EXHIBIT 99.2
EXECUTION COPY
ORIGEN FINANCIAL L.L.C.,
as Servicer,
ORIGEN SERVICING, INC.,
as Subservicer and Administrator,
VANDERBILT MORTGAGE AND FINANCE, INC.
as Backup Servicer
ORIGEN MANUFACTURED HOUSING CONTRACT TRUST 2004-B
as Issuer
and
JPMORGAN CHASE BANK,
as Indenture Trustee,
SERVICING AGREEMENT
Dated as of September 1, 2004
Manufactured Housing Installment Sales Contracts
and Installment Loan Agreements
Origen Manufactured Housing Contract Trust 2004-B
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions.................................................................................... 2
Section 1.02. Other Definitional Provisions.................................................................. 2
Section 1.03. Interest Calculations.......................................................................... 2
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01. Covenants, Representations and Warranties Regarding the Servicer............................... 3
Section 2.02. Existence...................................................................................... 4
Section 2.03. Enforcement of Representations and Warranties.................................................. 4
ARTICLE III
ADMINISTRATION AND SERVICING OF CONTRACTS
Section 3.01. Responsibility for Contract Administration..................................................... 5
Section 3.02. Standard of Care............................................................................... 5
Section 3.03. Records........................................................................................ 6
Section 3.04. Inspection: Electronic File.................................................................... 6
Section 3.05. Collection Account............................................................................. 6
Section 3.06. Permitted Withdrawals.......................................................................... 8
Section 3.07. Enforcement.................................................................................... 9
Section 3.08. Indenture Trustee to Cooperate................................................................. 10
Section 3.09. Costs and Expenses............................................................................. 11
Section 3.10. Maintenance of Insurance....................................................................... 11
Section 3.11. Repossession................................................................................... 12
Section 3.12. Subservicing Arrangements...................................................................... 14
Section 3.13. Retitling; Security Interests.................................................................. 14
Section 3.14. Payment of Taxes............................................................................... 15
Section 3.15. Statement as to Compliance..................................................................... 15
Section 3.16. Independent Public Accountants' Servicing Report............................................... 16
Section 3.17. Optional Redemption............................................................................ 16
ARTICLE IV
SERVICING CERTIFICATE
Section 4.01. Electronic Files............................................................................... 17
Section 4.02. Exchange Act Reporting......................................................................... 17
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ARTICLE V
THE SERVICER AND THE BACKUP SERVICER
Section 5.01. Liability of the Servicer and the Backup Servicer.............................................. 18
Section 5.02. Merger or Consolidation of or Assumption of the Obligations of the Servicer and the Backup
Servicer...................................................................................................... 18
Section 5.03. Limitation on Liability of the Servicer and Others............................................. 19
Section 5.04. Servicer and Backup Servicer Not to Resign..................................................... 20
Section 5.05. Delegation of Duties........................................................................... 20
Section 5.06. Rights of the Issuer in Respect of the Servicer................................................ 20
Section 5.07. Indemnification................................................................................ 21
ARTICLE VI
DEFAULT
Section 6.01. Servicer Events of Default..................................................................... 21
Section 6.02. Transfer....................................................................................... 22
Section 6.03. Backup Servicer to Act, Appointment of Successor............................................... 23
Section 6.04. Notification to Noteholders.................................................................... 24
Section 6.05. Effect of Transfer............................................................................. 25
Section 6.06. Transfer of Collection Account................................................................. 25
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment...................................................................................... 26
Section 7.02. GOVERNING LAW.................................................................................. 26
Section 7.03. Notices........................................................................................ 26
Section 7.04. Severability of Provisions..................................................................... 28
Section 7.05. Third-Party Beneficiaries...................................................................... 28
Section 7.06. Counterparts................................................................................... 28
Section 7.07. Effect of Headings and Table of Contents....................................................... 28
Section 7.08. Termination.................................................................................... 29
Section 7.09. No Petition.................................................................................... 29
Section 7.10. No Recourse.................................................................................... 29
Section 7.11. Indenture Trustee Rights....................................................................... 29
ARTICLE VIII
DUTIES OF THE SUBSERVICER AS ADMINISTRATOR
Section 8.01. Administrative Duties.......................................................................... 29
Section 8.02. Records........................................................................................ 31
Section 8.03. Additional Information to be Furnished......................................................... 31
Section 8.04. No Recourse to Owner Trustee................................................................... 31
Section 8.05. Exchange Act Reporting......................................................................... 31
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EXHIBIT A LIST OF CONTRACTS........................................................................... A-1
EXHIBIT B FORM OF CERTIFICATE REGARDING REPURCHASED CONTRACTS ORIGEN FINANCIAL L.L.C. CERTIFICATE
REGARDING REPURCHASED CONTRACTS....................................................................... B-1
EXHIBIT C-1 FORM OF CERTIFICATION TO BE PROVIDED BY THE ADMINISTRATOR WITH FORM 10-K.................. C-1-1
EXHIBIT C-2 FORM OF CERTIFICATION TO BE PROVIDED TO THE ADMINISTRATOR BY THE INDENTURE TRUSTEE........ C-2-1
EXHIBIT C-3 FORM OF CERTIFICATION TO BE PROVIDED TO THE ADMINISTRATOR BY THE SERVICER................. C-3-1
EXHIBIT D OFFICER'S CERTIFICATE REGARDING ANNUAL STATEMENT OF COMPLIANCE.............................. D-1
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This SERVICING AGREEMENT, dated as of September 1, 2004, among
Origen Financial L.L.C., as servicer (the "Servicer"), Origen Servicing, Inc.,
as Subservicer (the "Subservicer"), Vanderbilt Mortgage and Finance, Inc., as
Backup Servicer (the "Backup Servicer"), Origen Manufactured Housing Contract
Trust 2004-B, as Issuer (the "Issuer") and JPMorgan Chase Bank, as Indenture
Trustee (the "Indenture Trustee").
W I T N E S S E T H T H A T:
WHEREAS, pursuant to the terms of the Asset Purchase Agreement,
Origen Residential Securities, Inc. (the "Depositor") will acquire the Contracts
from Origen Securitization Company, LLC (the "Seller"), which had previously
acquired the Contracts from Origen Financial L.L.C.
WHEREAS, the Depositor will create Origen Manufactured Housing
Contract Trust 2004-B, a Delaware statutory trust, and will transfer the
Contracts and all of its rights under the Asset Purchase Agreement to the
Issuer;
WHEREAS, pursuant to the terms of a Trust Agreement dated as of
September 1, 2004, (the "Trust Agreement"), among the Depositor, as depositor,
Wilmington Trust Company, as owner trustee (the "Owner Trustee") and JPMorgan
Chase Bank, as certificate registrar and certificate paying agent, the Depositor
will convey the Contracts to the Issuer in exchange for the Certificates (as
defined below);
WHEREAS, pursuant to the terms of the Trust Agreement, the Issuer
will issue and transfer to or at the direction of the Depositor, the Trust
Certificates, Series 2004-B (the "Certificates");
WHEREAS, pursuant to the terms of an Indenture, dated as of
September 1, 2004 (the "Indenture") between the Issuer and JPMorgan Chase Bank,
as indenture trustee (the "Indenture Trustee"), the Issuer will pledge the
Contracts and issue and transfer to or at the direction of the Depositor the
Origen Manufactured Housing Contract Trust Notes, Series 2004-B, Class A-1,
Class A-2, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-l, Class M-2, Class B-1 and Class B-2
Notes (collectively, the "Notes"); and
WHEREAS, pursuant to the terms of this Servicing Agreement, the
Servicer will be responsible for servicing the Contracts set forth on the List
of Contracts attached hereto as Exhibit A-1, directly or through one or more
subservicers, and the Servicer engages the Subservicer to perform the primary
servicing of the Contracts pursuant to the terms of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. For all purposes of this Servicing Agreement,
except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in the Definitions contained in Appendix A to the
Indenture which is incorporated by reference herein. All other capitalized terms
used herein shall have the meanings specified herein.
Section 1.02 Other Definitional Provisions.
(a) All terms defined in this Servicing Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Servicing Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Servicing Agreement or in any such certificate or other
document, and accounting terms partly defined in this Servicing Agreement or in
any such certificate or other document, to the extent not defined, shall have
the respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Servicing Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Servicing Agreement or in any such
certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar import
when used in this Servicing Agreement shall refer to this Servicing Agreement as
a whole and not to any particular provision of this Servicing Agreement; Section
and Exhibit references contained in this Servicing Agreement are references to
Sections and Exhibits in or to this Servicing Agreement unless otherwise
specified; and the term "including" shall mean "including without limitation".
(d) The definitions contained in this Servicing Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
Section 1.03 Interest Calculations. All calculations of interest hereunder
that are made in respect of the Principal Balance of a Contract shall be made on
the basis of a 360-day year consisting of twelve 30-day months, notwithstanding
the terms of the related Contract or Mortgage Note and Mortgage.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01 Covenants, Representations and Warranties Regarding the
Servicer. By its execution and delivery of this Agreement, Origen Financial
L.L.C., as initial Servicer, and Origen Servicing, Inc., as initial Subservicer,
each makes the following representations, warranties and covenants as of the
Closing Date on which the Trust relies in accepting the Contracts and issuing
the Certificates and the Notes.
(A) Formation and Good Standing. The Servicer is a limited liability
company, and the Subservicer is a corporation, formed, validly existing
and in good standing under the laws of the jurisdiction of its formation
and has the power to own its assets and to transact the business in which
it is currently engaged. Each of the Servicer and the Subservicer is duly
qualified to do business as a foreign limited liability company or
corporation and is in good standing in each jurisdiction in which the
character of the business transacted by it or properties owned or leased
by it requires such qualification and in which the failure so to qualify
would have a material adverse effect on the business, properties, assets,
or condition (financial or other) of the Servicer or the Subservicer, as
applicable.
(B) Authorization: Binding Obligations. Each of the Servicer and the
Subservicer has the power and authority to make, execute, deliver and
perform this Agreement and all of the transactions contemplated under this
Agreement and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement. When executed and
delivered, this Agreement will constitute the legal, valid and binding
obligation of each of the Servicer and the Subservicer enforceable in
accordance with its terms, except as enforcement of such terms maybe
limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and by the availability of
equitable remedies.
(C) No Consent Required. Neither the Servicer nor the Subservicer is
required to obtain the consent of any other party or any consent, license,
approval or authorization from, or registration or declaration with, any
governmental authority, bureau or agency in connection with the execution,
delivery, performance, validity or enforceability of this Agreement,
except for such consents, licenses, approvals and authorizations as have
been obtained.
(D) No Violations. The execution, delivery and performance by the
Servicer and the Subservicer of this Agreement and the fulfillment of its
terms will not violate any provision of any existing law or regulation or
any order or decree of any court or the related Certificate of
Incorporation or Bylaws or other organizational document of the Servicer
or the Subservicer, or constitute a material breach of any mortgage,
indenture, contract or other agreement to which the Servicer or the
Subservicer is a party or by which the Servicer or Subservicer may be
bound.
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(E) Litigation. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending, or
to the knowledge of the Servicer or the Subservicer threatened, against
the Servicer or the Subservicer or any of their respective properties or
with respect to this Agreement or the Notes which, if adversely
determined, would in the opinion of the Servicer or the Subservicer have a
material adverse effect on the transactions contemplated by this
Agreement.
(F) Chief Executive Office. The chief executive office of each of
the Servicer and the Subservicer is at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(G) No Default. Neither the Servicer nor the Subservicer is in
default with respect to any order or decree of any court or any order,
regulation or demand of any federal, state, municipal or governmental
agency, which default would materially and adversely affect its condition
(financial or other) or operations or its properties or the consequences
of which would materially and adversely affect its performance hereunder.
Neither the Servicer nor the Subservicer is in default under any agreement
involving financial obligations or on any outstanding obligation which
would materially adversely impact its financial condition or operations or
legal documents associated with the transaction contemplated by this
Agreement.
