal action against the Trust or the Trustee or any
director, officer, employee or agent thereof, or the performance of any of the
Trustee's duties under the Pooling and Servicing Agreement other than any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of duties under the Pooling and Servicing
Agreement or by reason of reckless disregard of obligations and duties under the
Pooling and Servicing Agreement. Any payment hereunder made by the Servicer to
the Trustee shall be from the Servicer's own funds without any right to
reimbursement therefor. The obligations of the Servicer under this Section 8.05
shall survive the termination of the Trust and the resignation or removal of the
Trustee.
Section 8.06. Eligibility Requirements for Trustee.
The Trustee shall at all times be a corporation or national banking
association that is not an Affiliate of OMI or the Servicer, organized and doing
business under the laws of any state or the United States of America, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 (or qualifying as a Qualified Bank) and
subject to supervision or examination by federal or state regulatory
authorities. If such corporation or association publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation or association shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
conditions so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 8.07
hereof.
Section 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts
created pursuant to the Pooling and Servicing Agreement by giving written notice
of such resignation to OMI, the Servicer and to all related Certificateholders.
Upon receiving such notice of resignation, OMI shall promptly appoint a
successor Trustee by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee and to the successor Trustee. A copy of such
instrument shall be delivered to the Certificateholders and to the Servicer by
OMI. If no successor Trustee shall have been so appointed and have accepted
appointment within 30 days after the resigning Trustee's giving of such notice
of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 8.06 hereof and shall fail to resign after written
request therefor by OMI, 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 thereof, then OMI may remove the
Trustee and appoint a successor
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Trustee by written instrument, in duplicate, which instrument shall be delivered
to the Trustee so removed and to the successor Trustee. A copy of such
instrument shall be delivered to the Certificateholders and to the Servicer by
OMI.
The Holders of Certificates entitled to at least 51% of the Voting Rights
may remove the Trustee at any time and appoint a successor Trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered to OMI, one complete set to the Trustee so removed and one complete
set to the successor so appointed. A copy of such instrument shall be delivered
to the Certificateholders and to the Servicer by OMI. If the Holders remove the
Trustee otherwise than for reasonable cause based upon the Trustee's failure to
continue to meet the eligibility requirements set forth in Section 8.06 above or
the Trustee's failure to perform its duties as described herein, then the
Holders so removing the Trustee shall bear any and all costs and expenses
arising from such removal and substitution.
Any resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor Trustee as provided
in Section 8.08 hereof.
Section 8.08. Successor Trustee.
Any successor Trustee appointed as provided in Section 8.07 hereof shall
execute, acknowledge and deliver to OMI, the Servicer and to its predecessor
Trustee an instrument accepting such appointment under the Pooling and Servicing
Agreement and thereupon the resignation or removal of the predecessor Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as Trustee herein. The predecessor Trustee shall deliver to the successor
Trustee all related Asset Documents and related documents and statements held by
it under the Pooling and Servicing Agreement and OMI, the Servicer and 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 the provisions of Section 8.06 hereof.
Upon acceptance of appointment by a successor Trustee as provided in this
Section, OMI shall mail notice of the succession of such Trustee under the
Pooling and Servicing Agreement to all Holders of the Certificates at their
addresses as shown in the Certificate Register. If OMI fails to mail such notice
within ten days after acceptance of appointment by the successor Trustee, the
successor Trustee shall cause such notice to be mailed at the expense of OMI.
Section 8.09. Merger or Consolidation of Trustee.
Any corporation or association into which the Trustee may be merged or
converted or with which it may be consolidated or any corporation or association
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation or
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association succeeding to the business of the Trustee, shall be the successor of
the Trustee under the Pooling and Servicing Agreement provided such corporation
or association shall be eligible under the provisions of Section 8.06 hereof,
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.
Prior to any such merger, conversion or consolidation, the Trustee shall notify
each applicable Rating Agency in writing of the pendency of such merger,
conversion or consolidation.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
For the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Trust Estate or property securing the same may be located
at any time, OMI, the Servicer and the Trustee, acting jointly, shall have the
power and shall execute and deliver all instruments necessary 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 Trustees, of all or any part of
the Trust Estate, and to vest in such Person or Persons, in such capacity, such
title to the Trust Estate or any part thereof, and, subject to the other
provisions of this Section 8.10, such powers, duties, obligations, rights and
trusts as OMI, the Servicer and the Trustee may consider necessary or desirable.
If OMI or the Servicer shall not have joined in such appointment within 15 days
after the receipt by it of a request so to do, the Trustee alone shall have the
power to make such appointment. No co-Trustee or separate Trustee(s) hereunder
shall be required to meet the terms of eligibility as a successor Trustee under
Section 8.06 hereof and no notice to Holders of Certificates of the appointment
of co-Trustee(s) or separate Trustee(s) shall be required under Section 8.08
hereof.
In the case of any appointment of a co-Trustee or separate Trustee pursuant
to this Section 8.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate Trustee or co-Trustee jointly, except
to the extent that under any law of any jurisdiction in which any particular act
or acts are to be performed (whether as Trustee under the Pooling and Servicing
Agreement or as successor to the Servicer pursuant to Section 7.02 hereof), 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 Estate 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 the Pooling and Servicing
Agreement and the conditions of this Article VIII. 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 the Pooling and Servicing Agreement, specifically including every
provision of the Pooling and Servicing 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.
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Any separate Trustee or co-Trustee may, at any time, constitute the Trustee
its agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of the Pooling and
Servicing Agreement on its behalf and in its name. If any separate Trustee or
co-Trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor Trustee.
Section 8.11. Appointment of Custodians.
The Trustee may, with the consent of the Servicer, appoint one or more
Custodians to hold all or a portion of the Trustee Mortgage Loan Files as agent
for the Trustee, by entering into a custodial agreement. The appointment of any
Custodian may at any time be terminated and a substitute Custodian appointed
therefor by the Trustee. The Trustee shall terminate the appointment of any
Custodian and appoint a substitute custodian upon the request of the Servicer to
the Trustee. Subject to this Article VIII, the Trustee agrees to comply with the
terms of each custodial agreement and to enforce the terms and provisions
thereof against the Custodian for the benefit of the Certificateholders. Each
Custodian shall be a depository institution or trust company subject to
supervision by federal or state authority, shall have combined capital and
surplus of at least $10,000,000 and shall be qualified to do business in the
jurisdiction in which it holds any Trustee Mortgage Loan File. Any such
Custodian may not be an affiliate of OMI or any Seller with respect to the
applicable Trust.
Section 8.12. Trustee May Enforce Claims Without Possession of Certificates.
All rights of action and claims under the Pooling and Servicing Agreement
or the Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto and any such proceeding instituted by the Trustee
shall be brought in its own name or in its capacity as Trustee. Any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Certificateholders in respect of which such
judgment has been recovered.
ARTICLE IX
TERMINATION
Section 9.01. Termination Upon Repurchase or Liquidation of All Contracts.
(a) The respective obligations and responsibilities of OMI, the Servicer
and the Trustee under the Pooling and Servicing Agreement (other than the
obligations of the Trustee to make distributions to Certificateholders, to
reimburse the Servicer for outstanding Advances, to pay the Servicer accrued and
previously unpaid Servicing Fees or to provide tax information as provided in
Section 4.01(a) hereof and other than the obligations of the Servicer under
Article X hereof) shall terminate upon distribution to the Certificateholders of
all amounts held by or on behalf of the Trustee and required hereunder to be so
distributed on the Distribution Date coinciding with or following the earlier to
occur of (1) a Terminating Purchase for an amount equal to the Termination Price
and (2) the final payment or other liquidation (or any advance with respect
thereto) of the last Asset remaining in the Trust or the disposition of the last
Repo
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Property or REO Property remaining in the Trust; provided, however, that in no
event shall the Trust created hereby continue beyond the expiration of 21 years
after 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.
(b) Unless otherwise provided in the Pooling and Servicing Agreement, the
Servicer may, at its option, make, or cause a Person to make, a Terminating
Purchase on any Distribution Date on or after the earlier to occur of (1) the
Servicer's determination, based upon an Opinion of Counsel, that the REMIC
status of any REMIC related to the Trust has been lost or that a substantial
risk exists that such REMIC status will be lost for the then-current taxable
year, or (2) the Distribution Date on which, after taking into account
distributions of principal to be made on such Distribution Date, the sum of the
Certificate Principal Balances of the Certificates is less than 10% of the sum
of the original Certificate Principal Balances of the Certificates.
(c) The Servicer shall notify the Trustee and the Certificate Registrar in
writing of its election to make or to cause a Terminating Purchase no later than
the Distribution Date preceding the Distribution Date on which the Certificates
will be retired as a result of such Terminating Purchase. The Servicer shall
advise the Trustee and the Certificate Registrar of the final payment or other
liquidation of the last Asset remaining in the Trust or the disposition of the
last Repo Property or REO Property remaining in the Trust at least two Business
Days prior to the Remittance Date in the month in which the Trust will terminate
as a result thereof.
Notice of any termination of the Trust shall be given promptly by the
Trustee by letter sent to the Certificateholders by certified mail (1) in the
event such notice is given in connection with a Terminating Purchase, not
earlier than the fifth day of the month preceding the month of such termination
and not later than the first day of the month of such termination or (2)
otherwise not later than the Remittance Date preceding the final Distribution
Date, in each case specifying (A) the Distribution Date upon which the Trust
will terminate and that final payment of the Certificates will be made on such
Distribution Date and (B) the amount of any such final distribution. The Trustee
shall give such notice to the Certificate Registrar at the time such notice is
given to Certificateholders. In the event such notice is given in connection
with a Terminating Purchase, the Terminator shall deliver to the Trustee for
deposit into the Distribution Account on the Business Day immediately preceding
the Distribution Date on which the Terminating Purchase is to take place an
amount in next day funds equal to the Termination Price. Notwithstanding the
foregoing, if the Terminator is the Servicer, the Terminator, upon notice to the
Trustee, shall be entitled to remit the Termination Price net of amounts owed to
the Terminator in respect of unreimbursed outstanding Advances made by such
Terminator or amounts required to be reimbursed or paid to such Terminator
hereunder.
(d) On the final Distribution Date, the Trustee shall distribute to the
Certificateholders as of the related Record Date the amount otherwise
distributable on the Certificates on such Distribution Date (if such final
Distribution Date is not the result of a Terminating Purchase).