(H) No Amendments. Neither the Servicer nor the Subservicer shall
extend or otherwise amend the terms of any Contract, except in accordance
with Section 3.07.
Section 2.02 Existence. The Issuer will keep in full effect its existence,
rights and franchises as a statutory trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other state or of the United States of America,
in which case the Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Servicing Agreement.
Section 2.03 Enforcement of Representations and Warranties. The Servicer
shall cause the Originator to repurchase a Contract, at its Repurchase Price,
not later than the last day of the month prior to the month that is 90 days
after the day on which the Originator, the Seller, the Servicer or the Indenture
Trustee first discovers a breach of a representation or warranty of the
Originator or the Seller set forth in Sections 3.1, 3.2, 3.3, 3.5 or 3.6 of the
Asset Purchase Agreement that materially adversely affects the Issuer's, the
Noteholders' or the Certificateholders' interest in such Contract and which
breach has not been cured; provided, however, that (i) in the event that a party
other than the Originator first becomes aware of such breach, such discovering
party shall notify the Originator in writing within five Business Days of the
date of such discovery and (ii) with respect to any Contract incorrectly
described on the List of Contracts with respect to unpaid principal balance,
which the Originator would otherwise be required to repurchase pursuant to this
Section, the Servicer may cause the Originator, in lieu of repurchasing such
Contract, to deliver to the Servicer or the Subservicer for deposit in the
Collection Account no later than the first Determination Date that is 90 or more
days from the date of such discovery cash in an amount sufficient to cure such
deficiency or discrepancy. Upon receipt by the Indenture Trustee of a
certificate of a Servicing Officer in the form attached
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hereto as Exhibit B, any such cash so deposited shall be distributed to
Noteholders and Certificateholders on the immediately following Payment Date as
a collection of principal on such Contract. Notwithstanding any other provision
of this Agreement, the obligation of the Servicer under this Section to enforce
the Originator's obligations pursuant to the Asset Purchase Agreement shall not
terminate upon a Service Transfer pursuant to Article VI. Notwithstanding the
foregoing, the Servicer shall cause the Originator to repurchase any
Land-and-Home Contract, at such Contract's Repurchase Price, or substitute for
it an Eligible Substitute Asset as described in Section 2.03(b), if the
Originator has failed to deliver the related Land and Home Contract File to the
Custodian within 30 days of the Closing Date, subject to delays in delivery of
recordable documents. Each of the parties to this Agreement acknowledge that the
provisions of this Section 2.03 are an obligation solely of the Servicer and the
Originator and not of any other party to this Agreement. Notwithstanding the
foregoing, in the event the Backup Servicer succeeds to the servicing rights and
responsibilities as provided in Section 6.02 and/or Section 6.03, the Backup
Servicer shall have no obligation under this Section 2.03 other than to use its
commercially reasonable efforts to request and/or demand the Originator to
perform its obligations under this Section 2.03.
ARTICLE III
ADMINISTRATION AND SERVICING OF CONTRACTS
Section 3.01 Responsibility for Contract Administration. The Servicer
shall have the sole obligation to manage, administer, service and make
collections on the Contracts and perform or cause to be performed all
contractual and customary undertakings of the holder of the Contracts to the
Obligor. At the written request of the Servicer, accompanied by the form of
power of attorney or other documents being requested, the Indenture Trustee
shall furnish to the Servicer any powers of attorney and other documents
necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder, and the Indenture Trustee shall not be held
responsible for any acts by the Servicer in its uses of any such powers of
attorney or other document. The Servicer shall indemnify the Indenture Trustee
for any reasonable costs, liabilities and expenses (including reasonable
attorneys' fees) incurred by the Indenture Trustee in connection with the
intentional or negligent misuse of such power of attorney by the Servicer, as
applicable. Notwithstanding anything contained herein to the contrary, the
Servicer shall not without the Indenture Trustee's written consent (i) initiate
any action, suit or proceeding solely under the Indenture Trustee's name without
indicating the Servicer's representative capacity or (ii) knowingly cause the
Indenture Trustee to be registered to do business in any state, provided,
however, that the preceding clause (i) shall not apply to the initiation of
actions relating to Contracts that the Servicer is servicing pursuant to its
respective duties herein. The limitations of the preceding clause shall not be
construed to limit any duty or obligation imposed on the Indenture Trustee under
any other provision of this Agreement.
Origen Financial L.L.C. is hereby appointed the Servicer until such time
as any Service Transfer shall be effected under Article VI.
Section 3.02 Standard of Care. In managing, administering, servicing and
making collections on the Contracts pursuant to this Agreement, the Servicer
shall exercise that degree of skill and care consistent with the same degree of
skill and care that the Servicer exercises with
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respect to similar contracts serviced by the Servicer; provided, however, that
(i) such degree of skill and care shall be at least as favorable as the degree
of skill and care generally applied by servicers of manufactured housing
installment sales contracts for institutional investors and (ii) notwithstanding
the foregoing, the Servicer shall not release or waive the right to collect the
unpaid balance on any Contract unless it makes the determination that acceptance
of the liquidation proceeds from the related Obligor would result in the Trust
receiving a greater amount of collections than the Net Liquidation Proceeds that
would result from repossessing or foreclosing and liquidating the related
Manufactured Home.
Section 3.03 Records. The Servicer shall, during the period it is servicer
hereunder, maintain such books of account and other records as will enable the
Indenture Trustee to determine the status of each Contract.
Section 3.04 Inspection: Electronic File.
(a) At all times during the term hereof, the Servicer shall afford the
Indenture Trustee and its authorized agents reasonable access during normal
business hours to the Servicer's records, which have not previously been
provided to the Trust, relating to the Contracts and will cause its personnel to
assist in any examination of such records by the Indenture Trustee or its
authorized agents. The examination referred to in this Section will be conducted
in a manner which does not unreasonably interfere with the Servicer's normal
operations or customer or employee relations. Without otherwise limiting the
scope of the examination the Indenture Trustee may make, the Indenture Trustee
may, using generally accepted audit procedures, verify the status of each
Contract and review the Electronic Ledger and records relating thereto for
conformity to Monthly Reports prepared pursuant to Section 3.26 of the Indenture
and compliance with the standards represented to exist as to each Contract in
this Agreement.
(b) At all times during the term hereof, the Servicer shall keep available
a copy of the List of Contracts at its principal executive office for inspection
by Noteholders and Certificateholders.
(c) On or before the fourth Business Day prior to each Payment Date, the
Servicer shall determine the Amount Available for such Payment Date to be
remitted to the Note Payment Account and shall provide to the Indenture Trustee
and the Backup Servicer an electronic file (the "Electronic File") setting forth
such amount and any other information necessary for the Indenture Trustee to
perform the calculations required hereunder and under the Indenture and prepare
the Monthly Report. The Indenture Trustee will be entitled to rely on
information supplied by the Servicer without independent verification.
Section 3.05 Collection Account.
(a) On or before the Closing Date, the Servicer shall establish the
Collection Account with JPMorgan Chase Bank, which must be an Eligible Account
and notify the Backup Servicer of the location of the Collection Account. The
Collection Account shall be entitled "Origen Servicing for the benefit of
JPMorgan Chase Bank as Indenture Trustee for the benefit of holders of Origen
Manufactured Housing Contract Trust Collateralized Notes, Series 2004-B." The
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Servicer shall pay into the Collection Account as promptly as practicable (not
later than the second Business Day) following receipt thereof:
(i) all payments received after the Cut-off Date on account of
principal on the Contracts and all Principal Prepayments collected after
the Cut-off Date;
(ii) all payments received after the Cut-off Date on account of
interest on the Contracts;
(iii) all Net Liquidation Proceeds;
(iv) all Insurance Proceeds unless to be used to directly offset the
cost of repairing the related property;
(v) any amounts payable in connection with the repurchase of any
Contract pursuant to Section 2.03 hereof or Section 3.7 of the Asset
Purchase Agreement; and
(vi) any other amount required to be deposited in the Collection
Account pursuant to this Agreement;
provided, however, that with respect to each Due Period, the Servicer shall be
permitted to retain the Monthly Servicing Fee for the related Payment Date from
payments in respect of interest on the Contracts in accordance with Section 3.06
hereof. The foregoing requirements respecting deposits to the Collection Account
are exclusive, it being understood that, without limiting the generality of the
foregoing, the Servicer need not deposit in the Collection Account amounts
representing late payment fees, assumption fees, extension fees or escrow
deposits payable by Obligors, which amounts shall be property of the Servicer.
The Servicer agrees that all amounts paid into the Collection Account under this
Agreement shall be held in trust for the Indenture Trustee, the Noteholders and
the Certificateholders until payment or withdrawal of any such amounts is
authorized under this Agreement.
If the Servicer so directs, the institution maintaining the
Collection Account shall, in the name of the Indenture Trustee in its capacity
as such, invest the amounts in the Collection Account in Permitted Investments
that mature not later than one Business Day prior to the next succeeding Payment
Date. All income and gain from such investments shall be payable to the
Servicer. An amount equal to any net loss on such investments shall be deposited
in the Collection Account by the Servicer out of its own funds immediately as
realized; provided that if the Backup Servicer succeeds to the servicing rights
and responsibilities as provided in Section 6.02 and/or Section 6.03, the Backup
Servicer shall have no obligation or responsibility for any losses occasioned by
or arising from the prior Servicer's investments. The Indenture Trustee shall in
no way be responsible or liable for losses on amounts invested in accordance
with the provisions hereof. Funds in the Collection Account not so invested must
be insured to the extent of the maximum amount insurable by the Federal Deposit
Insurance Corporation.
If the Servicer so directs, the institution maintaining the Note
Payment Account shall, in the name of the Indenture Trustee in its capacity as
such, invest the amounts in the Note Payment Account in Permitted Investments
that mature not later than one Business Day prior to the next succeeding Payment
Date. All income and gain from such investments shall be payable
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to the Servicer. An amount equal to any net loss on such investments shall be
deposited in the Note Payment Account by the Servicer out of its own funds
immediately as realized; provided that if the Backup Servicer succeeds to the
servicing rights and responsibilities as provided in Section 6.02 and/or Section
6.03, the Backup Servicer shall have no obligation or responsibility for any
losses occasioned by or arising from the prior Servicer's investments. The
Indenture Trustee shall in no way be responsible or liable for losses on amounts
invested in accordance with the provisions hereof. Funds in the Note Payment
Account not so invested must be insured to the extent of the maximum amount
insurable by the Federal Deposit Insurance Corporation.
(b) If at anytime the Servicer receives notice (from each Rating Agency,
the Indenture Trustee or otherwise) that the Collection Account has ceased to be
an Eligible Account, the Servicer must, as soon as practicable but in no event
later than 5 Business Days of the Servicer's receipt of such notice, transfer
the Collection Account and all funds and Permitted Investments therein to an
Eligible Account. Following any such transfer, the Servicer must notify each
Rating Agency and the Indenture Trustee of the location of the Collection
Account.