Upon any termination of the Trust as the result of a Terminating Purchase,
the Trustee shall distribute the Termination Price as though it were the amount
on deposit in the Distribution Account in accordance with Section 4.03(a) hereof
and in accordance with the related Pooling and Servicing Agreement.
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Following such final distribution, the Servicer and the Trustee shall
promptly release to the Terminator the related Asset Files or portions thereof
in their respective possessions for the remaining Assets, Repo Properties and
REO Properties, and the Trustee shall execute all assignments, endorsements and
other instruments necessary to effectuate transfer of such Asset Files to such
Terminator, whereupon the Trust shall terminate.
(e) In the event that all of the Certificateholders shall not surrender
their Certificates within six months after the date specified in the above-
mentioned written notice, the Trustee shall give a second written notice to the
remaining Certificateholders to surrender their Certificates and receive the
final distribution with respect thereto, net of the cost of such second notice.
If within one year after the second notice all the Certificates shall not have
been surrendered for cancellation, the Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the amounts otherwise payable on such Certificates.
Any funds payable to Certificateholders that are not distributed on the final
Distribution Date shall be deposited in a Termination Account, as the case may
be, each of which shall be an Eligible Account, to be held for the benefit of
Certificateholders not presenting and surrendering their Certificates in the
aforesaid manner, and shall be disposed of in accordance with this Section.
Section 9.02. Additional Termination Requirements.
(a) In the event of a Terminating Purchase as provided in Section 9.01
hereof, the Trust shall be terminated in accordance with the following
additional requirements, unless the Servicer, OMI, and the Trustee receive (1) a
Special Tax Opinion and (2) a Special Tax Consent from each of the Holders of
the Residual Certificates (unless the Special Tax Opinion specifically provides
that no REMIC-level tax will result from such Terminating Purchase).
(1) Within 90 days prior to the time of the making of the final
payment on the Certificates, OMI on behalf of each related REMIC shall adopt a
plan of complete liquidation meeting the requirements set forth in the REMIC
Provisions for a qualified liquidation (which plan may be adopted by the
Trustee's attachment of a statement specifying the first day of the 90-day
liquidation period to the REMIC's final federal income tax return) and the REMIC
will sell all of its assets (other than cash).
(2) At the time of the making of the final payment on the Regular
Certificates or the deposit to the Termination Account, the Trustee shall
distribute or credit, or cause to be distributed or credited, pro rata, to the
Holders of the Residual Certificates, all remaining cash on hand relating to the
REMIC after such final payment (other than cash retained to meet claims against
the Trust) and the REMIC shall terminate at that time.
(3) In no event may the final payment on the Regular Certificates or
the final distribution or credit to the Holders of the Residual Certificates be
made after the 90th day after the date on which the plan of complete liquidation
relating thereto is adopted. A payment into the Termination Account with respect
to any Certificate pursuant to Section 9.01 hereof shall be deemed a final
payment on, or final distribution with respect to, such Certificate for the
purposes of this Section 9.02(a)(3).
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(b) By their acceptance of Residual Certificates, the Holders thereof
agree (1) to authorize such action as may be necessary to adopt a plan of
complete liquidation of any related REMIC and (2) to take such action as may be
necessary to adopt a plan of complete liquidation of any related REMIC upon the
written request of the Servicer, which authorization shall be binding upon all
successor Holders of such Residual Certificates.
ARTICLE IX
REMIC TAX PROVISIONS
Section 10.01. REMIC Administration.
Unless otherwise specified in the related Pooling and Servicing Agreement,
an election will be made to treat the Assets and the Distribution Account
underlying a Series as one or more REMICs under the Code. Each Holder of a
Residual Certificate in each REMIC shall, in its Residual Transferee Agreement,
designate the Servicer or an Affiliate of the Servicer, as its agent, to act as
the Tax Matters Person for such REMIC. The Servicer agrees that it or one of its
Affiliates will serve as such Tax Matters Person for each REMIC, and also will
perform various tax administration functions for each REMIC, as its agent, as
set forth in this Section 10.01.
(a) The Trustee shall elect (on behalf of each REMIC to be created) to
have the Trust (or designated assets thereof) treated as a REMIC on Form 1066 or
other appropriate federal tax or information return for the taxable year ending
on the last day of the calendar year in which the Certificates are issued as
well as on any corresponding state tax or information return necessary to have
such assets treated as a REMIC under relevant state law.
(b) The Servicer shall pay any and all tax related expenses (not including
taxes) of the Trust and each related REMIC, including but not limited to any
professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to each such REMIC that involve the Internal
Revenue Service or state tax authorities or related to the adoption of a plan of
complete liquidation.
(c) The Servicer shall prepare any necessary forms for election as well as
all of the Trust's and each related REMIC's federal and state tax and
information returns. At the request of the Servicer, the Trustee shall sign and
file such returns on behalf of each such REMIC. The expenses of preparing and
filing such returns shall be borne by the Servicer.
(d) The Servicer shall perform all reporting and other tax compliance
duties that are the responsibility of the Trust and the REMIC under the REMIC
Provisions or state or local tax law. Among its other duties, if required by the
REMIC Provisions, the Servicer, acting as agent of the REMIC, shall provide (1)
to the Treasury or to other governmental authorities such information as is
necessary for the application of any tax relating to the transfer of a Residual
Certificate to any Disqualified Organization and (2) to the Trustee such
information as is necessary for the Trustee to discharge its obligations under
the REMIC Provisions to report tax information to the Certificateholders.
(e) OMI, the Servicer, the Trustee (to the extent the Trustee has been
instructed by OMI or the Servicer), and the Holders of Residual Certificates
shall take any action or cause each related REMIC to take any action necessary
to create or maintain the status of each such
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REMIC as a REMIC under the REMIC Provisions and shall assist each other as
necessary to create or maintain such status.
(f) OMI, the Servicer, the Trustee (to the extent the Trustee has been
instructed by OMI or the Servicer), and the Holders of the Residual Certificates
shall not take any action or fail to take any action, or cause each related
REMIC to take any action or fail to take any action that, if taken or not taken,
could (i) result in the imposition of any tax on any REMIC that would not
otherwise have been imposed or (ii) endanger the status of each such REMIC as a
REMIC unless the Trustee and the Servicer have received an Opinion of Counsel
(at the expense of the party seeking to take or to omit to take such action) to
the effect that the contemplated action or failure to act will not result in the
imposition of such a tax or endanger such status.
(g) Any taxes that are imposed upon the Trust or any related REMIC by
federal or state (including local) governmental authorities (other than taxes
paid by a party pursuant to Section 10.02 hereof or as provided in the following
sentence) shall be allocated to the Certificates (including, for this purpose,
the regular interests in any Pooling REMIC) in the same manner as Writedown
Amounts are so allocated; provided, however, that if the related Pooling and
Servicing Agreement does not provide for the allocation of Writedown Amounts,
such taxes shall be payable out of the Available Distribution Amount before any
distributions are made on the related Certificates on the related Distribution
Date. Any state or local taxes imposed upon the Trust, any related REMIC or any
related Certificateholder that would not have been imposed on the Trust, such
REMIC or such Certificateholder in the absence of any legal or business
connection between the Trustee and the state or locality imposing such taxes
(including any federal, state or local taxes imposed on such Trust, such REMIC
or such Certificateholder as a result of such Trust, such REMIC or such
Certificateholder being deemed to have received income as a result of the
Trustee's payment of state or local taxes) shall be paid by the Trustee, and,
notwithstanding anything to the contrary in these Standard Terms, such taxes
shall be deemed to be part of the Trustee's cost of doing business and shall not
be reimbursable to the Trustee.
(h) If the Servicer (or an Affiliate thereof) is unable for any reason to
fulfill its duties as Tax Matters Person, then the holder of the largest
Percentage Interest of the Residual Certificates, without compensation, shall
become the successor Tax Matters Person for each related REMIC; provided,
however, that in no event shall the Trustee be required to act as Tax Matters
Person (regardless of whether the Trustee is acting as successor Servicer).
Section 10.02. Prohibited Activities.
Except as otherwise provided elsewhere in the Pooling and Servicing
Agreement, neither OMI, the Servicer, the Holders of Residual Certificates, nor
the Trustee shall engage in, nor shall the Trustee permit, any of the following
transactions or activities unless it has received (1) a Special Tax Opinion and
(2) a Special Tax Consent from each of the Holders of the Residual Certificates
(unless the Special Tax Opinion specially provides that no REMIC-level tax will
result from the transaction or activity in question):
(a) the sale or other disposition of, or substitution for, any of the
underlying Assets except pursuant to (1) a foreclosure or default with respect
to such an Asset, (2) a purchase,
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repurchase or substitution pursuant to Section 2.06 hereof, (3) the bankruptcy
or insolvency of any related REMIC, or (4) the termination of any related REMIC
pursuant to Article IX hereof;
(b) the acquisition of any Assets for the Trust after the related Closing
Date except (1) during the three-month period beginning on the Closing Date
pursuant to a fixed-price contract in effect on the Closing Date that has been
reviewed and approved by tax counsel acceptable to the Servicer or (2) a
substitution in accordance with Section 2.06 hereof;
(c) the sale or other disposition of any investment in the Distribution
Account at a gain;
(d) the acceptance of any contribution to the Trust except the following
cash contributions: (1) a cash contribution received during the three-month
period beginning on the Closing Date; (2) a cash contribution to facilitate a
Terminating Purchase that is made within the 90-day period beginning on the date
on which a plan of complete liquidation is adopted pursuant to Section
9.02(a)(1) hereof; (3) a contribution to a Reserve Fund owned by a related REMIC
that is made pro rata by the Holders of the Residual Certificates; or (4) any
other contribution approved by the Servicer after consultation with tax counsel;
(e) except in the case of an Asset that is in default, or as to which, in
the reasonable judgment of the Servicer, default is reasonably foreseeable,
neither the Trustee nor the Servicer shall permit any modification of any
material term of an Asset (including, but not limited to, the interest rate, the
principal balance, the amortization schedule (except as provided in the Pooling
and Servicing Agreement), the remaining term to maturity, or any other term
affecting the amount or timing of payments on the Asset) unless the Trustee and
Servicer have received an Opinion of Counsel (at the expense of the party
seeking to modify the Asset) to the effect that such modification would not be
treated as giving rise to a new debt instrument for REMIC purposes;
(f) any other transaction or activity that is not contemplated by the
Pooling and Servicing Agreement;
(g) the sale or other disposition of any asset held in a Reserve Fund for
a period of less than three months (a "Short-Term Reserve Fund Investment") if
such sale or disposition would cause 30% or more of a related REMIC's income
from all of its Reserve Funds for the taxable year to consist of gain from the
sale or disposition of Short-Term Reserve Fund Investments; or
(h) the withdrawal of any amounts from any Reserve Fund except (A) for the
distribution pro rata to the Holders of the Residual Certificates or (B) to
provide for the payment of Trust expenses or amounts payable on the Certificates
in the event of defaults or late payments on the related Assets or lower than
expected returns on funds held in the Distribution Account, as provided under
section 860G(a)(7) of the Code.