Section 3.06 Permitted Withdrawals. The Servicer may, from time to time as
provided herein, make withdrawals from the Collection Account of amounts
deposited in said account pursuant to Section 3.05 that are attributable to the
Contracts for the following purposes:
(a) to remit the Amount Available to the Indenture Trustee for deposit in
the Note Payment Account to make payments in the amounts and in the manner
provided for in Section 8.02 of the Indenture;
(b) to pay to the Originator with respect to each Contract or property
acquired in respect thereof that has been repurchased or replaced pursuant to
Section 2.03 hereof or Section 3.7 of the Asset Purchase Agreement, all amounts
received thereon and not required to be distributed to Noteholders or
Certificateholders as of the date on which the related Principal Balance or
Repurchase Price is determined;
(c) to reimburse the Servicer out of Liquidation Proceeds for Liquidation
Expenses incurred by it, to the extent such reimbursement is permitted pursuant
to Section 3.09, and to reimburse the Servicer as provided in Sections 3.08,
3.11, 3.13 and 6.02;
(d) to withdraw any amount deposited in the Collection Account that was
not required to be deposited therein;
(e) to make any rebates or adjustments deemed necessary by the Servicer
pursuant to Section 3.07(d); or
(f) to reimburse the Servicer (1) for any accrued unpaid Monthly Servicing
Fees and (2) for unreimbursed Servicing Advances, including Nonrecoverable
Advances, to the extent not otherwise retained. The Servicer's right to
reimbursement for Servicing Advances that are not Nonrecoverable Advances shall
be limited to late collections on the related Contract, including Liquidation
Proceeds, Insurance Proceeds and such other amounts as maybe collected by the
Servicer from the related Obligor or otherwise relating to the Contract in
respect of which such reimbursed amounts are owed. Except with respect to
Nonrecoverable Advances, the Servicer's right to reimbursement for unreimbursed
Servicing Advances shall be limited to late collections
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of interest on any Contract and to Liquidation Proceeds and Insurance Proceeds
on related Obligors. In addition, expenses incurred by the Servicer in
connection with a defaulted Contract which is subsequently reinstated, worked
out or cured, shall be reimbursable to the Servicer as a Nonrecoverable Advance
at the time of the cure.
Since, in connection with withdrawals pursuant to clause (b), the
Originator's entitlement thereto is limited to collections or other recoveries
on the related Contract, the Servicer shall keep and maintain separate
accounting, on a Contract by Contract basis, for the purpose of justifying any
withdrawal from the Collection Account pursuant to such clause.
Two Business Days before each Payment Date, no later than 1:00 p.m.
New York time, the Indenture Trustee shall notify the Servicer of the Interest
Deficiency Remedy Amount, if any, payable on the Notes for such Payment Date.
One Business Day before each Payment Date, no later than 1:00 p.m. New York
time, the Servicer shall remit to the Indenture Trustee for deposit into the
Note Payment Account (i) the Amount Available and (ii) from Amounts Held for
Future Distribution, the Interest Deficiency Remedy Amount for such Payment
Date.
Section 3.07 Enforcement.
(a) The Servicer shall, consistent with customary servicing procedures and
the terms of this Agreement, act with respect to the Contracts in such manner
as, in the Servicer's reasonable judgment, will maximize the receipt of
principal and interest on such Contracts and Liquidation Proceeds with respect
to Liquidated Contracts.
(b) The Servicer may ▇▇▇ to enforce, initiate a replevin action, or
collect upon Contracts, in its own name, if possible, or as agent for the Trust.
(c) The Servicer shall exercise any rights of recourse against third
persons that exist with respect to any Contract in accordance with the
Servicer's usual practice. In exercising recourse rights, the Servicer is
authorized on the Issuer's and the Indenture Trustee's behalf to reassign the
Contract or to resell the related Manufactured Home to the Person against whom
recourse exists at the price set forth in the document creating the recourse.
(d) The Servicer may grant to the Obligor on any Contract any rebate,
refund or adjustment out of the Collection Account that the Servicer in good
faith believes is required because of prepayment in full of the Contract. The
Servicer will not permit any rescission or cancellation of any Contract, except
as required by applicable law or regulation or upon the order of any court or
other governmental authority asserting jurisdiction in a suit, claim or
complaint involving the Contract.
(e) The Servicer may, consistent with its customary servicing procedures
and consistent with Section 3.02, grant to the Obligor on any Contract an
extension of payments due under such Contract; provided that, no such extension
may extend beyond the final scheduled payment date of the Contract with the
latest maturity, and no more than three extensions for any one Contract of
payments under a Contract may be granted in any twelve-month period.
Notwithstanding the foregoing, in connection with a Contract that is in default
or for which default is imminent, the Servicer may, consistent with the
servicing standard described in Section 3.01, waive, modify or vary any term of
that Contract (including modifications that change the
9
Contract Rate, forgive the payment of principal or interest or extend the final
maturity date of that Contract), accept payment from the related Obligor of an
amount less than the Principal Balance in final satisfaction of that Contract,
or consent to the postponement of strict compliance with any such term or
otherwise grant the indulgence to any Obligor if in the Servicer's determination
such waiver, modification, postponement or indulgence is not materially adverse
to the interests of the Noteholders (taking into account any estimated loss that
might result absent such action). However, the Servicer shall not extend the
maturity of any Contract past the date on which the final payment is due on the
latest maturing Contract as of the related Cut-off Date.
(f) The Servicer may enforce any due-on-sale clause in a Contract if such
enforcement is called for under its then current servicing policies for
obligations similar to the Contracts; provided that such enforcement is
permitted by applicable law and will not adversely affect any applicable
insurance policy. If an assumption of a Contract is permitted by the Servicer
upon conveyance of the related Manufactured Home, the Servicer shall use its
best efforts to obtain an assumption agreement in connection therewith and add
such assumption agreement to the related Contract File or Land and Home Contract
File.
Section 3.08 Indenture Trustee to Cooperate.
(a) Upon payment in full of any Contract, the Servicer shall notify the
Indenture Trustee, the Originator and the Seller on the next succeeding Payment
Date by certification of a Servicing Officer (which certification shall include
a statement to the effect that all amounts received in connection with such
payments which are required to be deposited in the Collection Account pursuant
to Section 3.05 have been so deposited). The Servicer is authorized to execute
an instrument in satisfaction of such Contract and to do such other acts and
execute such other documents as the Servicer deems necessary to discharge the
Obligor thereunder and eliminate the lien on the related real estate and
collateral. The Servicer shall determine when a Contract has been paid in full;
to the extent that insufficient payments are received on a Contract but are
otherwise incorrectly credited by the Servicer as prepaid or paid in full and
satisfied, the shortfall shall be paid by the Servicer out of its own funds;
provided that the Servicer may reimburse itself for such shortfall payment from
the Collection Account if the Servicer corrects the error and receives amounts
in respect of such shortfall payment from future collections with respect to
such Contract.
(b) From time to time as appropriate for servicing and foreclosure in
connection with any Land-and-Home Contract, the Indenture Trustee shall, upon
written request of a Servicing Officer and delivery to the Indenture Trustee of
a receipt signed by such Servicing Officer, at the expense of the Servicer,
cause the original Land-and-Home Contract and the related Land-and-Home Contract
File to be released to the Servicer and shall execute such documents as the
Servicer shall deem necessary to the prosecution of any such proceedings. The
Indenture Trustee shall stamp the face of each such Land-and-Home Contract to be
released to the Servicer with a notation that the Land-and-Home Contract has
been assigned to the Indenture Trustee. Upon request of a Servicing Officer, the
Indenture Trustee shall perform such other acts as reasonably requested by the
Servicer and otherwise cooperate with the Servicer in enforcement of the
Noteholders' and the Certificateholders' rights and remedies with respect to
Contracts. The Indenture Trustee shall not be liable for the performance of any
such acts at the request of the Servicer.
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(c) The Servicer's receipt of a Land-and-Home Contract and/or
Land-and-Home Contract File shall obligate the Servicer to return the original
Land-and-Home Contract and the related Land-and-Home Contract File to the
Indenture Trustee when its need by the Servicer has ceased unless the Asset
shall be liquidated or repurchased or replaced as described in Section 2.03.
Section 3.09 Costs and Expenses. All costs and expenses incurred by the
Servicer in carrying out its duties hereunder, including all fees and expenses
incurred in connection with the enforcement of Contracts (including enforcement
of defaulted Contracts and repossessions of Manufactured Homes securing such
Contracts) shall be paid by the Servicer and the Servicer shall not be entitled
to reimbursement hereunder, except to the extent specifically provided herein.
Furthermore, the Servicer shall be reimbursed out of the Liquidation Proceeds of
a Liquidated Contract for Liquidation Expenses incurred by it and if such
Liquidation Expenses are deemed Nonrecoverable Advances, the Servicer may
reimburse itself as provided in Section 3.06(f). The Servicer shall not incur
such Liquidation Expenses unless it determines in its good faith business
judgment that incurring such expenses will increase the Net Liquidation Proceeds
on the related Contract.
Section 3.10 Maintenance of Insurance.
(a) Except as otherwise provided in subsection (b) of this Section 3.10,
the Servicer shall cause to be maintained with respect to each Contract one or
more Hazard Insurance Policies which provide, at a minimum, the same coverage as
a standard form fire and extended coverage insurance policy that is customary
for manufactured housing, issued by a company authorized to issue such policies
in the state in which the related Manufactured Home is located and in an amount
which is not less than the maximum insurable value of such Manufactured Home or
the principal balance due from the Obligor on the related Contract, whichever is
less; provided, however, that the amount of coverage provided by each Hazard
Insurance Policy shall be sufficient to avoid the application of any
co-insurance clause contained therein; and provided, further, that such Hazard
Insurance Policies may provide for customary deductible amounts. With respect to
any Contract, the Servicer shall cause the Originator to obtain (i) a statement
from the Obligor's insurance agent or through other information sources that the
Manufactured Home was, at the time of origination of the Contract, not in a
federally designated special flood hazard area, or (ii) evidence that, at the
time of origination, flood insurance was in effect, which coverage was at least
equal to the minimum amount specified in the preceding sentence or such lesser
amount as may be available under the federal flood insurance program. Each
Hazard Insurance Policy caused to be maintained by the Servicer shall contain a
standard loss payee clause in favor of the Servicer and its successors and
assigns. If any Obligor is in default in the payment of premiums on its Hazard
Insurance Policy or Policies, the Servicer shall force place coverage and pay
such premiums out of its own funds and may separately add such premium to the
Obligor's obligation as provided by the Contract, but shall not add such premium
to the remaining principal balance of the Contract. If the Obligor does not
reimburse the Servicer for payment of such premiums and the related Contract is
liquidated after a default, the Servicer shall be reimbursed for its payment of
such premiums out of the related Liquidation Proceeds, and if such advance for
insurance premiums is deemed by the Servicer to be nonrecoverable in its
reasonable opinion, the Servicer may reimburse itself from the Collection
Account for such Nonrecoverable Advance.
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(b) The Servicer may, in lieu of causing individual Hazard Insurance
Policies to be maintained with respect to each Manufactured Home pursuant to
subsection (a) of this Section 3.10, and shall, to the extent that the related
Contract does not require the Obligor to maintain a Hazard Insurance Policy with
respect to the related Manufactured Home, maintain one or more blanket insurance
policies covering losses on the Obligor's interest in the Contracts resulting
from the absence or insufficiency of individual Hazard Insurance Policies. Any
such blanket policy shall be substantially in the form and in the amount carried
by the Servicer as of the date of this Agreement. The Servicer shall pay the
premium for such policy on the basis described therein and shall deposit into
the Collection Account from its own funds any deductible amount with respect to
claims under such blanket insurance policy relating to the Contracts. The
Servicer shall not, however, be required to deposit any deductible amount with
respect to claims under individual Hazard Insurance Policies maintained pursuant
to subsection (a) of this Section. If the insurer under such blanket insurance
policy shall cease to be acceptable to the Servicer, the Servicer shall exercise
its best reasonable efforts to obtain from another insurer a replacement policy
comparable to such policy.
(c) With respect to each Manufactured Home that has been repossessed in
connection with a defaulted Contract, the Servicer shall either (i) maintain one
or more Hazard Insurance Policies thereon or (ii) self-insure such Manufactured
Homes and deposit into the Collection Account from its own funds any losses
caused by damage to such Manufactured Home that would have been covered by a
Hazard Insurance Policy.
(d) The Servicer shall keep in force throughout the term of this Agreement
(i) a policy or policies of insurance covering errors and omissions for failure
to maintain insurance as required by this Agreement and (ii) a fidelity bond.
Such policy or policies and such fidelity bond shall be in such form and amount
as is generally customary among Persons which service a portfolio of
manufactured housing installment sales contracts and installment loan agreements
having an aggregate principal amount of $ 100,000,000 or more and which are
generally regarded as servicers acceptable to institutional investors.
Section 3.11 Repossession. Consistently with the standard of care
specified in Section 3.02, the Servicer shall commence procedures for the
repossession of any Manufactured Home or the foreclosure upon any Mortgaged
Property or take such other steps that in the Servicer's reasonable judgment
will maximize the receipt of principal and interest or Net Liquidation Proceeds
with respect to a delinquent Contract secured by such Manufactured Home or
Mortgaged Property (which may include retitling or filing a recorded assignment
of the Mortgage) subject to the requirements of the applicable state and federal
law. Notwithstanding the standard of care specified in Section 3.02, the
Servicer shall commence procedures for the repossession of any Manufactured Home
or the foreclosure upon any Mortgaged Property with respect to a Contract, and
to liquidate such Manufactured Home or Mortgaged Property, as soon as
commercially reasonably practicable after the time when such Contract becomes a
Charged off Contract (or sooner in the Servicer's reasonable judgment).
Notwithstanding the foregoing provisions of this Section 3.11 or any other
provision of this Agreement, with respect to any Contract as to which the
Servicer has received actual notice of, or has actual knowledge of, the presence
of any toxic or hazardous substance on the related Mortgaged Property, the
Servicer shall not, on behalf of the Indenture Trustee, either (i) obtain title
to such Mortgaged Property as a result of or in lieu of foreclosure or otherwise
or (ii) otherwise acquire possession of, or take
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any other action with respect to, such Mortgaged Property, if, as a result of
any such action, the Indenture Trustee, the Trust Estate or the Noteholders
would be considered to hold title to, to be a "mortgagee-in-possession" of, or
to be an "owner" or "operator" of such Mortgaged Property within the meaning of
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, or any comparable law, unless the Servicer
has also previously determined, based on its reasonable judgment and a report
prepared by a Person who regularly conducts environmental audits using customary
industry standards, that:
(1) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best economic
interest of the Indenture Trustee to take such actions as are
necessary to bring the Mortgaged Property into compliance therewith;
and
(2) there are no circumstances present at such Mortgaged
Property relating to the use, management or disposal of any
hazardous substances, hazardous materials, hazardous wastes, or
petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required
under any federal, state or local law or regulation, or that if any
such materials are present for which such action could be required,
that it would be in the best economic interest of the Indenture
Trustee to take such actions with respect to the affected Mortgaged
Property.
The cost of the environmental audit report contemplated by this
Section 3.11 shall be advanced by the Servicer as Servicing Advances, subject to
the Servicer's right to be reimbursed therefor from the Collection Account as
provided in Section 3.06(c) or 3.06(f), as appropriate, such right of
reimbursement being prior to the rights of Noteholders to receive any amount in
the Collection Account received in respect of the affected Contract or other
Contracts.
If the Servicer determines, as described above, that it is in the
best economic interest of the Indenture Trustee to take such actions as are
necessary to bring any such Mortgaged Property into compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials, hazardous
wastes or petroleum-based materials affecting any such Mortgaged Property, then
the Servicer shall take such action as it deems to be in the best economic
interest of the Indenture Trustee; provided, however, that the Servicer shall
not proceed with foreclosure or acceptance of a deed in lieu of foreclosure if
the estimated costs of the environmental clean up, as estimated in the
environmental audit report, together with the Servicing Advances made by the
Servicer and the estimated costs of foreclosure or acceptance of a deed in lieu
of foreclosure exceeds the estimated value of the Mortgaged Property. The cost
of any such compliance, containment, cleanup or remediation shall be advanced by
the Servicer, subject to the Servicer's right to be reimbursed therefor from the
Collection Account as provided in Section 3.06(c) or 3.06(f), as appropriate,
such right of reimbursement being prior to the rights of Noteholders to receive
any amount in the Collection Account received in respect of the affected
Contract or other Contracts.
In connection with such foreclosure or other conversion, the
Servicer shall follow such practices and procedures as it shall deem necessary
or advisable and as shall be consistent
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with Section 3.02. In the event that title to any Mortgaged Property is acquired
in foreclosure or by deed in lieu of foreclosure, the deed or certificate of
sale shall be issued to the Indenture Trustee, as Indenture Trustee, or, at its
election, to its nominee on behalf of the Indenture Trustee, as Indenture
Trustee.
Section 3.12 Subservicing Arrangements. The Servicer may arrange for the
subservicing of any Contract by a Subservicer pursuant to a subservicing
agreement; provided, however, that such subservicing arrangement and the terms
of the related subservicing agreement must provide for the servicing of such
Contracts in a manner consistent with the servicing arrangements contemplated
hereunder. Unless the context otherwise requires, references in this Agreement
to actions taken or to be taken by the Servicer in servicing the Contracts
include actions taken or to be taken by a subservicer on behalf of the Servicer.
Notwithstanding the provisions of any subservicing agreement, any of the
provisions of this Agreement relating to agreements or arrangements between the
Servicer and a subservicer or reference to actions taken through a subservicer
or otherwise, the Servicer shall remain obligated and liable to the Issuer, the
Indenture Trustee, the Originator, the Seller, the Noteholders and the
Certificateholders for the servicing and administration of the Contracts in
accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such subservicing agreements or
arrangements or by virtue of indemnification from the subservicer and to the
same extent and under the same terms and conditions as if the Servicer alone
were servicing and administering the Contracts. All actions of each subservicer
performed pursuant to the related subservicing agreement shall be performed as
an agent of the Servicer with the same force and effect as if performed directly
by the Servicer. The Servicer hereby appoints Origen Servicing, Inc., as its
subservicer. Origen Servicing, Inc. accepts the appointment as subservicer and
agrees to service the Contracts in accordance with the terms of this Agreement.
The Subservicer shall be entitled to retain from collections on the Contracts
pursuant to Section 3.06(f), a subservicing fee equal to the portion of the
Monthly Servicing Fee calculated at 1.00% per annum, and shall remit all
servicing compensation in excess of such amount to the Servicer. Origen
Servicing, Inc. is hereby deemed an acceptable Subservicer for purposes of this
Agreement.
All references to the Servicer in this Agreement shall be deemed to
include reference to the Subservicer and the parties to this Agreement shall
deal directly with the Subservicer rather than the Servicer. Notwithstanding the
foregoing, the parties hereto may and shall be entitled to rely on direction
provided by either the Servicer or the Subservicer.
For purposes of this Agreement, the Servicer shall be deemed to have
received any collections, recoveries or payments with respect to the Contracts
that are received by a Subservicer regardless of whether such payments are
remitted by the Subservicer to the Servicer.
Section 3.13 Retitling; Security Interests.
(a) If, at any time, a Service Transfer has occurred and the new Servicer
is unable to repossess or foreclose upon a Manufactured Home because the title
document for such Manufactured Home does not show such Servicer or the Indenture
Trustee as the holder of the first priority security interest in the
Manufactured Home, such Servicer shall take all necessary steps to apply for a
replacement title document showing it or the Indenture Trustee as the secured
14
party; provided that the new Servicer shall be reimbursed by the Trust for all
reasonable expenses in connection with its responsibilities under this Section
3.13.
(b) In order to facilitate the Servicer's actions, as described in
subsection (a) of this section, Origen Servicing, Inc. will provide the
Servicer, and the Servicer will provide the Indenture Trustee, with any
necessary power of attorney permitting it to retitle the Manufactured Home.
(c) If the Servicer is still unable to retitle the Manufactured Home,
Origen Servicing, Inc. will take all actions necessary to act with the Servicer
to initiate replevin action upon the Manufactured Home, including, as
appropriate, the filing of any UCC-1 or UCC-2 financing statements necessary to
perfect the security interest in any Manufactured Home that constitutes a
fixture under the laws of the jurisdiction in which it is located and all
actions necessary to perfect the security interest in any Manufactured Home that
is considered or classified as part of the real estate on which it is located
under the laws of the jurisdiction in which it is located.
Section 3.14 Payment of Taxes. If the Servicer becomes aware of the
nonpayment by an Obligor of a real or personal property tax or other tax or
charge which may result in a lien upon a Manufactured Home or Mortgaged Property
prior to, or equal to or coordinate with, the lien of the related Contract, the
Servicer, consistent with Section 3.02, shall advance, but only to the extent
that the Servicer deems, in its sole judgement, such advance recoverable, such
taxes or charges to avoid the attachment of any such lien. If the Servicer shall
have paid any such real or personal property tax or other tax or charge directly
on behalf of an Obligor, the Servicer may separately add such amount to the
Obligor's obligation as provided by the Contract, but, for the purposes of this
Agreement, may not add such amount to the remaining principal balance of the
Contract. If the Servicer shall have repossessed a Manufactured Home or
Mortgaged Property on behalf of the Noteholders, the Certificateholders and the
Indenture Trustee, the Servicer shall advance, but only to the extent that the
Servicer, in its sole judgment, deems such advance recoverable, the amount of
any such tax or charge arising during the time such Manufactured Home is in the
Servicer's possession or title to the Mortgaged Property is in the name of the
Servicer (or any Person acting on behalf of the Servicer), unless the Servicer
is contesting in good faith such tax or charge or the validity of the claimed
lien on such Manufactured Home or Mortgaged Property. If the Obligor does not
reimburse the Servicer for payment of such taxes or charges pursuant to this
Section 3.14 and the related Contract is liquidated after a default, the
Servicer shall be reimbursed for its payment of such taxes or charges out of the
related Liquidation Proceeds. If Liquidation Proceeds are insufficient to
reimburse the Servicer for any such premiums, the amount of such insufficiency
shall constitute, and be reimbursable to the Servicer as, a Nonrecoverable
Advance.
Section 3.15 Statement as to Compliance.
Not later than March 15th of each calendar year commencing in 2005,
the Servicer will deliver to the Indenture Trustee and the Depositor an
Officers' Certificate (upon which the Indenture Trustee can conclusively rely in
connection with its obligations under Section 7.05 of the Indenture)
substantially in the form of Exhibit D attached hereto stating, as to each
signatory thereof, that (i) a review of the activities of the Servicer and the
Subservicer during the preceding calendar year and of performance under this
Servicing Agreement has been
15
made under such officer's supervision and (ii) to the best of such officer's
knowledge, based on such review, each of the Servicer and the Subservicer has
fulfilled all of its obligations under this Servicing Agreement throughout such
year, or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof. Copies of any such statement shall be provided by the Indenture Trustee
to any Noteholder and to any Person identified to the Indenture Trustee as a
prospective transferee of a Note, upon request at the expense of the requesting
party, provided such statement is delivered by the Servicer to the Indenture
Trustee.
Section 3.16 Independent Public Accountants' Servicing Report.
Not later than March 15th of each calendar year commencing in 2005,
the Servicer, at its expense, shall cause a nationally recognized firm of
independent certified public accountants to furnish to the Servicer a report
stating that (i) it has obtained a letter of representation regarding certain
matters from the management of each of the Servicer and the Subservicer which
includes an assertion that each of the Servicer and the Subservicer has complied
with certain minimum servicing standards, identified in the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America, with respect to the servicing of manufactured housing
installment sales contracts and installment loan agreements during the most
recently completed calendar year and (ii) on the basis of an examination
conducted by such firm in accordance with standards established by the American
Institute of Certified Public Accountants, such representation is fairly stated
in all material respects, subject to such exceptions and other qualifications
that may be appropriate. In rendering its report such firm may rely, as to
matters relating to the direct servicing of manufactured housing installment
sales contracts and installment loan agreements by Sub-Servicers, upon
comparable reports of firms of independent certified public accountants rendered
on the basis of examinations conducted in accordance with the same standards
(rendered within one year of such report) with respect to those Sub-Servicers.
Immediately upon receipt of such report, the Servicer shall, at its own expense,
furnish a copy of such report to the Indenture Trustee and each Rating Agency.
Copies of such statement shall be provided by the Indenture Trustee to any
Noteholder upon request, provided that such statement is delivered by the
Servicer to the Indenture Trustee.
Section 3.17 Optional Redemption.