Any party causing the Trust to engage in any of the activities prohibited
in this Section shall be liable for the payment of any tax imposed on the Trust
pursuant to Code section 860F(a)(1) or 860G(d) as a result of the Trust engaging
in such activities.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendments.
The Pooling and Servicing Agreement may be amended or supplemented from
time to time by OMI, the Servicer and the Trustee without the consent of any of
the Certificateholders (a) to cure any ambiguity herein, (b) to correct or
supplement any provisions herein that may be inconsistent with any other
provisions herein, (c) to modify, eliminate or add to any of its provisions to
such extent as shall be necessary or appropriate to maintain the qualification
of any related REMIC as a REMIC under the Code at all times that any
Certificates are outstanding or (d) to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement or
matters arising with respect to the Trust that are not covered by the Pooling
and Servicing Agreement; provided, that such action shall not affect adversely
the interests of any Certificateholder, as evidenced by an opinion of counsel
independent from OMI and the Servicer or a letter from each Rating Agency from
whom OMI requested a rating of any of the related Certificates stating that such
action will not result in a downgrading of the rating of any of the related
Certificates rated by such Rating Agency at the request of OMI. Promptly after
the execution of any such amendment, the Trustee shall furnish a copy of such
amendment to each Holder of Certificates.
The Pooling and Servicing Agreement also may be amended from time to time
by OMI, the Servicer and the Trustee with the consent of the Holders entitled to
at least a majority of the Voting Rights of each Class of Certificates that
would be affected by such amendment for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of the Certificates; provided, however, that no such amendment shall (a) reduce
in any manner the amount of, or delay the timing of, payments received on
Contracts or Mortgage Loans that are required to be distributed on any
Certificate without the consent of the Holder of such Certificate, (b) affect
adversely in any material respect the interests of the Holders of any Class of
Certificates in a manner other than described in clause (a) of this paragraph,
without the consent of the Holders of Certificates of such Class evidencing at
least 66_% of the Voting Rights with respect to such Class, or (c) reduce the
aforesaid percentage of Certificates the Holders of which are required to
consent to any such amendment, without the consent of such Holders of all
Certificates then outstanding.
It shall not be necessary for the consent of Certificateholders under this
Section 11.01 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Section 11.02. Recordation of Agreement; Counterparts.
To the extent permitted by applicable law, the Pooling and Servicing
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 Real Property or Mortgaged Properties included in the Trust
Estate and subject to the related Mortgages are situated, and in
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any other appropriate public recording office or elsewhere, such recordation to
be effected by the Servicer and at its expense, but only upon direction of the
Trustee accompanied by an Opinion of Counsel to the effect that such recordation
is necessary to protect the interests of the Certificateholders. The Trustee
shall not be responsible for determining whether the Pooling and Servicing
Agreement should be recorded in any such office.
For the purpose of facilitating the recordation of the Pooling and
Servicing Agreement as herein provided and for other purposes, the Pooling and
Servicing Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall together constitute but one and the same instrument.
Section 11.03. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate the Pooling and Servicing Agreement or the Trust, nor will such death
or incapacity 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, nor shall it 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 for herein) or in any manner otherwise control the operation and
management of the Trust, or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Certificates, be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to the Pooling and Servicing Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue of any provision of the
Pooling and Servicing Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to the Pooling and Servicing
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 entitled to at least 25%
of the Voting Rights allocated to the Certificates shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee under the Pooling and Servicing Agreement 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
15 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
is understood and intended, and expressly covenanted by each Certificateholder
with every other Certificateholder and the Trustee, that no one or more Holders
of Certificates shall have any right in any manner whatever by virtue of any
provision of the Pooling and Servicing 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 the Pooling and Servicing Agreement, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of Certificates. 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.
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Section 11.04. Notices.
All demands and notices under the Pooling and Servicing Agreement shall be
in writing and shall be deemed to have been duly given if personally delivered
at or mailed by first class mail, postage prepaid, or by express delivery
service, to (a) in the case of OMI, 0000 XxXxxxx Xxxx, Xxxxxxxxxx, XX 00000-
7081, Attention: Treasurer, telecopy number (000) 000-0000, or such other
address or telecopy number as may hereafter be furnished to each party to the
Pooling and Servicing Agreement in writing by OMI, (b) in the case of OAC or the
Servicer, 0000 XxXxxxx Xxxx, Xxxxxxxxxx, XX 00000-0000, Attention: Treasurer,
telecopy number (000) 000-0000, or such other address or telecopy number as may
subsequently be furnished to each party to the Pooling and Servicing Agreement
in writing by the Servicer and (c) in the case of the Trustee, at its address
set forth in the Pooling and Servicing Agreement or such other address or
telecopy number as may subsequently be furnished to each party to the Pooling
and Servicing Agreement in writing by the Trustee. Any notice required or
permitted to be mailed to a Certificateholder shall be given by registered mail,
postage prepaid, or by express delivery service, at the address of such Holder
as shown in the Certificate Register. Any notice so mailed within the time
prescribed in the Pooling and Servicing Agreement shall be conclusively presumed
to have been duly given, whether or not the Certificateholder receives such
notice. A copy of any notice required to be telecopied hereunder also shall be
mailed to the appropriate party in the manner set forth above. A copy of any
notice given hereunder to any other party shall be delivered to the Trustee.
Section 11.05. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of the
Pooling and Servicing 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 of the Pooling and
Servicing Agreement and shall in no way affect the validity or enforceability of
the other provisions of the Pooling and Servicing Agreement or of the
Certificates or the rights of the Holders thereof.
Section 11.06. Sale of Contracts.
It is the express intent of OMI and the Trustee that the conveyance of the
Assets underlying a Series by OMI to the Trustee pursuant to the related Pooling
and Servicing Agreement be construed as a sale of such Assets by OMI to the
Trustee. It is, further, not the intention of OMI or the Trustee that such
conveyance be deemed a pledge of such Assets by OMI to the Trustee to secure a
debt or other obligation of OMI. However, in the event that, notwithstanding the
intent of the parties, such Assets are held to continue to be property of OMI,
then (a) the Pooling and Servicing Agreement also shall be deemed to be a
security agreement within the meaning of Article 9 of the applicable UCC; (b)
the conveyance by OMI provided for in the Pooling and Servicing Agreement shall
be deemed to be a grant by OMI to the Trustee of a security interest in all of
OMI's right, title and interest in and to the Assets and all amounts payable to
the holders of the Assets in accordance with the terms thereof and all proceeds
of the conversion, voluntary or involuntary, of the foregoing into cash,
instruments, securities or other property, including without limitation all
amounts, other than investment earnings, from time to time held or invested in
any related Pre-Funding Account, Capitalized Interest Account, Certificate
Account or Distribution Account, whether in the form of cash, instruments,
securities
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or other property, and including without limitation all amounts from time to
time held or invested in any related Reserve Fund; (c) the possession by the
Trustee or its agent (including the Servicer pursuant to Section 2.02(a) hereof)
of items of property that constitute instruments, money, negotiable documents or
chattel paper shall be deemed to be "possession by the secured party" for
purposes of perfecting the security interest pursuant to Section 9-305 of the
applicable UCC; and (d) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the Trustee
for the purpose of perfecting such security interest under applicable law. OMI
and the Trustee (to the extent the Trustee has been instructed by OMI or the
Servicer) shall take, to the extent consistent with the Pooling and Servicing
Agreement, such actions as may be necessary to ensure that, if the Pooling and
Servicing Agreement were deemed to create a security interest in the related
Assets, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Pooling and Servicing Agreement.
Section 11.07. Notice to Rating Agency.
(a) The Trustee shall use its best efforts promptly to provide notice to
each applicable Rating Agency and each Certificateholder with respect to each of
the following of which it has actual knowledge, except that no notice specified
below need be sent to any such Certificateholder or each applicable Rating
Agency if already sent pursuant to other provisions of the Pooling and Servicing
Agreement:
(1) any amendment to the Pooling and Servicing Agreement or any
agreement assigned to the Trust;
(2) the occurrence of any Event of Default involving the Servicer
that has not been cured or waived;
(3) the resignation, termination or merger of OMI, the Servicer or
the Trustee;
(4) the purchase or repurchase or substitution of Contracts pursuant
to Section 2.06 hereof;
(5) the final payment to the Certificateholders;
(6) any change in the location of the related Certificate Account or
the Distribution Account;
(7) any event that would result in the inability of the Servicer to
make Advances regarding the related Assets;
(8) any change in applicable law that would require an assignment of
a Mortgage, not previously recorded, to be recorded in order to protect the
right, title and interest of the Trustee in and to the related Real Property or
Mortgaged Property or, in case a court should recharacterize the sale of the
related Asset as a financing, to perfect a first priority security interest in
favor of the Trustee in the related Asset or the occurrence of either of the
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circumstances described in clause (1) or (2) of Section 2.06(b) hereof relating
to the retitling of Manufactured Homes; or
(9) any change in OMI's or the Servicer's name or place of business
or the relocation of the Contract Files or Servicer Contract Files or the
Servicer Mortgage Loan Files to a location outside the State of North Carolina
or the relocation of the Trustee Mortgage Loan Files to a location outside of
the state where they are originally held by the Trustee or its Custodian.
(b) The Servicer shall promptly notify the Trustee of any of the events
listed in Section 11.07(a) hereof of which it has actual knowledge. In addition,
the Trustee shall furnish promptly to each Rating Agency, at its address set
forth in the Pooling and Servicing Agreement, copies of the following:
(1) Each Remittance Report; and
(2) Each Officer's Certificate supplied by the Servicer to the
Trustee and the Certificateholders pursuant to Section 3.13 hereof.
(c) Any notice pursuant to this Section 11.07 shall be in writing and
shall be deemed to have been duly given if personally delivered or mailed by
first class mail, postage prepaid or by express delivery service to each Rating
Agency at its address specified in the Pooling and Servicing Agreement.