(a) The Servicer shall have the option to purchase all outstanding
Contracts on any Payment Date on or after the Payment Date on which the Pool
Principal Balance is less than or equal to 20% of the Cut-off Date Pool Balance.
The aggregate redemption price for the Contracts will be equal to the greater of
(a) the sum of: (i)100% of the Principal Balance of each Contract, other than
any Contract as to which the related Manufactured Home has been repossessed and
whose fair market value is included in clause (ii) hereof, and (ii) the fair
market value of any acquired property, as determined by the Servicer, and (b)
the aggregate fair market value of all assets of the Trust Estate (as determined
by the Servicer), in each case plus accrued and unpaid Interest Payment Amounts
on each Class of Notes at the applicable Note Rate (the "Redemption Price"). If
the determination of the fair market value of the Contracts shall be required to
be made by the Servicer as provided above, (A) such appraisal shall be obtained
at no
16
expense to the Indenture Trustee and (B) the Indenture Trustee may conclusively
rely on, and shall be protected in relying on, such appraisal.
(b) In order to exercise the foregoing option, the Servicer shall provide
written notice of its exercise of such option to the Indenture Trustee and the
Owner Trustee at least 30 days prior to its exercise. In addition, the Servicer
shall, not less than one Business Day prior to the proposed Payment Date on
which such redemption is to be made, deposit the Redemption Price specified in
(a) above with the Indenture Trustee.
ARTICLE IV
SERVICING CERTIFICATE
Section 4.01 Electronic Files.
(a) No later than 1:00 p.m. on the fourth Business Day prior to each
Payment Date, the Servicer shall deliver to the Indenture Trustee and the Backup
Servicer, with a copy to Citigroup Global Markets Inc. as underwriter of the
Notes, the Electronic File referred to in Section 3.04(c).
(b) With the delivery of each Electronic File pursuant to Section 4.01
(a), the Servicer shall be deemed to certify as to the accuracy of the
Electronic File and that no Servicer Event of Default or event that with notice
or lapse of time or both would become an Servicer Event of Default has occurred,
or if such event has occurred and is continuing, specifying the event and its
status.
Section 4.02 Exchange Act Reporting.
(a) The Indenture Trustee and the Servicer shall reasonably cooperate with
the Issuer and the Administrator in connection with the Trust's satisfying the
reporting requirements under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
(b) Reserved.
(c) The Indenture Trustee shall sign a certification (in the form attached
hereto as Exhibit C-2) for the benefit of the Administrator and its officers,
directors and Affiliates regarding certain aspects of the Certification
(provided, however, that the Indenture Trustee shall not undertake an analysis
of the accountant's report attached as an exhibit to the Form 10-K). The
Indenture Trustee's certification shall be delivered to the Administrator by no
later than March 20th of each year (or if such day is not a Business Day, the
immediately preceding Business Day).
(d) The Servicer shall sign a certification (in the form attached hereto
as Exhibit C-3) for the benefit of the Administrator and its officers, directors
and Affiliates regarding certain aspects of the Certification relating to
Electronic Files delivered by the Servicer pursuant to this Agreement. The
Servicer's certification shall be delivered to the Administrator by no later
than March 20th of each year (or if such day is not a Business Day, the
immediately preceding Business Day).
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In addition, the Servicer shall indemnify and hold harmless the
Administrator, the Depositor, the Indenture Trustee and their respective
officers, directors and Affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon a
breach of such Servicer's obligations under this Section 4.02(d) or such
Servicer's negligence, bad faith or willful misconduct in connection therewith.
The Administrator shall indemnify and hold harmless the Servicer and its
officers, directors and Affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon a
breach of the Administrator's obligations under this Section 4.02 or the
Administrator's negligence, bad faith or willful misconduct in connection
therewith. If the indemnification provided for herein is unavailable or
insufficient to hold harmless the Administrator or the Servicer, as applicable,
then the other party, in connection with a breach of its respective obligations
under this Section 4.02 with respect to the Administrator or Section 4.02(d)
with respect to the Servicer or its respective negligence, bad faith or willful
misconduct in connection therewith, agrees that it shall contribute to the
amount paid or payable by the other party as a result of the losses, claims,
damages or liabilities of the other party in such proportion as is appropriate
to reflect the relative fault and the relative benefit of the Administrator on
the one hand and the Servicer on the other.
(e) To the extent that, following the Closing Date, the Administrator
certifies to the Indenture Trustee and the Servicer that reports and
certifications differing from those required under this Section 4.02 comply with
the reporting requirements under the Exchange Act, each of the Servicer and the
Indenture Trustee hereby agrees that it will reasonably cooperate to amend the
provisions of this Section 4.02 (in accordance with Section 7.01) in order to
comply with such amended reporting requirements and such amendment of this
Section 4.02. Any such amendment may result in the reduction of the reports
filed by the Administrator under the Exchange Act. Notwithstanding the
foregoing, neither the Indenture Trustee nor the Servicer shall be obligated to
enter into any amendment pursuant to this Section that adversely affects its
rights, protections, obligations and immunities under this Servicing Agreement.
ARTICLE V
THE SERVICER AND THE BACKUP SERVICER
Section 5.01 Liability of the Servicer and the Backup Servicer. The
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by the Servicer or the
Subservicer herein. The Backup Servicer shall be liable in accordance herewith
only to the extent of the obligations specifically imposed upon and undertaken
herein by the Backup Servicer.
Section 5.02 Merger or Consolidation of or Assumption of the Obligations
of the Servicer and the Backup Servicer. Any Person into which the Servicer or
the Backup Servicer maybe merged or consolidated, or any Person resulting from
any merger, conversion or consolidation to which the Servicer or the Backup
Servicer shall be a party, or any Person succeeding to the business of the
Servicer or the Backup Servicer, shall be the successor of the Servicer or the
Backup Servicer, as the case may be, hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the
18
contrary notwithstanding; provided, however, that the successor Servicer shall
satisfy all the requirements of an Eligible Servicer.
Section 5.03 Limitation on Liability of the Servicer and Others. Neither
the Servicer, the Backup Servicer nor any of the directors or officers or
employees or agents of the Servicer or the Backup Servicer shall be under any
liability to the Trust, the Noteholders or the Certificateholders for any action
taken or for refraining from the taking of any action by the Servicer or the
Backup Servicer in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the Servicer
or the Backup Servicer or any such Person against any liability which would
otherwise be imposed by reason of its willful misfeasance, bad faith or
negligence in the performance of duties of the Servicer or the Backup Servicer
or by reason of its reckless disregard of its obligations and duties of the
Servicer or the Backup Servicer hereunder. The Servicer, the Backup Servicer and
any director or officer or employee or agent of the Servicer or the Backup
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Servicer, the Backup Servicer and any director or officer or employee or
agent of the Servicer or the Backup Servicer shall be indemnified by the Trust
and held harmless against any loss, liability or expense incurred in connection
with any legal action relating to this Agreement, the Notes or the Certificates,
other than any loss, liability or expense related to any specific Contract or
Contracts (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement) and any loss, liability or expense
incurred by reason of its willful misfeasance, bad faith or negligence in the
performance of duties hereunder or by reason of its reckless disregard of
obligations and duties hereunder; and such indemnity/hold harmless amounts as
provided for in this sentence shall be payable only pursuant to Section 8.02
(xi) of the Indenture after payments to the Noteholders for the related Payment
Date. The Servicer or the Backup Servicer may undertake any such action which it
may deem necessary or desirable in respect of this Agreement, and the rights and
duties of the parties hereto and the interests of the Noteholders or the
Certificateholders hereunder. In such event, the reasonable legal expenses and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Trust and the Servicer shall be entitled to be
reimbursed therefor only after payments to the Notes for the related Payment
Date. The Servicer's or the Backup Servicer's right to indemnity or
reimbursement pursuant to this Section shall survive any resignation or
termination of the Servicer or the Backup Servicer pursuant to Section 5.04 or
6.01 with respect to any losses, expenses, costs or liabilities arising prior to
such resignation or termination (or arising from events that occurred prior to
such resignation or termination). This paragraph shall apply to the Servicer or
the Backup Servicer solely in its capacity as Servicer or the Backup Servicer
hereunder and in no other capacities.
Notwithstanding any provision to the contrary contained in this
Agreement, the parties hereto and the Noteholders and the Certificateholders
acknowledge and agree that the Backup Servicer is not assuming and shall not be
responsible or liable for any liabilities, obligations, losses, damages or
expenses (including reasonable attorneys' fees) arising from or related to (i)
any act or omission of the initial Servicer or any prior servicer in its
capacity as Servicer on or prior to the effective Service Transfer Date, (ii)
any act or omission of the Indenture Trustee, the initial Servicer, the
Originator, the Seller, the Depositor or the Issuer or any other party to this
Agreement prior to, on or following the Servicer Transfer Date, or (iii) any
breach or default by the initial Servicer, the Originator, the Seller, the
Depositor or the
19
Indenture Trustee of their respective duties, obligations, covenants,
representations and warranties contained in this Agreement or in any related
document or agreement, whether such breach or default occurs or occurred prior
to, on or following the Service Transfer Date.
The parties hereto and the Noteholders and the Certificateholders
acknowledge that the Backup Servicer has agreed to be Backup Servicer for the
limited purpose of servicing the Contracts, and that neither the Backup Servicer
nor any of its Affiliates provides any guarantee or assurance whatsoever
regarding the payment of the Notes or the Certificates in full, the timing of
payment of the Notes or the Certificates or the enforceability or collectability
of the Contracts.
Section 5.04 Servicer and Backup Servicer Not to Resign. Subject to the
provisions of Section 5.02, neither the Servicer nor the Backup Servicer shall
resign from the obligations and duties hereby imposed on it except (i) upon
determination that the performance of its obligations or duties hereunder are no
longer permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it or its subsidiaries or
Affiliates, the other activities of the Servicer or the Backup Servicer so
causing such a conflict being of a type and nature carried on by the Servicer,
the Backup Servicer or its subsidiaries or Affiliates at the date of this
Agreement, or (ii) in the case of the Backup Servicer, upon a default in payment
of the fees and other amounts due and payable to the Backup Servicer as provided
in this Agreement, which default is not cured within 15 days following written
notice thereof to the Indenture Trustee or (iii) upon satisfaction of the
following conditions: (a) the Servicer or the Backup Servicer, as applicable,
has proposed a successor servicer to the Indenture Trustee in writing and such
proposed successor servicer is reasonably acceptable to the Indenture Trustee;
and (b) each Rating Agency shall have delivered a letter to the Indenture
Trustee prior to the appointment of the successor servicer stating that the
proposed appointment of such successor servicer as Servicer or Backup Servicer,
as applicable, hereunder will not result in the reduction or withdrawal of the
then current rating of any Class of the Notes; provided, however, that no such
resignation by the Servicer or the Backup Servicer under (i) or (iii) above
shall become effective until such successor Servicer or Backup Servicer or, in
the case of (i) above with respect to the Servicer, the Backup Servicer shall
have assumed the Servicer's responsibilities and obligations hereunder in
accordance with this Agreement or the Indenture Trustee shall have designated a
successor servicer in accordance with Section 6.02. Any such resignation shall
not relieve the Servicer or Backup Servicer of responsibility for any of the
obligations specified in Sections 6.01 and 6.02 or this Article V as specified
as obligations that survive the resignation or termination of the Servicer or
the Backup Servicer. Any such determination permitting the resignation of the
Servicer or Backup Servicer pursuant to clause (i) above shall be evidenced by
an Opinion of Counsel to such effect delivered to the Indenture Trustee.
Section 5.05 Delegation of Duties. Neither the Servicer nor the Backup
Servicer may sell or assign its rights and duties as Servicer or Backup
Servicer, as applicable, hereunder, except as expressly provided for herein,
provided that the Servicer may pledge or assign the right to receive all or any
portion of the Monthly Servicing Fee payable to it and/or reimbursements for
Outstanding Amounts Advanced and (without duplication) Nonrecoverable Advances.
Section 5.06 Rights of the Issuer in Respect of the Servicer. The Servicer
shall afford (and any Sub-Servicing Agreement shall provide that each
Sub-Servicer shall afford) the Issuer
20
and the Indenture Trustee, upon reasonable notice, during normal business hours,
access to all records maintained by the Servicer (and any such Sub-Servicer) in
respect of the Servicer's rights and obligations hereunder and access to
officers of the Servicer (and those of any such Sub-Servicer) responsible for
such obligations. The Issuer may, but is not obligated to, enforce the
obligations of the Servicer under this Servicing Agreement and may, but is not
obligated to, perform, or cause a designee to perform, any defaulted obligation
of the Servicer under this Servicing Agreement or exercise the rights of the
Servicer under this Servicing Agreement; provided that the Servicer shall not be
relieved of any of its obligations under this Servicing Agreement by virtue of
such performance by the Issuer or its designee. The Issuer shall not have any
responsibility or liability for any action or failure to act by the Servicer and
is not obligated to supervise the performance of the Servicer under this
Servicing Agreement or otherwise.
Section 5.07 Indemnification. The Servicer shall indemnify and hold
harmless the Trust, the Backup Servicer, the Owner Trustee and the Indenture
Trustee and their officers, directors, agents and employees from and against any
loss, liability, expense, damage or injury suffered or sustained by reason of
the Servicer's or the Subservicer's willful misfeasance, bad faith or negligence
in the performance of its activities in servicing or administering the Contracts
pursuant to this Agreement, including, but not limited to, any judgment, award,
settlement, reasonable fees of counsel of its selection and other costs or
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim related to the Servicer's or the Subservicer's
willful misfeasance, bad faith or negligence. Any such indemnification shall not
be payable from the assets of the Trust. The provisions of this indemnity shall
run directly to and be enforceable by an injured party subject to the
limitations hereof. The provisions of this Section 5.07 shall survive
termination of this Agreement.
ARTICLE VI
DEFAULT
Section 6.01 Servicer Events of Default.
"Servicer Event of Default," wherever used herein, means any one of
the following events:
(a) (1) The failure by the Servicer to deposit in the Note Payment Account
any deposit required to be made under the terms of this Agreement which
continues unremedied for a period of one Business Day after the date upon which
written notice of such failure shall have been given to the Servicer by the
Indenture Trustee or to the Servicer and the Indenture Trustee by any
Noteholders of at least 25% of the aggregate Note Balances of the Notes;
(b) Failure on the Servicer's part duly to observe or perform in any
material respect any covenant or agreement in this Agreement (other than a
covenant or agreement which is elsewhere in this Section specifically dealt
with) which continues unremedied for 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Indenture Trustee or to the Servicer and the Indenture
Trustee by Noteholders of at least 25% of the aggregate Note Balances of the
Notes;
21
(c) A court or other governmental authority having jurisdiction in the
premises shall have entered a decree or order for relief in respect of the
Servicer in an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
the Servicer, as the case may be, or for any substantial liquidation of its
affairs, and such order remains undischarged and unstayed for at least 60 days;
(d) The Servicer shall have commenced a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall have consented to the entry of an order for relief in an
involuntary case under any such law, or shall have consented to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee, custodian
or sequestrator (or other similar official) of the Servicer or for any
substantial part of its property, or shall have made any general assignment for
the benefit of its creditors, or shall have failed to, or admitted in writing
its inability to, pay its debts as they become due, or shall have taken any
corporate action in furtherance of the foregoing;
(e) So long as the Originator is an affiliate of the Servicer, any failure
of the Originator, to repurchase, or substitute an Eligible Substitute Contract
for, any Contract as required by Section 2.03 of the Servicing Agreement and
Section 3.7(b) of the Contract Purchase Agreement, respectively.
(f) The Average Sixty Day Delinquency Ratio exceeds 8.50%
(g) The Current Realized Loss Ratio exceeds 5.75; or
(h) The aggregate amount of Realized Losses incurred since the Cut-off
Date exceeds 16.00% of the Cut-off Date Pool Principal Balance.
In the event that any of the above events occurs with respect to the
Subservicer, the Servicer shall immediately terminate the Subservicer as
subservicer under this Agreement.
Section 6.02 Transfer.
(a) If a Servicer Event of Default has occurred and is continuing, either
the Indenture Trustee (after it has knowledge of such Servicer Event of Default)
or Noteholders of 51% or more of the aggregate Note Balances of the Notes, by
notice in writing to the Servicer (and to the Indenture Trustee if given by the
Noteholders) may terminate all (but not less than all) of the Servicer's
management, administrative, servicing and collection functions as provided
herein (such termination being herein called a "Service Transfer"). On receipt
of such notice (or, if later, on a date designated therein), or upon resignation
of the Servicer in accordance with Section 5.04, all authority and power of the
Servicer under this Agreement, whether with respect to the Contracts, the
Contract Files, the Land and Home Contract Files or otherwise (except with
respect to the Collection Account, the transfer of which shall be governed by
Section 6.06), shall pass to and be vested in the Backup Servicer pursuant to
and under this Section 6.02; and, without limitation, the Backup Servicer is
authorized and empowered to execute and deliver on behalf of the Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments and
to do any and all acts or things necessary or appropriate to effect the purposes
of such notice of termination. The Servicer agrees to cooperate with the Backup
Servicer in
22
effecting the termination of the responsibilities and rights of the Servicer as
provided hereunder, including, without limitation, the transfer to the Backup
Servicer for administration by it of all cash amounts which shall at the time be
held by the Servicer for deposit, or have been deposited by the Servicer, in the
Collection Account pursuant to Section 6.06, or for its own account in
connection with its services hereafter or thereafter received with respect to
the Contracts. The Servicer shall be entitled to receive any other amounts which
are payable to the Servicer under this Agreement, at the time of the termination
of its activities as Servicer. The Servicer shall transfer to the new servicer
(i) the Servicer's records relating to the Contracts in such electronic form as
the new servicer may reasonably request and (ii) any Contracts, Contract Files
and Land and Home Contract Files in the Servicer's possession. Any and all costs
and expenses incurred by the Backup Servicer in connection with the transfer of
servicing functions as provided herein, including, without limitation, the cost
of delivering the Contracts and related files to the Backup Servicer, shall be
paid by the initial Servicer within 10 days following invoice therefor, and to
the extent not paid in a timely manner, the Backup Servicer shall be reimbursed
as provided in clause (b) of this Section 6.02. The Backup Servicer shall not be
liable to and shall be held harmless by the Issuer, the Noteholders, the
Certificateholders, the Seller, the Originator, the Depositor, the Indenture
Trustee and the initial Servicer for any and all claims arising from or related
to (i) any missing or lost Contracts, Contract Files or related documents or
(ii) any inaccurate, incomplete or missing information reasonably necessary for
the servicing of the Contracts, which is not the direct result of the willful
misfeasance or negligence of the Backup Servicer.
(b) On or before the Closing Date the Servicer shall deposit into an
account (the "Reserve Account") maintained with the Indenture Trustee an amount
equal to $100,000. The Reserve Account shall not be a trust account. In the
event that, upon a Service Transfer, any and all costs and expenses incurred by
the Backup Servicer in connection with the transfer of servicing functions as
provided herein, including, without limitation, the cost of delivering the
Contracts and related files to the Backup Servicer, are not paid by the initial
Servicer within 10 days following invoice therefor, and to the extent not paid
in a timely manner, the Backup Servicer shall forward such invoice to the
Indenture Trustee and the Indenture Trustee shall reimburse the Backup Servicer
from amounts on deposit in the Reserve Account, to the extent of available
funds. If amounts on deposit in the Reserve Account are not sufficient therefor,
the Backup Servicer may reimburse itself for such costs and expenses from the
Collection Account. The Backup Servicer shall promptly notify the Indenture
Trustee upon reimbursement of all invoiced costs and expenses regardless of the
source of reimbursement. Upon the earlier to occur of (i) reimbursement to the
Backup Servicer of all invoiced costs and expenses incurred in connection with a
Service Transfer, or (ii) the final Payment Date with respect to the Notes, any
amounts on deposit in the Reserve Account shall be remitted to the initial
Servicer by the Indenture Trustee.
Section 6.03 Backup Servicer to Act, Appointment of Successor. The
Indenture Trustee shall send written notification of any Service Transfer or any
resignation of the Servicer in accordance with Section 5.04, within one Business
Day after the Indenture Trustee obtains actual knowledge thereof. The Backup
Servicer, upon two (2) Business Days' written notice from the Indenture Trustee
of such Service Transfer to the Backup Servicer, shall be the successor in all
respects to the servicing rights, duties and responsibilities of the Servicer
(in its capacity as servicer under this Agreement) except as provided herein
which arise after the
23
effective date of such Service Transfer and the Servicer (except as provided
herein) shall be relieved of such responsibilities, duties and liabilities
arising after such Service Transfer; provided, however, that (i) the Backup
Servicer shall not be liable for any acts or omissions of the initial or any
prior Servicer (or subservicer) accruing prior to such Service Transfer or for
any breach or default by the initial or any prior Servicer, the Originator, the
Seller, the Issuer or Indenture Trustee of any of their respective obligations
contained herein or in any related document or agreement, and (ii) the initial
or any prior Servicer shall remain liable for any acts or omissions of such
initial or prior Servicer occurring prior to such Service Transfer or for any
breach by the Servicer of any of its obligations contained herein or in any
related document or agreement. As compensation therefor, the Backup Servicer
shall be entitled to receive the Monthly Servicing Fee. Furthermore, the Backup
Servicer shall be entitled to all rights of the Servicer in connection with its
responsibilities under this Agreement, including reimbursement rights for
advances as provided herein and in the Indenture. If the Backup Servicer is
legally unable so to act, the Indenture Trustee may appoint, or petition a court
of competent jurisdiction to appoint, an Eligible Servicer as the successor to
the Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer hereunder. Pending
appointment of a successor to the Servicer hereunder, the Servicer shall act in
such capacity until a successor servicer assumes such responsibilities, duties
or liabilities. In connection with such appointment and assumption, the Backup
Servicer or the Indenture Trustee may make such arrangements for the
compensation of such successor out of payments on Contracts as it and such
successor shall agree; provided, however, that no such monthly compensation
shall, without the written consent of 100% of the Noteholders, exceed the
Monthly Servicing Fee. The Indenture Trustee and the Backup Servicer and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession as provided herein. The Backup
Servicer shall be entitled to rely upon the representations, warranties and
covenants made by the Originator, the Seller, the Depositor, the Issuer, the
Indenture Trustee, the Owner Trustee and the initial Servicer set forth in this
Agreement and any related document including the Basic Documents, and the Backup
Servicer shall be held harmless by the Issuer, the Seller, the Originator, the
Depositor, the Indenture Trustee and the initial Servicer, severally and not
jointly for any and all claims, liabilities, obligations, losses, damages,
payments costs or expenses (including reasonable attorneys' fees) of any kind
whatsoever incurred by the Backup Servicer arising from or related to any
breach, inaccuracy, default or nonperformance of such representations,
warranties or covenants of the Issuer, the Seller, the Originator, the Indenture
Trustee or the initial Servicer, as the case may be, as set forth herein or in
any related document or agreement, including the Basic Documents.
Section 6.04 Notification to Noteholders.
(a) Promptly following the occurrence of any Servicer Event of Default,
the Servicer shall give written notice thereof to the Indenture Trustee, the
Backup Servicer, the Rating Agencies and the Noteholders at their respective
addresses appearing on the Note Register.
(b) Within ten days following any termination or appointment of a
successor to the Servicer pursuant to this Article VI, the Indenture Trustee
shall give written notice thereof to the Rating Agencies and the Noteholders at
their respective addresses appearing on the Note Register.
24
(c) The Indenture Trustee shall give written notice to the Rating Agencies
prior to the date upon which any Eligible Servicer (other than the Indenture
Trustee) is to assume the responsibilities of Servicer pursuant to Section 6.03,
naming such successor Servicer.