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EXHIBIT 1
---------
FORM OF SERVICER'S CUSTODIAL CERTIFICATION
[DATE]
[NAME AND ADDRESS
OF TRUSTEE]
Pooling and Servicing Agreement, dated
as of ____________, among
Oakwood Mortgage Investors, Inc. ("OMI"),
Oakwood Acceptance Corporation and
, as Trustee
Ladies and Gentlemen:
In accordance with Section 2.02(b) of OMI's Standard Terms to Pooling and
Servicing Agreement (September 2001 Edition), which are incorporated by
reference into the above-referenced Pooling and Servicing Agreement (the
"Agreement"), Oakwood Acceptance Corporation, as Servicer under the Agreement,
hereby confirms that it is in possession of a complete Contract File for each of
the Contracts identified on Schedule I to the Agreement, subject to those
exceptions identified on the schedule attached hereto. Capitalized terms used
and not otherwise defined herein shall have the respective meanings assigned to
such terms in the Agreement.
OAKWOOD ACCEPTANCE CORPORATION
By:
Name:
Title:
Exhibit 1-Page 1
EXHIBIT 2-A
-----------
FORM OF INITIAL CERTIFICATION
[Date]
Oakwood Mortgage Investors, Inc.
0000 XxXxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: [_______________]
Oakwood Acceptance Corporation
0000 XxXxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: [________________]
Re: Pooling and Servicing Agreement, dated as of ___ 1, ___,
among Oakwood Mortgage Investors, Inc.,
Oakwood Acceptance Corporation, as Servicer,
and _______________, as Trustee,
Pass-Through Certificates, __________________
OMI Trust _______-_____.
Gentlemen:
In accordance with Section 2.03 of OMI's Standard Terms to Pooling and
Servicing Agreement (September 2001 Edition) (the "Standard Terms"), which are
incorporated by reference into the above-referenced Pooling and Servicing
Agreement, the undersigned, as Trustee, hereby certifies that, as to each
Mortgage Loan listed in the Mortgage Loan Schedule to the Pooling and Servicing
Agreement (other than any Mortgage Loan paid in full or listed on the attachment
hereto) it, or a Custodian on its behalf, has reviewed the Trustee Mortgage Loan
File and has determined that, except as noted on the Schedule of Exceptions
attached hereto: (i) all documents required to be included in the Trustee
Mortgage Loan File (as set forth in the definition of "Trustee Mortgage Loan
File" in the Standard Terms) are in its possession or in the possession of a
Custodian on its behalf; (ii) such documents have been reviewed by it, or a
Custodian on its behalf, and appear regular on their face and relate to such
Mortgage Loan; and (iii) based on examination by it, or by a Custodian on its
behalf, and only as to such documents, the information set forth on the Mortgage
Loan Schedule to the Pooling and Servicing Agreement accurately reflects the
information set forth in the Trustee Mortgage Loan File. The undersigned
further certifies that the Trustee's review, or the review of its Custodian, of
each Trustee Mortgage Loan File included each of the procedures listed in
Section 2.03(c)(2) of the Standard Terms.
Exhibit 2A-Page 1
Except as described herein, neither the Trustee, nor any Custodian on its
behalf, has made an independent examination of any documents contained in any
Trustee Mortgage Loan File. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any documents
contained in any Trustee Mortgage Loan File for any of the Mortgage Loans listed
on the Mortgage Loan Schedule to the Pooling and Servicing Agreement, (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan or (iii) whether any Trustee Mortgage Loan File should include any
assumption agreement, modification agreement, written assurance or substitution
agreement.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement").
[TRUSTEE]
By:
Its:
Exhibit 2A-Page 2
EXHIBIT 2-B
-----------
FORM OF FINAL CERTIFICATION
[Date]
Oakwood Mortgage Investors, Inc.
0000 XxXxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: [_______________]
Oakwood Acceptance Corporation
0000 XxXxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: [________________]
Re: Pooling and Servicing Agreement, dated as of ___ 1, ____,
among Oakwood Mortgage Investors, Inc.,
Oakwood Acceptance Corporation, as Servicer,
and _______________, as Trustee,
Pass-Through Certificates, __________________
OMI Trust _______-_____.
Gentlemen:
In accordance with Section 2.03 of OMI's Standard Terms to Pooling and
Servicing Agreement (September 2001 Edition) (the "Standard Terms"), which are
incorporated by reference into the above-referenced Pooling and Servicing
Agreement, the undersigned, as Trustee, hereby certifies that, except as noted
on the Schedule of Exceptions attached hereto, for each Mortgage Loan listed in
the Mortgage Loan Schedule to the Pooling and Servicing Agreement (other than
any Mortgage Loan paid in full or listed on the attachment hereto) it, or a
Custodian on its behalf, has received a complete Trustee Mortgage Loan File
which includes each of the documents required to be included in the Trustee
Mortgage Loan File as set forth in the definition of "Trustee Mortgage Loan
File" in the Standard Terms.
Neither the Trustee nor any Custodian on its behalf has made an independent
examination of any documents contained in any Trustee Mortgage Loan File beyond
the review specifically required in the above captioned Pooling and Servicing
Agreement. The Trustee makes no representations as to: (i) the validity,
legality, sufficiency, enforceability or genuineness of any of the documents
contained in any Trustee Mortgage Loan File or any of the Mortgage Loans listed
on the Mortgage Loan Schedule, (ii) the collectibility, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) whether any
Trustee Mortgage
Exhibit 2B-Page 1
Loan File should include any assumption agreement, modification
agreement, written assurance or substitution agreement.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement").
[TRUSTEE]
By:
Its:
Exhibit 2B-Page 2
EXHIBIT 3
---------
FORM OF RECORDATION REPORT
[Date]
Oakwood Acceptance Corporation
0000 XxXxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: [________________]
Re: Pooling and Servicing Agreement, dated as of _____ 1, ___,
among Oakwood Mortgage Investors, Inc.,
Oakwood Acceptance Corporation, as Servicer,
and _______________, as Trustee,
Pass-Through Certificates, __________________
OMI Trust _______-_____.
Gentlemen:
In accordance with Section 2.03 of OMI's Standard Terms to Pooling and
Servicing Agreement (September 2001 Edition) (the "Standard Terms"), which are
incorporated by reference into the above-referenced Pooling and Servicing
Agreement, the undersigned, as Trustee hereby notifies you, that as of the date
hereof with respect to the following Mortgage Loans it has not received the
indicated documents:
Mortgage Loans Documents Not Received
----------------------------------------------------
Original Recorded
Original Recorded Assignment of
Mortgage Mortgage
or certified copy Mortgage
OAC Loan Number thereof thereof*
[TRUSTEE]
as Trustee
By:
Its:
Exhibit 3-Page 1
* Not required for Mortgage Loans for which OMI has waived recordation of
Assignments.
Exhibit 3-Page 2
EXHIBIT 4
---------
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
--------------------------------------------
TO: [Name and Address of Trustee or Custodian]
RE: Pooling and Servicing Agreement, dated as of __________ 1, 20__, among
Oakwood Mortgage Investors, Inc. ("OMI"), Oakwood Acceptance
Corporation, as Servicer, and ____________________, as Trustee, which
incorporates by reference OMI's Standard Terms to Pooling and
Servicing Agreement (September 2001 Edition) (collectively, the
"Pooling and Servicing Agreement")
In connection with the administration of the Mortgage Loans held by you as
the Trustee or Custodian, we request the release and acknowledge receipt, of the
Trustee Mortgage Loan File [specify documents if only a partial Trustee Mortgage
Loan File is being released]) for the Mortgage Loan described below, for the
reason indicated.
Mortgagor's Name and Address & Zip Code:
Mortgage Loan Number:
--------------------
Reason for Requesting Documents (check one)
___ 1. Mortgage Loan Paid in Full. (The Servicer hereby certifies that all
amounts received in connection therewith have been deposited into the
applicable Certificate Account as provided in the Pooling and
Servicing Agreement.)
___ 2. Mortgage Loan Liquidated by _________________. (The Servicer hereby
certifies that all proceeds of foreclosure, insurance, condemnation or
other liquidation have been finally received.)
___ 3. Mortgage Loan in Foreclosure.
___ 4. Other (explain). _______________________________
If item 1 or 2 above is checked, and if all or part of the Trustee Mortgage
Loan File was previously released to us, please release to us our previous
request and receipt on file with you, as well as any additional documents in
your possession relating to the specified Mortgage Loan.
If item 3 or 4 above is checked, upon our return of all of the above
documents to you as the Trustee or Custodian, please acknowledge your receipt by
signing in the space indicated below, and returning this form.
Exhibit 4-Page 1
Capitalized terms used herein but not defined herein have the meanings
ascribed to them in the Pooling and Servicing Agreement.
OAKWOOD ACCEPTANCE CORPORATION,
as Servicer
By:
Name:
Title:
Date:
Acknowledgment of Documents returned to the Trustee or Custodian:
[NAME OF TRUSTEE OR CUSTODIAN]
------------------------------
By:
Name:
Title:
Date:
Exhibit 4-Page 2
EXHIBIT 5
---------
RULE 144A AGREEMENT--QIB CERTIFICATION
OAKWOOD MORTGAGE INVESTORS, INC., SERIES ____-__
PASS-THROUGH CERTIFICATES, CLASS ___
________________
(DATE)
[Name and Address of
the Trustee]
Oakwood Mortgage Investors, Inc.
Oakwood Acceptance Corporation
0000 XxXxxxx Xxxx
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
In connection with the purchase on the date hereof of the captioned
securities (the "Purchased Certificates"), the undersigned (the "Transferee")
hereby certifies and covenants to the transferor, Oakwood Mortgage Investors,
Inc. ("OMI"), the Servicer, the Trustee and the Trust as follows:
1. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933,
as amended (the "1933 Act") and has completed the form of certification to that
effect attached hereto as Annex A1 (if the Transferee is not a registered
investment company) or Annex A2 (if the Transferee is a registered investment
company). The Transferee is aware that the sale to it is being made in reliance
on Rule 144A.
2. The Transferee understands that the Purchased Certificates have not
been registered under the 1933 Act or registered or qualified under any state
securities laws and that no transfer may be made unless the Purchased
Certificates are registered under the 1933 Act and under applicable state law or
unless an exemption from such registration is available. The Transferee further
understands that neither OMI, the Servicer, the Trustee nor the Trust is under
any obligation to register the Purchased Certificates or make an exemption from
such registration available.