Section 6.05 Effect of Transfer.
(a) After the Service Transfer, the Backup Servicer or new Servicer shall
notify Obligors to make payments directly to the new Servicer that are due under
the Contracts after the effective date of the Service Transfer.
(b) After the Service Transfer, the replaced Servicer shall have no
further obligations with respect to the management, administration, servicing or
collection of the Contracts except as provided herein and the Backup Servicer
shall have all of such obligations except as provided herein and the replaced
Servicer will transmit or cause to be transmitted directly to the Backup
Servicer for its own account, promptly on receipt and in the same form in which
received, any amounts (properly endorsed where required for the Backup Servicer
to collect them) received as payments upon or otherwise in connection with the
Contracts. In any event, the initial Servicer shall remain obligated to fulfill
its indemnity and hold harmless obligations following a Service Transfer or
termination of this Agreement.
(c) A Service Transfer shall not affect the rights and duties of the
parties hereunder (including but not limited to the indemnities of the Servicer
pursuant to Section 5.07) other than those relating to the management,
administration, servicing or collection of the Contracts following the effective
Service Transfer. Upon and following a Servicer Transfer and commencement of
servicing by the Backup Servicer, the initial Servicer shall have no further
rights to the Monthly Servicing Fee, other than any accrued and unpaid Monthly
Servicing Fee due to the initial Servicer as of such date and the Backup
Servicer shall have no further rights to the Monthly Backup Servicing Fee. The
parties hereto acknowledge and agree that prior to a Servicer Transfer to the
Backup Servicer, the Backup Servicer shall be paid the Monthly Backup Servicing
Fee as provided in the Indenture. In addition, the Backup Servicer shall be paid
an initial commitment fee of $25,000, which shall be paid directly by the
Servicer within five (5) Business Days from the Closing Date and shall
constitute an expense reimbursable to the Servicer pursuant to Section
8.02(a)(I)(xvi) of the Indenture.
Section 6.06 Transfer of Collection Account. Notwithstanding the
provisions of Section 6.02, if the Collection Account shall be maintained with
the Servicer and a Servicer Event of Default shall occur and be continuing, the
Servicer shall, after five days' written notice from the Indenture Trustee, or
in any event within ten days after the occurrence of the Servicer Event of
Default, establish an Eligible Account with an institution other than the
Servicer and promptly transfer all funds in the Collection Account to such new
account, which shall thereafter be deemed the Collection Account for the
purposes hereof. Upon a Service Transfer, the Collection Account shall be
transferred to an Eligible Account as directed by the successor Servicer.
25
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 Amendment. This Servicing Agreement maybe amended from time
to time by the parties hereto, provided that any amendment be accompanied by a
letter from the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to the Notes or the rating
then assigned to the Notes. None of the Basic Documents shall be amended or
modified so as to adversely affect the rights or impose additional obligations
upon the Servicer or the Backup Servicer without the express written consent of
both the Servicer and the Backup Servicer.
Section 7.02 GOVERNING LAW. THIS SERVICING AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (EXCEPT SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.03 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if when
delivered to:
(a) in the case of the Servicer: Origen Financial L.L.C.
Origen Servicing, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(b) in the case of the Backup Servicer: Vanderbilt Mortgage and
Finance, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
(c) in the case of Rating Agencies: ▇▇▇▇▇'▇ Investors Service, Inc.
4th Floor
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Residential
Mortgage Monitoring Unit
Standard & Poor's, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc.
By electronic mail to:
▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
26
With copy to:
Standard & Poor's
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - 41st Floor
New York, New York 10041
Attention: Asset Backed
Surveillance Group
(d) in the case of the Owner Trustee,
the Corporate Trust Office: Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Administration
27
(e) in the case of the Issuer, to Origen
Manufactured Housing Contract
Trust 2004-B: Origen Servicing, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(f) in the case of the Indenture Trustee: JPMorgan Chase Bank
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Institutional Trust
Services, Origen 2004-B
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party. Any notice required or permitted to be
mailed to a Noteholder shall be given by first class mail, postage prepaid, at
the address of such Noteholder as shown in the Note Register. Any notice so
mailed within the time prescribed in this Servicing Agreement shall be
conclusively presumed to have been duly given, whether or not the Noteholder
receives such notice. Any notice or other document required to be delivered or
mailed by the Indenture Trustee to any Rating Agency shall be given on a
reasonable efforts basis and only as a matter of courtesy and accommodation and
the Indenture Trustee shall have no liability for failure to deliver such notice
or document to any Rating Agency.
Section 7.04. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Servicing Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Servicing Agreement and shall in no way
affect the validity or enforceability of the other provisions of this Servicing
Agreement or of the Notes or the rights of the Noteholders thereof.
Section 7.05. Third-Party Beneficiaries. This Servicing Agreement will
inure to the benefit of and be binding upon the parties hereto, the Noteholders,
the Owner Trustee, the Indenture Trustee and their respective successors and
permitted assigns. Except as otherwise provided in this Servicing Agreement, no
other Person shall have any right or obligation hereunder. The Indenture Trustee
shall have the right to exercise all rights of the Issuer under this Servicing
Agreement.
Section 7.06. Counterparts. This instrument maybe executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
Section 7.07. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
28
Section 7.08. Termination. The respective obligations and responsibilities
of the Servicer (and Backup Servicer) and the Issuer created hereby shall
terminate (except as provided herein) upon the satisfaction and discharge of the
Indenture pursuant to Section 4.10 thereof.
Section 7.09. No Petition. The Servicer, by entering into this Servicing
Agreement, hereby covenants and agrees that it will not at any time institute
against the Issuer, or join in any institution against the Issuer, any
bankruptcy proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations of the Issuer. This section shall
survive the termination of this Servicing Agreement by one year.
Section 7.10. No Recourse. The Servicer acknowledges that no recourse
maybe had against the Issuer, except as may be expressly set forth in this
Servicing Agreement.
Section 7.11. Indenture Trustee Rights. The Indenture Trustee shall be
entitled to the same rights, protections, indemnities and immunities afforded to
it under the Indenture as if specifically set forth herein.
ARTICLE VIII
DUTIES OF THE SUBSERVICER AS ADMINISTRATOR
Section 8.01. Administrative Duties.
(a) Duties with Respect to the Indenture. The Subservicer as administrator
(the "Administrator") shall perform all its duties and the duties of the Issuer
under the Indenture. In addition, the Administrator shall consult with the Owner
Trustee as the Administrator deems appropriate regarding the duties of the
Issuer under the Indenture. The Administrator shall monitor the performance of
the Issuer and shall advise the Owner Trustee when action is necessary to comply
with the Issuer's duties under the Indenture. The Administrator shall prepare
for execution by the Issuer or shall cause the preparation by other appropriate
Persons of all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Issuer to prepare, file or deliver
pursuant to the Indenture. In furtherance of the foregoing, the Administrator
shall take all necessary action that is the duty of the Issuer to take pursuant
to the Indenture.
(b) Duties with Respect to the Issuer.
(i) In addition to the duties of the Administrator set forth in this
Servicing Agreement or any of the Basic Documents, the Administrator shall
perform such calculations and shall prepare for execution by the Issuer or
the Owner Trustee or shall cause the preparation by other appropriate
Persons of all such documents, reports, filings, instruments, certificates
and opinions as it shall be the duty of the Issuer or the Owner Trustee to
prepare, file or deliver pursuant to this Servicing Agreement or any of
the Basic Documents or under state and federal tax and securities laws
(including, but not limited to, UCC filings in applicable jurisdictions
and annual compliance certificates, if any), and shall take all
appropriate action that it is the duty of the Issuer to take pursuant to
this Servicing Agreement or any of the Basic Documents. In accordance with
the directions of the Issuer or the Owner Trustee, the Administrator shall
administer, perform
29
or supervise the performance of such other activities in connection with
the Notes (including the Basic Documents) as are not covered by any of the
foregoing provisions and as are expressly requested by the Issuer, the
Indenture Trustee or the Owner Trustee.
(ii) In carrying out the foregoing duties or any of its other
obligations under this Servicing Agreement, the Administrator may enter
into transactions with or otherwise deal with any of its Affiliates;
provided, however, that the terms of any such transactions or dealings
shall be in accordance with any directions received from the Issuer and
shall be, in the Administrator's opinion, no less favorable to the Issuer
in any material respect than with terms made available to unrelated third
parties.
(c) Tax Matters. The Administrator shall prepare and file on behalf of the
Owner Trustee or the Issuer, all tax returns (if any) and information reports,
tax elections and such annual or other reports of the Issuer as are necessary
for preparation of tax returns and information reports as provided in Section
5.03 of the Trust Agreement, other than each Form 1 099 which shall be prepared
by the Indenture Trustee.
(d) Non-Ministerial Matters. With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the Administrator
shall not take any action pursuant to this Article V in unless within a
reasonable time before the taking of such action, the Administrator shall have
notified the Owner Trustee and the Indenture Trustee of the proposed action and
the Owner Trustee and, with respect to items (A), (B), (C) and (D) below, the
Indenture Trustee shall not have withheld consent or provided an alternative
direction. For the purpose of the preceding sentence, "non-ministerial matters"
shall include:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against the
Issuer (other than in connection with the collection of the Contracts);
(C) the amendment, change or modification of this Servicing
Agreement or any of the Basic Documents to which the Indenture Trustee or
the Owner Trustee, as applicable, is a party;
(D) the appointment of successor Certificate Paying Agents and
successor Indenture Trustees pursuant to the Indenture or the appointment
of successor Servicers or the consent to the assignment by the Certificate
Registrar, Paying Agent or Indenture Trustee of its obligations under the
Indenture; and
(E) the removal of the Indenture Trustee.
(e) Subservicer shall act as Administrator. By execution of this
Agreement, the Subservicer agrees to be bound as Administrator and shall perform
the obligations of the Administrator as described herein. Notwithstanding any
provision to the contrary contained herein or otherwise, the Backup Servicer
shall not assume any obligations or responsibilities as the "Administrator" as
contemplated by this Agreement even in the event the Backup Servicer succeeds to
the servicing rights and responsibilities as provided in Section 6.02 and/or
6.03
30
hereof. Upon the occurrence of a Service Transfer, the Servicer shall continue
to act as "Administrator" hereunder unless a successor Administrator is
appointed by 100% of the holders of the Owner Trust Certificates and notice of
such appointment is promptly given to the Backup Servicer and the Indenture
Trustee.
Section 8.02. Records. The Administrator shall maintain appropriate books
of account and records relating to services performed under this Servicing
Agreement, which books of account and records shall be accessible for inspection
by the Issuer, the Indenture Trustee and the Owner Trustee at any time during
normal business hours.
Section 8.03. Additional Information to be Furnished. The Administrator
shall furnish to the Issuer, the Indenture Trustee and the Owner Trustee from
time to time such additional information regarding the Contracts and the Notes
as the Issuer, the Indenture Trustee or the Owner Trustee shall reasonably
request.
Section 8.04. No Recourse to Owner Trustee. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and delivered
by Wilmington Trust Company individually or personally, but solely as Owner
Trustee of Origen Manufactured Housing Contract Trust 2004-B, in the exercise of
the powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as personal representations, undertakings and
agreements by Wilmington Trust Company but is made and intended for the purpose
for binding only the Issuer, (c) nothing herein contained shall be construed as
creating any liability of Wilmington Trust Company, individually or personally,
to perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by any
Person claiming by, through or under the parties hereto and (d) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Agreement or any other related documents.
Section 8.05. Exchange Act Reporting.