3. The Transferee is acquiring the Purchased Certificates for its own
account or for the account of a "qualified institutional buyer" (as defined in
Rule 144A, a "QIB"), and understands that such Purchased Certificates may be
resold, pledged or transferred only (a) to a person reasonably believed to be
such a QIB that purchases for its own account or for the account of a QIB to
whom notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, or (b) pursuant to another exemption from registration
under the 1933 Act and under applicable state securities laws. In addition,
such transfer may be subject to additional restrictions, as set forth in Section
5.05 of the Standard Terms to the Pooling and
Exhibit 5-Page 1
Servicing Agreement (the "Standard Terms") referred to below. By its execution
of this agreement, the Transferee agrees that it will not resell, pledge or
transfer any of the Purchased Certificates to anyone otherwise than in strict
compliance with Rule 144A, or pursuant to another exemption from registration
under the 1933 Act and all applicable state securities laws, and in strict
compliance with the transfer restrictions set forth in Section 5.05 of the
Standard Terms. The Transferee will not attempt to transfer any or all of the
Purchased Certificates pursuant to Rule 144A unless the Transferee offers and
sells such Certificates only to QIBs or to offerees or purchasers that the
Transferee and any person acting on behalf of the Transferee reasonably believe
(as described in paragraph (d)(l) of Rule 144A) is a QIB.
4. The Transferee has been furnished with all information that it
requested regarding (a) the Purchased Certificates and distributions thereon and
(b) the Pooling and Servicing Agreement referred to below.
5. If applicable, the Transferee has complied, will comply in all
material respects with applicable regulatory guidelines relating to the
ownership of mortgage derivative products.
All capitalized terms used but not otherwise defined herein have the
respective meanings assigned thereto in the Pooling and Servicing Agreement,
dated as of _____________ 1, ____, which incorporates by reference the Standard
Terms thereto (September 2001 Edition), among Oakwood Mortgage Investors, Inc.,
Oakwood Acceptance Corporation and ____________________, as Trustee, pursuant to
which the Purchased Certificates were issued.
IN WITNESS WHEREOF, the undersigned has caused this Rule 144A Agreement to
be executed by its duly authorized representative as of the day and year first
above written.
[TRANSFEREE]
By:
Name:
Title:
Exhibit 5-Page 2
Annex A1 to Exhibit 5
TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Transferee.
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933,
as amended (the "1933 Act"), because (a) the Transferee owned and/or invested on
a discretionary basis at least $____________ in securities [Note to reviewer -
the amount in the previous blank must be at least $100,000,000 unless the
Transferee is a dealer, in which case the amount filled in the previous blank
must be at least $10,000,000.] (except for the excluded securities referred to
in paragraph 3 below) as of _______________ [specify a date on or since the end
of the Transferee's most recently ended fiscal year] (such amount being
calculated in accordance with Rule 144A) and (b) the Transferee meets the
criteria listed in the category marked below.
___ Corporation, etc. The Transferee is an organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, a
corporation (other than a bank as defined in Section 3(a)(2) of the
1933 Act or a savings and loan association or other similar
institution referenced in Section 3(a)(5)(A) of the Act), a
partnership, or a Massachusetts or similar business trust.
___ Bank. The Transferee (a) is a national bank or banking institution as
defined in Section 3(a)(2) of the 1933 Act and is organized under the
laws of a state, territory or the District of Columbia. The business
of the Transferee is substantially confined to banking and is
supervised by the appropriate state or territorial banking commission
or similar official or is a foreign bank or equivalent institution,
and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements as of a date
not more than 16 months preceding the date of this certification in
the case of a U.S. bank, and not more than 18 months preceding the
date of this certification in the case of a foreign bank or equivalent
institution, a copy of which financial statements is attached hereto.
___ Savings and Loan. The Transferee is a savings and loan association,
building and loan association, cooperative bank, homestead association
or similar institution referenced in Section 3(a)(5)(A) of the 1933
Act. The Transferee is supervised and examined by a state or federal
authority having supervisory authority over any such institutions or
is a foreign savings and loan association or equivalent institution
and has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements as of a date not more than
16 months preceding the date of this certification in the case of a
U.S. savings and loan association or similar institution, and not more
than 18 months preceding the date of this certification in the case of
a foreign savings and loan association or equivalent institution, a
copy of which financial statements is attached hereto.
Exhibit 5-Page 1
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Certificates Exchange Act of 1934, as amended (the
"1934 Act").
___ Insurance Company. The Transferee is an insurance company as defined
in Section 2(13) of the 1933 Act, whose primary and predominant
business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to
supervision by the insurance commissioner or a similar official or
agency of a state, territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of a state or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Certificate Act
of 1974, as amended.
___ Investment Adviser. The Transferee is an investment adviser
registered under the Investment Advisers Act of 1940, as amended.
___ Other. The Transferee qualifies as a "qualified institutional buyer"
as defined in Rule 144A on the basis of facts other than those listed
in any of the entries above. If this response is marked, the
Transferee must certify on additional pages, to be attached to this
certification, to facts that satisfy the Servicer that the Transferee
is a "qualified institutional buyer" as defined in Rule 144A.
3. The term "securities" as used herein does not include (a) securities
of issuers that are affiliated with the Transferee, (b) securities constituting
the whole or part of an unsold allotment to or subscription by the Transferee,
if the Transferee is a dealer, (c) bank deposit notes and certificates of
deposit, (d) loan participations, (e) repurchase agreements, (f) securities
owned but subject to a repurchase agreement and (g) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee and did not include any of the
securities referred to in the preceding paragraph. Further, in determining such
aggregate amount, the Transferee may have included securities owned by
subsidiaries of the Transferee, but only if such subsidiaries are consolidated
with the Transferee in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Transferee's direction. However, such
securities were not included if the Transferee is a majority-owned, consolidated
subsidiary of another enterprise and the Transferee is not itself a reporting
company under the 1934 Act.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Purchased
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be made in reliance on Rule
144A.
6. Will the Transferee be purchasing _____ _____
Exhibit 5-Page 2
the Purchased Certificates only YES NO
for the Transferee's own account?
If the answer to the foregoing question is "NO", the Transferee agrees
that, in connection with any purchase of securities sold to the Transferee for
the account of a third party (including any separate account) in reliance on
Rule 144A, the Transferee will only purchase for the account of a third party
that at the time is a "qualified institutional buyer" within the meaning of Rule
144A. In addition, the Transferee agrees that the Transferee will not purchase
securities for a third party unless the Transferee has obtained a current
representation letter from such third party or taken other appropriate steps
contemplated by Rule 144A to conclude that such third party independently meets
the definition of "qualified institutional buyer" set forth in Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Purchased
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties updated annual financial statements promptly after they become
available.
IN WITNESS WHEREOF, the undersigned has caused this certificate to be
executed by its duly authorized representative this ____ day of ___________,
______.
Print Name of Transferee
By:
Name:
Title:
Date:
Exhibit 5-Page 3
Annex A2 to Exhibit 5
REGISTERED INVESTMENT COMPANIES
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the entity purchasing the Purchased
Certificates (the "Transferee") or, if the Transferee is part of a Family of
Investment Companies (as defined in paragraph 3 below), is an officer of the
related investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933,
as amended (the "1933 Act"), because (a) the Transferee is an investment company
(a "Registered Investment Company") registered under the Investment Company Act
of 1940, as amended (the "1940 Act") and (b) as marked below, the Transferee
alone, or the Transferee's Family of Investment Companies, owned at least
$___________ [Note to reviewer - the amount in the previous blank must be at
least $100,000,000] in securities (other than the excluded securities referred
to in paragraph 4 below) as of ________________ [specify a date on or since the
end of the Transferee's most recently ended fiscal year]. For purposes of
determining the amount of securities owned by the Transferee or the Transferee's
Family of Investment Companies, the cost of such securities to the Transferee or
the Transferee's Family of Investment Companies was used.
___ The Transferee owned $____________ in securities (other than the
excluded securities referred to in paragraph 4 below) as of the end of
the Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
___ The Transferee is part of a Family of Investment Companies which owned
in the aggregate $____________ in securities (other than the excluded
securities referred to in paragraph 4 below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more Registered Investment Companies except for a unit investment trust whose
assets consist solely of shares of one or more Registered Investment Companies
(provided that each series of a "series company," as defined in Rule 18f-2 under
the 1940 Act, shall be deemed to be a separate investment company) that have the
same investment adviser (or, in the case of a unit investment trust, the same
depositor) or investment advisers (or depositors) that are affiliated (by virtue
of being majority-owned subsidiaries of the same parent or because one
investment adviser is a majority-owned subsidiary of the other).
4. The term "securities" as used herein does not include (a) securities
of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (b) bank deposit notes and
certificates of deposit, (c) loan participations, (d) repurchase agreements, (e)
securities owned but subject to a repurchase agreement and (f) currency,
interest rate and commodity swaps.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements
Exhibit 5-Page 1
made herein because one or more sales to the Transferee will be in reliance on
Rule 144A. In addition, the Transferee will only purchase for the Transferee's
own account.
6. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Purchased Certificates will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
IN WITNESS WHEREOF, the undersigned has caused this certificate to be
executed by its duly authorized representative this ____ of ____________,
______.
[Print Name of Transferee or
Adviser]
By:
Name:
Title:
IF AN ADVISER:
[Print Name of Transferee]
Date:____________________________
Exhibit 5-Page 2
EXHIBIT 6
---------
FORM OF TRANSFEREE AGREEMENT
OAKWOOD MORTGAGE INVESTORS, INC., SERIES _____-___
PASS-THROUGH CERTIFICATES
CLASS __
________________
[Name of Transferee]
________________
(DATE)
[NAME AND ADDRESS OF TRUSTEE]
Oakwood Mortgage Investors, Inc.
Oakwood Acceptance Corporation
0000 XxXxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Oakwood Mortgage Investors, Inc., Series _____-____
Pass-Through Certificates, Class __, representing a
[___% Percentage Interest][$ denomination]
Ladies and Gentlemen:
The undersigned (the "Transferee") proposes to purchase all or some of the
Class __, Class __, Class __ and Class __ Certificates (the "Purchased
Certificates"), issued by the Trust established pursuant to a pooling and
servicing agreement, dated as of ____________ (the "Series Agreement"), among
Oakwood Mortgage Investors, Inc. ("OMI"), Oakwood Acceptance Corporation ("OAC")
and _____________________________, as Trustee, which incorporates by reference
OMI's Standard Terms to Pooling and Servicing Agreement (September 2001 Edition)
(the "Standard Terms," and, collectively with the Series Agreement, the
"Agreement"). In doing so the Transferee hereby acknowledges and agrees as
follows:
Section 1. Definitions. Each capitalized term used herein and not
otherwise defined herein shall have the meaning ascribed to it in the Agreement.
Section 2. Representations and Warranties of the Transferee. In
connection with the proposed transfer of the Purchased Certificates, the
Transferee represents and warrants to OMI, OAC, the Servicer, the Trustee and
the Trust as follows:
Exhibit 6-Page 1
(a) The Transferee is purchasing the Purchased Certificates for its own
account as principal for investment purposes and not with a view to the
distribution of the Purchased Certificates, in whole or in part, in violation of
Section 5 of the Securities Act of 1933, as amended (the "Act").
(b) The Transferee has knowledge in financial and business matters and is
capable of evaluating the merits and risks of an investment in the Purchased
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risk of an investment in the Purchased
Certificates and can afford a complete loss of such investment.
(c) The Transferee confirms that OMI and the Servicer have made available
to the Transferee the opportunity to ask questions of, and receive answers from,
OMI and the Servicer concerning OMI, the Servicer, the Trust, the purchase by
the Transferee of the Purchased Certificates and all matters relating thereto,
and to obtain additional information relating thereto that OMI or the Servicer
possesses or can acquire without unreasonable effort or expense.
(d) The Transferee is an "accredited investor" as defined in paragraph
(1), (2), (3) or (7) of Rule 501(a) under the Act.
Section 3. Covenants of the Transferee. In consideration of the proposed
transfer, the Transferee covenants with each of OMI, OAC, the Servicer, the
Trustee and the Trust as follows:
(a) The Transferee will not make a public offering of the Purchased
Certificates, and will not reoffer or resell the Purchased Certificates in a
manner that would render the issuance and sale of the Purchased Certificates,
whether considered together with the resale or otherwise, a violation of the Act
or any state securities or "Blue Sky" laws or require registration pursuant
thereto.
(b) The Transferee agrees that, in its capacity as a holder of the
Purchased Certificates, it will assert no claim or interest in the Contracts by
reason of owning the Purchased Certificates other than with respect to amounts
that may be properly and actually payable to the Transferee pursuant to the
terms of the Pooling and Servicing Agreement and the Purchased Certificates.
(c) The Transferee hereby agrees to abide by the terms of the Agreement
that will be applicable to it as a Certificateholder, including, without
limitation, the indemnification provisions contained in the second sentence of
Section 5.05(a) of the Agreement.
(d) If applicable, the Transferee will comply in all material respects
with applicable regulatory guidelines relating to the ownership of mortgage
derivative products.
Section 4. Transfer of Purchased Certificates.
(a) The Transferee understands that the Purchased Certificates have not
been registered under the Act or any state securities laws and that no transfer
may be made unless the Purchased Certificates are registered under the Act and
under applicable state law or unless an exemption from such registration is
available. If requested by the Servicer or the Trustee, the Transferee and the
Holder of Purchased Certificates who desires to effect this transfer have
Exhibit 6-Page 2
certified to the Trustee, OMI and the Servicer as to the factual basis for the
registration or qualification exemption relied upon. The Transferee further
understands that neither OMI, OAC, the Servicer, the Trustee nor the Trust is
under any obligation to register the Purchased Certificates or make an exemption
from such registration available.
(b) In the event that the transfer is to be made within three years of the
date the Purchased Certificates were acquired by a non-Affiliate of OMI from OMI
or an Affiliate of OMI, the Servicer or the Trustee may require an Opinion of
Counsel (which shall not be an expense of OMI, OAC, the Servicer or the Trustee)
that such transfer is not required to be registered under the Act or state
securities laws.
(c) Any Certificateholder desiring to effect a transfer shall, and does
hereby agree to, indemnify OMI, the Servicer and the Trustee against any
liability that may result if the transfer is not exempt under federal or
applicable state securities laws.
(d) The transfer of the Purchased Certificates may be subject to
additional restrictions, as set forth in Section 5.05 of the Standard Terms of
the Pooling and Servicing Agreement, a copy of which is attached hereto as Annex
A.
All capitalized terms used but not otherwise defined herein have the
respective meanings assigned thereto in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Transferee
Certification and Agreement to be validly executed by its duly authorized
representative this ____ day of ___________, ____.
By:
Name:
Its:
Exhibit 6-Page 3
Annex A to Exhibit 6
ATTACH COPY OF SECTION 5.05 OF THE
STANDARD TERMS TO POOLING AND SERVICING AGREEMENT
Exhibit 6-Page 1
EXHIBIT 7
---------
BENEFIT PLAN AFFIDAVIT
Re: Oakwood Mortgage Investors, Inc., OMI
Trust ______ (the "Trust") Pass-
Through Certificates, Class ___,
Class __ and Class __
STATE OF ___________ )
) ss:
COUNTY OF __________ )
Under penalties of perjury, I, the undersigned, declare that, to the best
of my knowledge and belief, the following representations are true, correct, and
complete.
1. That I am a duly authorized officer of __________________________, a
_________ corporation (the "Purchaser"), whose taxpayer identification number is
__________, and on behalf of which I have the authority to make this affidavit.
2. That the Purchaser is acquiring the Class ______ Certificates ("the
Purchased Certificates"), each representing an interest in the Trust, for
certain assets of which one or more real estate mortgage investment conduit
("REMIC") elections are to be made under Section 860D of the Internal Revenue
Code of 1986, as amended (the "Code").
3. The Purchaser either:
(i) (A) is not a plan ("Plan") described in or subject to the
Department of Labor regulations set forth in 29 C.F.R. (S) 2510.3-101 (the
"Plan Asset Regulations"), a person acting on behalf of a Plan, or a person
using the assets of a Plan and (B) either (I) is not an insurance company
or (II) is an insurance company, in which case none of the funds used by
the Purchaser in connection with its purchase of the Purchased Certificates
constitute plan assets as defined in the Plan Asset Regulations ("Plan
Assets") and its purchase of the Purchased Certificates shall not result in
the certificates issued by or the assets of the Trust being deemed to be
Plan Assets;
(ii) is an insurance company and the exemptive relief granted by the
Department of Labor pursuant to Sections I and III of Prohibited
Transaction Class Exemption 95-60 is available with respect to the purchase
and holding of the Purchased Certificates and transactions in connection
with the servicing, operation and management of the Trust; or
(iii) has provided a "Benefit Plan Opinion," obtained at the
Purchaser's expense, satisfactory to OMI, the Servicer, and the Trustee. A
Benefit Plan Opinion is an opinion of counsel to the effect that the
proposed transfer will not (a) cause the assets of the Trust to be regarded
as Plan Assets, (b) give rise to a fiduciary duty under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), on the part
of OMI, the
Exhibit 7-Page 1
Servicer, or the Trustee, or (c) be treated as, or result in, a prohibited
transaction under Section 406 or 407 of ERISA or Section 4975 of the Code.
Exhibit 7-Page 2
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Pooling and Servicing Agreement, dated as
of ____________ __, _______, which incorporates by reference the Standard Terms
thereto (September 2001 Edition), among OMI, Oakwood Acceptance Corporation, and
_______________________, as Trustee.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly
executed on its behalf, by its duly authorized officer this ____ day of
___________, ____.
[Name of Purchaser]
By:
Name:
Its:
Personally appeared before me ________________, known or proved to me to be
the same person who executed the foregoing instrument and to be a
_________________________ of the Purchaser, and acknowledged to me that he
executed the same as his or her free act and deed and as the free act and deed
of the Purchaser.
Subscribed and sworn before me
this ______ day of ___________, ____.
___________________________________
Notary Public
My commission expires: ______________________________.
Exhibit 7-Page 3
EXHIBIT 8
---------
FORM OF RESIDUAL TRANSFEREE AGREEMENT
OAKWOOD MORTGAGE INVESTORS INC., SERIES ____-_______
PASS-THROUGH CERTIFICATES,
CLASS __
RESIDUAL TRANSFEREE
_________________
[Name of Transferee]
________________
(DATE)
[NAME AND ADDRESS OF TRUSTEE]
Oakwood Mortgage Investors, Inc.
Oakwood Acceptance Corporation
0000 XxXxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Oakwood Mortgage Investors, Inc., Series ____-____,
Pass-Through Certificates, Class __, representing a
[___% Percentage Interest][$ denomination]
Ladies and Gentlemen:
The undersigned (the "Transferee") proposes to purchase all or some of the
captioned Certificates (the "Residual Certificates"), issued by the Trust
established pursuant to a pooling and servicing agreement dated as of
__________________, ____ (the "Series Agreement"), among Oakwood Mortgage
Investors, Inc. ("OMI"), Oakwood Acceptance Corporation ("OAC"), and
_____________________________, as Trustee, which incorporates by reference the
Standard Terms thereto, June 2001 Edition (the "Standard Terms" and,
collectively with the Series Agreement, the "Agreement"). In doing so the
Transferee hereby acknowledges and agrees as follows:
Section 1. Definitions. Each capitalized term used herein and not
otherwise defined herein shall have the meaning ascribed to it in the Agreement.
Section 2. Representations and Warranties of the Transferee. In
connection with the proposed transfer of the Purchased Certificates, the
Transferee represents and warrants to OMI, OAC, the Servicer, the Trustee and
the Trust as follows:
Exhibit 8-Page 1
(a) The Transferee has knowledge in financial and business matters and is
capable of evaluating the merits and risks of an investment in the Residual
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed decision; and the Transferee is
able to bear the economic risk of an investment in the Residual Certificates and
can afford a complete loss of such investment.
(b) The Transferee represents that (i) it understands that each of the
Residual Certificates represents for federal income tax purposes a "residual
interest" in a real estate mortgage investment conduit (a "REMIC") and that, as
the holder of the Residual Certificates, it will be required to take into
account, in determining its taxable income, its pro rata share of the taxable
income of the REMIC, (ii) it understands that it may incur federal income tax
liabilities with respect to the Residual Certificates in excess of any cash
flows generated by the Residual Certificates and (iii) it has historically paid
its debts as they became due and has the financial wherewithal and intends to
continue to pay its debts as they come due in the future, including any tax
imposed on the income that it derives from the Residual Certificates as such
taxes become due.
*(c) The Transferee is acquiring the Residual Certificates for its own
account as principal and not with a view to the resale or distribution thereof,
in whole or in part, in violation of Section 5 of the Securities Act of 1933, as
amended (the "Act").
*(d) The Transferee confirms that OMI has made available to the Transferee
the opportunity to ask questions of, and receive answers from, OMI concerning
OMI, the Trust, the purchase by the Transferee of the Residual Certificates and
all matters relating thereto, and to obtain additional information relating
thereto that OMI possesses or can acquire unreasonable effort or expense.