(a) The Administrator shall prepare or cause to be prepared on behalf of
the Trust any Forms 8-K and 10-K customary for similar securities as required by
the Exchange Act and the Rules and Regulations of the Securities and Exchange
Commission thereunder, and the Administrator shall sign (or shall cause another
entity acceptable to the Securities and Exchange Commission to sign) and the
Administrator shall file or cause to be filed (via the Securities and Exchange
Commission's Electronic Data Gathering and Retrieval System) such forms on
behalf of the Depositor or the Issuer (or such other entity). The Depositor and
the Issuer hereby grant to the Administrator a limited power of attorney to
execute any Form 8-K and file each such document on behalf of the Depositor and
the Issuer. Such power of attorney shall continue until the earlier of (i)
receipt by the Servicer from the Depositor and the Issuer of written termination
of such power of attorney and (ii) the termination of the Trust. Notwithstanding
anything herein to the contrary, the Administrator, and not the Servicer, shall
be responsible for executing each Form 10-K filed on behalf of the Trust.
31
(b) Each Form 8-K shall be filed by the Administrator or its delegatee
within 15 days after each Payment Date, with a copy of the statement to the
Noteholders for such Payment Date as an exhibit thereto. Prior to March 30th of
each year (or such earlier date as may be required by the Exchange Act and the
Rules and Regulations of the Securities and Exchange Commission), beginning in
2005, the Administrator shall file (or cause to be filed) a Form 10-K, in
substance as required by applicable law or applicable Securities and Exchange
Commission staffs interpretations. Such Form 10-K shall include as exhibits the
Servicer's annual statement of compliance described under Section 3.15 and the
accountant's report described under Section 3.16, in each case to the extent
they have been timely delivered to the Administrator. If they are not so timely
delivered, the Administrator shall file (or cause to be filed) an amended Form
10-K including such documents as exhibits reasonably promptly after they are
delivered to the Administrator. The Administrator shall have no liability with
respect to any failure to properly prepare or file such periodic reports
resulting from or relating to the Administrator's inability or failure to obtain
any information not resulting from its own negligence or willful misconduct. The
Form 10-K shall also include a certification in the form attached hereto as
Exhibit C-l (the "Certification"), which shall be signed by the senior officer
of the Administrator.
(c) Upon any filing with the Securities and Exchange Commission, the
Administrator shall promptly deliver to the Issuer a copy of any executed
report, statement or information.
(d) Prior to January 30 of the first year in which the Administrator is
able to do so under applicable law, the Administrator shall file (or cause to be
filed) a Form 15 Suspension Notification with respect to the Trust.
Section 8.06. Indemnification.
The Administrator shall indemnify and hold harmless the Trust, the
Backup Servicer, the Owner Trustee and the Indenture Trustee and their officers,
directors, agents and employees from and against any loss, liability, expense,
damage or injury suffered or sustained by reason of the Administrator's willful
misfeasance, bad faith or negligence in the performance of its activities
pursuant to this Agreement, including, but not limited to, any judgment, award,
settlement, reasonable fees of counsel of its selection and other costs or
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim related to the Administrator's willful misfeasance,
bad faith or negligence. Any such indemnification shall not be payable from the
assets of the Trust. The provisions of this indemnity shall run directly to and
be enforceable by an injured party subject to the limitations hereof. The
provisions of this Section 8.06 shall survive termination of this Agreement.
32
IN WITNESS WHEREOF, the Servicer, the Subservicer, the Issuer, the
Backup Servicer and the Indenture Trustee have caused this Servicing Agreement
to be duly executed by their respective officers or representatives all as of
the day and year first above written.
ORIGEN FINANCIAL L.L.C., JPMORGAN CHASE BANK, as Indenture
as Servicer Trustee
By: /s/ ▇. ▇▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------- -------------------------------
Name: ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: CEO Title: Attorney-In-Fact
ORIGEN SERVICING, INC., VANDERBILT MORTGAGE AND
as Subservicer and Administrator FINANCE, INC., as Backup Servicer
By: /s/ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------- -------------------------------
Name: ▇. ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: CEO Title: President
ORIGEN MANUFACTURED HOUSING
CONTRACT TRUST 2004-B, as Issuer
By: Wilmington Trust Company, not
in its individual capacity, but
solely as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Financial Services Officer
[Signature Page to Origen 2004-B Servicing Agreement]
EXHIBIT A
LIST OF CONTRACTS
[The List of Contracts is on file with the Servicer
and is available upon request]
EXHIBIT B
FORM OF CERTIFICATE REGARDING REPURCHASED CONTRACTS
ORIGEN FINANCIAL L.L.C.
CERTIFICATE REGARDING REPURCHASED CONTRACTS
The undersigned certifies that he is a [title] of Origen Financial
L.L.C., a Delaware limited liability company (the "Company"), and that as such
he is duly authorized to execute and deliver this certificate on behalf of the
Company pursuant to Section 2.03 of the Servicing Agreement, dated as of
September 1, 2004 (the "Agreement"), among the Company, Origen Servicing, Inc.,
Origen Manufactured Housing Trust 2004-B, Vanderbilt Mortgage and Finance, Inc.,
as backup servicer (the "Backup Servicer")] and JPMorgan Chase Bank, as
indenture trustee (the "Indenture Trustee") (all capitalized terms used herein
without definition having the respective meanings specified in the Indenture
(the "Indenture"), dated as of September 1, 2004, between Origen Manufactured
Housing Contract Trust 2004-B (the "Issuer") and the Indenture Trustee), and
further certifies that:
1. The Contracts on the attached schedule are to be repurchased by
the Company on the date hereof pursuant to Section 2.03 of the Agreement.
2. Upon deposit of the Repurchase Price for such Contracts, such
Contracts may, pursuant to Section 2.03 of the Agreement, be assigned by the
Indenture Trustee to the Company.
IN WITNESS WHEREOF, I have affixed hereunto my signature this _____
day of_____________, ______.
ORIGEN FINANCIAL L.L.C.
By:_____________________________
[Name]
[Title]
EXHIBIT C-1
FORM OF CERTIFICATION TO BE PROVIDED BY
THE ADMINISTRATOR WITH FORM 10-K
Re: Origen Manufactured Housing Contract Trust 2004-B (the "Trust"
or the "Issuer"), Origen Manufactured Housing Contract Trust
Collateralized Notes, Series 2004-B
I, [identify the certifying individual], the senior officer of
Origen Servicing, Inc., the Administrator for Origen Manufactured Housing
Contract Trust 2004-B (the "Registrant"), certify that:
1. I have reviewed this annual report on Form 10-K, and all reports
on Form 8-K containing distribution and servicing reports filed in respect of
periods included in the year covered by this annual report, of Registrant;
2. Based on my knowledge, the information in these reports, taken as
a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;
3. Based on my knowledge, the distribution information required to
be provided by the Indenture Trustee under the Indenture, and the servicing
information required to be provided to the Indenture Trustee by the Servicer
under the Servicing Agreement for inclusion in these reports, is included in
these reports;
4. Based on my knowledge and upon the annual compliance statements
included in the report and required to be delivered to the Indenture Trustee in
accordance with the terms of the Servicing Agreement, and except as disclosed in
the reports, the Servicer has fulfilled its obligations under the Servicing
Agreement; and
5. The reports disclose all significant deficiencies relating to the
servicer's compliance with the minimum servicing standards based upon the report
provided by an independent public accountant, after conducting a review in
compliance with the Uniform Single Attestation Program for Mortgage Bankers or
similar procedure, as set forth in the servicing, or similar, agreement, that is
included in these reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the Indenture Trustee and the Servicer.
C-1-1
Capitalized terms used but not defined herein have the meanings
ascribed to them in Appendix A to the Indenture, dated September 1, 2004 (the
"Indenture"), between Origen Manufactured Housing Contract Trust 2004-B as
issuer, and JPMorgan Chase Bank, as indenture trustee.
[ADMINISTRATOR]
By:____________________________
Name:
Title:
Date:
C-1-2
EXHIBIT C-2
FORM OF CERTIFICATION TO BE PROVIDED
TO THE Administrator BY THE INDENTURE TRUSTEE
Re: Origen Manufactured Housing Contract Trust 2004-B (the "Trust"
or the "Issuer"), Origen Manufactured Housing Contract Trust
Collateralized Notes, Series 2004-B
I, [identify the certifying individual], a [title] of JPMorgan Chase
Bank, as Indenture Trustee, hereby certify to Origen Servicing, Inc. (the
"Administrator"), and its officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification, that:
To date, the information and statements required to be provided by
the Indenture Trustee pursuant to Section 7.05 of the Indenture have been
provided and, taken as a whole and based on the information provided to the
Indenture Trustee by the Servicer (as to which provided information we make no
representation), do not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
date of each of such statements.
Capitalized terms used but not defined herein have the meanings
ascribed to them in Appendix A to the Indenture, dated September 1, 2004 (the
"Indenture"), between Origen Manufactured Housing Contract Trust 2004-B, as
issuer, and JPMorgan Chase Bank, as indenture trustee.
JPMORGAN CHASE BANK, as Indenture Trustee
By:____________________________
Name:
Title:
Date:
C-1-1
EXHIBIT C-3
FORM OF CERTIFICATION TO BE PROVIDED
TO THE ADMINISTRATOR BY THE SERVICER
Re: Origen Manufactured Housing Contract Trust 2004-B (the "Trust"
or the "Issuer"), Origen Manufactured Housing Contract Trust
Collateralized Notes, Series 2004-B
I, [identify the certifying individual], a [title] of Origen
Servicing, Inc., as Servicer, hereby certify to Origen Servicing, Inc. (the
"Administrator"), and its officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification, that:
1. I have reviewed this annual report on Form 10-K, and all reports
on Form 8 -K containing distribution or servicing reports filed in respect of
periods included in the year covered by this annual report, of the above
referenced trust (the "Registrant");
2. Based on my knowledge, the information provided by the Servicer
to the Indenture Trustee for inclusion in these reports, taken as a whole, does
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading as of the last day of the period
covered by this annual report;
3. Based on my knowledge, the servicing information required to be
provided to the Indenture Trustee by the servicer under the servicing, or
similar, agreement for inclusion in these reports is included in these reports;
4. I am responsible for reviewing the activities performed by the
servicer under the servicing, or similar, agreement and based upon my knowledge
and the annual compliance review required under that agreement, and except as
disclosed in the reports, the servicer has fulfilled its obligations under that
agreement; and
5. The reports disclose all significant deficiencies relating to the
servicer's compliance with the minimum servicing standards based upon the report
provided by an independent public accountant, after conducting a review in
compliance with the Uniform Single Attestation Program for Mortgage Bankers as
set forth in the servicing, or similar, agreement, that is included in these
reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [the Indenture
Trustee and Sub-Servicers]
Date:
____________________________
[Signature]
[Title]
[Company]
C-1-1
EXHIBIT D
OFFICER'S CERTIFICATE
REGARDING ANNUAL STATEMENT OF COMPLIANCE
Origen Manufactured Housing Contract Trust Collateralized Notes, Series 2004-B
I, _________________, hereby certify that I am a duly appointed
____________________________ of Origen Financial L.L.C. (the "Servicer"), and
further certify as follows:
1. This certification is being made pursuant to the terms of the
Servicing Agreement, dated as of September 1, 2004 (the "Servicing Agreement"),
among Origen Manufactured Housing Contract Trust 2004-B, as issuer, the
Servicer, as servicer, Origen Servicing, Inc., as subservicer (the
"Subservicer"), Vanderbilt Mortgage and Finance, Inc., as back-up servicer, and
JPMorgan Chase Bank, as indenture trustee.
2. I have reviewed the activities of the Servicer and the
Subservicer during the preceding year and the Servicer's performance (and the
Subservicer's performance on the Servicer's behalf) under the Servicing
Agreement and to the best of my knowledge, based on such review, each of the
Servicer and Subservicer has fulfilled all of its obligations under the
Servicing Agreement throughout the year.
Capitalized terms not otherwise defined herein have the meanings set
forth in the Servicing Agreement.
Dated:
D-1
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of ______________________.
By:____________________________
Name:
Title:
I, ______________________, a (an) _________________ of the
[Servicer], hereby certify that ____________________________ is a duly elected,
qualified, and acting ___________________________________ of the [Servicer] and
that the signature appearing above is his/her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of ______________________.
By:____________________________
Name:
Title:
D-2