Section 3. Covenants. The Transferee covenants:
---------
*(a) The Transferee will not make a public offering of the Residual
Certificates, and will not reoffer or resell the Residual Certificates in a
manner that would render the issuance and sale of the Residual Certificates
whether considered together with the resale or otherwise, a violation of the
Act, or any state securities or "Blue Sky" laws or require registration pursuant
thereto.
(b) The Transferee agrees that, in its capacity as a holder of the
Residual Certificates, it will assert no claim or interest in the Contracts by
reason of owning the Residual Certificates other than with respect to amounts
that may be properly and actually payable to the Transferee pursuant to the
terms of the Pooling and Servicing Agreement and the Certificates.
(c) If applicable, the Transferee will comply with respect to the Residual
Certificates in all material respects with applicable regulatory guidelines
relating to the ownership of mortgage derivative products.
(d) Upon notice thereof, the Transferee agrees to any future amendment to
the provisions of the Pooling and Servicing Agreement relating to the transfer
of the Residual Certificates (or any interest therein) that counsel to OMI or
the Trust may deem necessary to ensure that any such transfer will not result in
the imposition of any tax on the Trust.
___________________________
* These representations and covenants are to be deleted if the Residual
Securities are not Private Securities.
Exhibit 8-Page 2
(e) The Transferee hereby agrees that the Servicer or an affiliate thereof
will (i) supervise or engage in any action necessary or advisable to preserve
the status of the REMIC as a REMIC, (ii) be, and perform the functions of, the
REMIC's tax matters person ("TMP"), and (iii) employ on a reasonable basis
counsel, accountants, and professional assistance to aid in the preparation of
tax returns or the performance of the above.
(f) The Transferee hereby agrees to cooperate with the TMP and to take any
action required of it by the REMIC Provisions in order to create or maintain the
REMIC status of the REMIC.
(g) The Transferee hereby agrees that it will not take any action that
could endanger the REMIC status of any related REMIC or result in the imposition
of tax on any such REMIC unless counsel for, or acceptable to, the TMP has
provided an opinion that such action will not result in the loss of such REMIC
status or the imposition of such tax, as applicable.
Section 4. Additional Transfer Restrictions.
--------------------------------
Exhibit 8-Page 3
(a) No transfer of the Residual Certificates shall be made unless the
Servicer has consented in writing to such transfer. No Residual Certificate may
be transferred to a Disqualified Organization. The Servicer will not consent to
any proposed transfer (i) to any investor that it knows is a Disqualified
Organization or (ii) if the transfer involves less than an entire interest in a
Residual Certificate unless (A) the interest transferred is an undivided
interest or (B) the transferor or the transferee provides the Servicer with an
Opinion of Counsel obtained at its own expense to the effect that the transfer
will not jeopardize the REMIC status of any related REMIC. The Servicer's
consent to any transfer is further conditioned upon the Servicer's receipt from
the proposed transferee of (x) a Residual Transferee Agreement, (y) a Benefit
Plan Affidavit, and (z) either (A) if the transferee is a Non-U.S. Person, an
affidavit of the proposed transferee in substantially the form attached as
Exhibit 8-A to Exhibit 8 to the Standard Terms and a certificate of the
transferor stating whether the Class R Certificate has "tax avoidance potential"
as defined in Treasury Regulations Section 1.860G-3(a)(2), or (B) if the
transferee is a U.S. Person, an affidavit in substantially the form attached as
Exhibit 8-B to Exhibit 8 to the Standard Terms. In addition, if a proposed
transfer involves a Private Certificate, (1) the Servicer or the Trustee shall
require that the transferor and transferee certify as to the factual basis for
the registration or qualification exemption(s) relied upon to exempt the
transfer from registration under the Act and all applicable state securities or
"blue sky" laws, and (2) if the transfer is to be made within three years after
the acquisition thereof by a non-Affiliate of OMI from OMI or an Affiliate of
OMI, the Servicer or the Trustee also may require an Opinion of Counsel that
such transfer may be made without registration or qualification under the Act
and applicable state securities laws, which Opinion of Counsel shall not be
obtained at the expense of OMI, the Trustee or the Servicer. Notwithstanding the
foregoing, no Opinion of Counsel shall be required in connection with the
initial transfer of the Residual Certificates or their transfer by a broker or
dealer, if such broker or dealer was the initial transferee. Notwithstanding the
fulfillment of the prerequisites described above, the Servicer may withhold its
consent to, or the Trustee may refuse to recognize, a transfer of a Residual
Certificate, but only to the extent necessary to avoid a risk of
disqualification of a related REMIC as a REMIC or the imposition of a tax upon
any such REMIC. Any attempted transfer in violation of the foregoing
restrictions shall be null and void and shall not be recognized by the Trustee.
(b) If a tax or a reporting cost is borne by a related REMIC as a result
of the transfer of the Residual Certificates or any beneficial interest therein,
in violation of the restrictions referenced herein, the Transferor shall pay
such tax or cost and, if such tax or costs are not so paid, the Trustee, upon
notification from the Servicer, shall pay such tax or reporting cost with
amounts that otherwise would have been paid to the transferee of such Residual
Certificates. In that event, neither the Transferee nor the transferor shall
have any right to seek repayment of such amounts from OMI, the Servicer, the
Trustee, the Trust, the REMIC or the holders of any other Certificates, and none
of such parties shall have any liability for payment of any such tax or
reporting cost. In the event that a Residual Certificate is transferred to a
Disqualified Organization, the Servicer shall make, or cause to be made,
available the information necessary for the computation of the excise tax
imposed under section 860E(e) of the Code.
Exhibit 8-Page 4
Section 5. Acknowledgments.
---------------
(a) The Transferee acknowledges that, if the Residual Certificates are
Private Certificates, the Residual Certificates have not been registered under
the Act or registered or qualified under any state securities laws and that no
transfer may be made unless the Purchased Certificates are registered under the
Act and under applicable state law or unless an exemption from such registration
is available. The Transferee further understands that neither OMI, the Servicer
nor the Trust is under any obligation to register the Certificate or make an
exemption from such registration available.
(b) The Transferee acknowledges that if any United States federal income
tax is due at the time a Non-U.S. Person transfers a Residual Certificate, the
Trustee or its designated Paying Agent or other person who is liable to withhold
federal income tax from a distribution on a Residual Certificate under sections
1441 and 1442 of the Code and the regulations thereunder (the "Withholding
Agent") may (i) withhold an amount equal to the taxes due upon disposition of
the Certificate from future distributions made with respect to the Certificate
to the transferee (after giving effect to the withholding of taxes imposed on
such transferee), and (ii) pay the withheld amount to the Internal Revenue
Service unless satisfactory written evidence of payment of the taxes due by the
transferor has been provided to the Withholding Agent. Moreover, the
Withholding Agent may (x) hold distributions on a Certificate, without interest,
pending determination of amounts to be withheld, (y) withhold other amounts
required to be withheld pursuant to United States federal income tax law, if
any, from distributions that otherwise would be made to such transferee on each
Certificate it holds, and (z) pay to the Internal Revenue Service all such
amounts withheld.
(c) The Transferee acknowledges that the transfer of all or part of the
Residual Certificates that have "tax avoidance potential" (as defined in
Treasury Regulations section 1.860G-3(a)(2) or any successor provision) to a
Non-U.S. Person will be disregarded for all federal income tax purposes.
(d) The Transferee acknowledges that the transfer of the Residual
Certificates to a U.S. Person will be disregarded for all federal income tax
purposes if a significant purpose of the transfer is to impede the assessment or
collection of the taxes and expenses associated with the security within the
meaning of Treasury regulation section 1.860E-1(c)(1).
IN WITNESS WHEREOF, the undersigned has caused the Pooling and Servicing
Agreement be validly executed by its duly authorized representative as of the
day and year first above written.
[Name of Transferee]
By:
Its:
Exhibit 8-Page 5
EXHIBIT 8-A
-----------
OAKWOOD MORTGAGE INVESTORS, INC.
FOREIGN PERSON AFFIDAVIT
AND AFFIDAVIT PURSUANT TO SECTIONS
860D(a)(6)(A) and 860E(e)(4)
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
Re: Oakwood Mortgage Investors, Inc.
Series __________ Trust (the "Trust")
Pass-Through Certificates, Class __
STATE OF ___________ )
) ss.:
COUNTY OF __________ )
Under penalties of perjury, I, the undersigned, declare that to the best of
my knowledge and belief, the following representations are true, correct, and
complete:
1. I am a duly authorized officer of ___________________ (the
"Transferee"), and on behalf of which I have the authority to make this
affidavit.
2. The Transferee is acquiring all or a portion of the securities (the
"Residual Certificates"), which represent a residual interest in one or more
real estate mortgage investment conduits (each, a "REMIC") for which elections
are to be made under Section 860D of the Internal Revenue Code of 1986, as
amended (the "Code").
3. The Transferee is a foreign person within the meaning of Treasury
Regulation Section 1.860G-3(a)(1) (i.e., a person other than (i) a citizen or
resident of the United States, (ii) a corporation created or organized in or
under the laws of the United States, any state thereof or the District of
Columbia, including an entity treated as a corporation for federal income tax
purposes, (iii) a partnership (unless Treasury regulations are adopted that
provide otherwise) created or organized in or under the laws of the United
States, any state thereof or the District of Columbia, including an entity
treated as a partnership for federal income tax purposes, none of the interests
in which are owned, directly or indirectly through one or more intermediate
entities, by a Non-U.S. Person, (iv) an estate the income of which is subject to
United States federal income tax regardless of its source, (v) a trust if a
court within the United States is able to exercise primary supervision over the
administration of such trust and one or more United States fiduciaries have the
authority to control all substantial decisions of the trust (or to the extent
provided in applicable Treasury regulations, certain trusts in existence on
August 20, 1996 that are eligible to be treated as United States persons), or
(vi) a foreign person who would be subject to United States federal income
taxation on a net basis on income derived from a Residual Certificate (a "Non-
U.S. Person").
4. The Transferee agrees that it will not hold the Residual Certificates
in connection with a trade or business in the United States, and the Transferee
understands that it will be
Exhibit 8A-Page 1
subject to United States federal income tax under sections 871 and 881 of the
Code in accordance with section 860G of the Code and any Treasury regulations
issued thereunder on "excess inclusions" that accrue with respect to the
Residual Certificates during the period the Transferee holds the Residual
Certificates.
5. The Transferee understands that the federal income tax on excess
inclusions with respect to the Residual Certificates may be withheld in
accordance with section 860G(b) of the Code from distributions that otherwise
would be made to the Transferee on the Residual Certificates and, to the extent
that such tax has not been imposed previously, that such tax may be imposed at
the time of disposition of any such Residual Certificate pursuant to section
860G(b) of the Code.
6. The Transferee agrees (i) to file a timely United States federal
income tax return for the year in which disposition of a Residual Certificate it
holds occurs (or earlier if required by law) and will pay any United States
federal income tax due at that time and (ii) if any tax is due at that time, to
provide satisfactory written evidence of payment to the Trustee or its
designated paying agent or other person who is liable to withhold federal income
tax from a distribution on the Residual Certificates under sections 1441 and
1442 of the Code and the regulations thereunder (the "Withholding Agent").
7. The Transferee understands that, until such written notice is
provided, the Withholding Agent may (i) withhold an amount equal to the taxes
due upon disposition of a Residual Certificates from future distributions made
with respect to the Residual Certificate to subsequent transferees (after giving
effect to the withholding of taxes imposed on such subsequent transferees), and
(ii) pay the withheld amount to the Internal Revenue Service.
8. The Transferee understands that (i) the Withholding Agent may withhold
other amounts required to be withheld pursuant to United States federal income
tax law, if any, from distributions that otherwise would be made to such
transferee on each Residual Certificates it holds and (ii) the Withholding Agent
may pay to the Internal Revenue Service amounts withheld on behalf of any and
all former holders of each Residual Certificate held by the Transferee.
9. The Transferee understands that if it transfers a Residual Certificate
(or any interest therein) to a U.S. Person, the Withholding Agent may disregard
the transfer for federal income tax purposes if the transfer would have the
effect of allowing the Transferee to avoid tax on accrued excess inclusions and
may continue to withhold tax from future distributions as though the Residual
Certificate were still held by the Transferee.
10. The Transferee understands that a transfer of a Residual Certificate
(or any interest therein) to a Non-U.S. Person (i.e., a foreign person who is
not subject to net United States federal income tax with respect to such
Residual Certificate) will not be recognized unless the Withholding Agent has
received from the transferee an affidavit in substantially the same form as this
affidavit containing these same agreements and representations.
11. The Transferee understands that distributions on a Residual
Certificate may be delayed, without interest, pending determination of amounts
to be withheld.
12. The Transferee is not a "Disqualified Organization" (as defined
below), and the Transferee is not acquiring a Residual Certificate for the
account of, or as agent or nominee of,
Exhibit 8A-Page 2
or with a view to the transfer of direct or indirect record or beneficial
ownership to, a Disqualified Organization. For the purposes hereof, a
Disqualified Organization is any of the following: (i) the United States, any
State or political subdivision thereof, any foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing; (ii) any organization (other than a xxxxxx'x cooperative as defined
in Section 521 of the Code) that is exempt from federal income taxation
(including taxation under the unrelated business taxable income provisions of
the Code); (iii) any rural telephone or electrical service cooperative described
in Section 1381(a)(2)(C) of the Code; or (iv) any other entity so designated by
Treasury rulings or regulations promulgated or otherwise in effect as of the
date hereof. In addition, a corporation will not be treated as an
instrumentality of the United States or of any state or political subdivision
thereof if all of its activities are subject to tax and, with the exception of
the Federal Home Loan Mortgage Corporation, a majority of its board of directors
is not selected by such governmental unit.
13. The Transferee agrees to consent to any amendment of the Pooling and
Servicing Agreement that shall be deemed necessary by OMI (upon the advice of
counsel to OMI) to constitute a reasonable arrangement to ensure that no
interest in a Residual Certificate will be owned directly or indirectly by a
Disqualified Organization.
14. The Transferee acknowledges that Section 860E(e) of the Code would
impose a substantial tax on the transferor or, in certain circumstances, on an
agent for the transferee, with respect to any transfer of any interest in any
Residual Certificate to a Disqualified Organization.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement, dated as of
_______________, ____, which incorporates by reference the Standard Terms
thereto (September 2001 Edition), among Oakwood Mortgage Investors, Inc.,
Oakwood Acceptance Corporation, and ____________________, as Trustee.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be duly
executed on its behalf, by its duly authorized officer as of the _______ day of
_____________, ____.
[Name of Transferee]
By:
Its:
Personally appeared before me ___________________________, known or proved
to me to be the same person who executed the foregoing instrument and to be a
______________________ of the Transferee, and acknowledged to me that he or she
executed the same as his or her free act and deed and as the free act and deed
of the Transferee.
Subscribed and sworn before me this ______ day of __________, ____.
Exhibit 8A-Page 3
Notary Public
My commission expires the _____ day of ________________, ____.
Exhibit 8A-Page 4
EXHIBIT 8-B
-----------
OAKWOOD MORTGAGE INVESTORS, INC.
AFFIDAVIT PURSUANT TO SECTIONS
860D(a)(6)(A) and 860E(e)(4)
OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED
Re: Oakwood Mortgage Investors, Inc.
Series ________ Trust (the "Trust")
Pass-Through Certificates, Class ___
STATE OF __________________________ )
) ss.:
COUNTY OF _________________________ )
Under penalties of perjury, I, the undersigned declare that, to the best of
my knowledge and belief, the following representations are true, correct and
complete:
1. I am a duly authorized officer of ______________________ (the
"Transferee"), on behalf of which I have the authority to make this affidavit.
2. The Transferee is acquiring all or a portion of the securities (the
"Residual Certificates"), which represent a residual interest in one or more
real estate mortgage investment conduits (each, a "REMIC") for which elections
are to be made under Section 860D of the Internal Revenue Code of 1986, as
amended (the "Code").
3. The Transferee either is (i) a citizen or resident of the United
States, (ii) a corporation created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, including an
entity treated as a corporation for federal income tax purposes, (iii) a
partnership (unless Treasury regulations are adopted that provide otherwise)
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, including an entity treated as a
partnership for federal income tax purposes, none of the interests in which are
owned, directly or indirectly through one or more intermediate entities, by a
Non-U.S. Person, (iv) an estate the income of which is subject to United States
federal income tax regardless of its source, (v) a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust and one or more United States fiduciaries have the authority to
control all substantial decisions of the trust (or to the extent provided in
applicable Treasury regulations, certain trusts in existence on August 20, 1996
that are eligible to be treated as United States persons), or (vi) a foreign
person who would be subject to United States federal income taxation on a net
basis on income derived from a Residual Certificate (a "U.S. Person").
4. The Transferee is a not a "Disqualified Organization" (as defined
below), and the Transferee is not acquiring a Residual Certificate for the
account of, or as agent or nominee of, or with a view to the transfer of direct
or indirect record or beneficial ownership to, a
Exhibit 8B-Page 1
Disqualified Organization. For the purposes hereof, a Disqualified Organization
is any of the following: (i) the United States, any State or political
subdivision thereof, any foreign government, any international organization, or
any agency or instrumentality of any of the foregoing; (ii) any organization
(other than a xxxxxx'x cooperative as defined in Section 521 of the Code) that
is exempt from federal income taxation (including taxation under the unrelated
business taxable income provisions of the Code); (iii) any rural telephone or
electrical service cooperative described in (S) 1381(a)(2)(C) of the Code; or
(iv) any other entity so designated by Treasury rulings or regulations
promulgated or otherwise in effect as of the date hereof. In addition, a
corporation will not be treated as an instrumentality of the United States or of
any state or political subdivision thereof if all of its activities are subject
to tax and, with the exception of the Federal Home Loan Mortgage Corporation, a
majority of its board of directors is not selected by such governmental unit.
5. The Transferee agrees to consent to any amendment of the Pooling and
Servicing Agreement that shall be deemed necessary by the Issuer (upon advice of
counsel to the Issuer) to constitute a reasonable arrangement to ensure that no
interest in a Residual Certificate will be owned directly or indirectly by a
Disqualified Organization.
6. The Transferee acknowledges that Section 860E(e) of the Code would
impose a substantial tax on the transferor or, in certain circumstances, on an
agent for the transferee, with respect to any transfer of any interest in any
Residual Certificate to a Disqualified Organization.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement, dated as of
_______________, ____, which incorporates by reference the Standard Terms
thereto (September 2001 Edition), among Oakwood Mortgage Investors, Inc., the
Servicer, and ____________________, as Trustee.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be duly
executed on its behalf by its duly authorized officer this ____ day of ______,
____.
[Name of Transferee]
By:
Its:
Personally appeared before me ___________________, known or proved to me to
be the same person who executed the foregoing instrument and to be a
_______________ of the Transferee, and acknowledged to me that he or she
executed the same as his or her free act and deed and as the free act and deed
of the Transferee.
Subscribed and sworn before me this ____ day of ________, ____.
Notary Public
Exhibit 8B-Page 2
My commission expires the _____ day of ________________, ____.
Exhibit 8B-Page 3
EXHIBIT 9
---------
FORM OF POWER OF ATTORNEY
Oakwood Acceptance Corporation ("OAC"), pursuant to the Pooling and
Servicing Agreement, dated as of ______________________, _______, among Oakwood
Mortgage Investors, Inc. ("OMI"), OAC, and _____________________________, as
Trustee (the "Trustee"), which incorporates by reference OMI's Standard Terms to
Pooling and Servicing Agreement (September 2001 Edition) (the "Standard Terms"),
hereby irrevocably constitutes and appoints the Trustee its true and lawful
attorney-in-fact and agent, to execute, acknowledge, verify, swear to, deliver,
record and file, in its name, place and stead, assignments of Mortgages relating
to Loan Secured Contracts from OAC to the Trustee as contemplated by Section
2.02 of the Standard Terms. If required, OAC shall execute and deliver to the
Trustee, upon the Trustee's request therefor, such further designations, powers
of attorney or other instruments as the Trustee may reasonably deem necessary
for the purposes hereof.
Capitalized terms used and not otherwise defined herein shall have the
respective meanings assigned to them in the Agreement.
OAKWOOD ACCEPTANCE CORPORATION
By:
Name:
Title:
Acknowledged and Agreed:
[Name of Trustee]
-----------------
By:
Name:
Title:
Path: DOCSOPEN\XXXXXXXX\08018\40944\000540\1bp_02!.DOC
Doc #: 61836; V. 2
Doc Name: Pooling and Servicing Standard Terms (May 2001 Edition)
Author: Rich, David, 08018
Last Edit: 06/05/2001 11:34 AM
Exhibit 9-Page 1
