EXHIBIT 99.2
ORIGEN SERVICING, INC.,
as Servicer and Administrator,
[_____________________________],
as Backup Servicer
ORIGEN MANUFACTURED HOUSING CONTRACT TRUST 200[_]-[_],
as Issuer
and
[_____________________________],
as Indenture Trustee,
SERVICING AGREEMENT
Dated as of __________, 200[_]
Manufactured Housing Installment Sales Contracts
and Installment Loan Agreements
Origen Manufactured Housing Contract Trust 200[_]-[_]
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions.............................................. 1
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................................................. 2
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.................................................. 5
Section 3.04. Inspection: Electronic File.............................. 6
Section 3.05. Collection Account....................................... 6
Section 3.06. Permitted Withdrawals.................................... 7
Section 3.07. Enforcement.............................................. 8
Section 3.08. Indenture Trustee to Cooperate........................... 9
Section 3.09. Costs and Expenses....................................... 10
Section 3.10. Maintenance of Insurance................................. 11
Section 3.11. Repossession............................................. 12
Section 3.12. Subservicing Arrangements................................ 13
Section 3.13. Retitling; Security Interests............................ 14
Section 3.14. Payment of Taxes......................................... 14
Section 3.15. Annual Statement of Compliance........................... 15
Section 3.16. Annual Assessment and Attestation........................ 15
Section 3.17. Optional Redemption of Contracts......................... 16
ARTICLE IV
SERVICING CERTIFICATE
Section 4.01. Electronic Files......................................... 16
Section 4.02. Exchange Act Reporting................................... 17
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....... 18
Section 5.04. Servicer and Backup Servicer Not to Resign............... 19
Section 5.05. Delegation of Duties..................................... 20
Section 5.06. Rights of the Issuer in Respect of the Servicer.......... 20
Section 5.07. Indemnification.......................................... 20
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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. Backup
Servicer to Act, Appointment of Successor................ 23
Section 6.04. Notification to Noteholders.............................. 24
Section 6.05. Effect of Transfer....................................... 24
Section 6.06. Transfer of Collection Account........................... 25
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment................................................ 25
Section 7.02. GOVERNING LAW............................................ 25
Section 7.03. Notices.................................................. 25
Section 7.04. Severability of Provisions............................... 26
Section 7.05. Third-Party Beneficiaries................................ 26
Section 7.06. Counterparts............................................. 26
Section 7.07. Effect of Headings and Table of Contents................. 26
Section 7.08. Termination.............................................. 26
Section 7.09. No Petition.............................................. 26
Section 7.10. No Recourse.............................................. 27
Section 7.11. Indenture Trustee Rights................................. 27
ARTICLE VIII
DUTIES OF THE SERVICER AS ADMINISTRATOR
Section 8.01. Administrative Duties.................................... 27
Section 8.02. Records.................................................. 28
Section 8.03. Additional Information to be Furnished................... 29
Section 8.04. No Recourse to Owner Trustee............................. 29
Section 8.05. Commission Reporting: Form 10-D.......................... 29
Section 8.06. Commission Reporting: Form 8-K........................... 30
Section 8.07. Commission Reporting: Form 10-K.......................... 31
Section 8.08. Commission Reporting: DeListing, Amendments and Late
Filing................................................... 32
EXHIBIT A LIST OF CONTRACTS.............................................. A-l
EXHIBIT B FORM OF CERTIFICATE REGARDING REPURCHASED CONTRACTS ORIGEN
FINANCIAL L.L.C. CERTIFICATE REGARDING REPURCHASED CONTRACTS............. B-1
EXHIBIT C-l FORM OF CERTIFICATION TO BE PROVIDED BY THE ADMINISTRATOR
WITH FORM 10-K........................................................... C-l-1
EXHIBIT C-2 FORM OF CERTIFICATION TO BE PROVIDED TO THE ADMINISTRATOR BY
THE INDENTURE TRUSTEE.................................................... C-2-1
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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-l
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This Servicing Agreement, dated as of __________ , 200[_], among
Origen Servicing, Inc., as Servicer (the "Servicer"), [____________________], as
Backup Servicer (the "Backup Servicer"), Origen Manufactured Housing Contract
Trust 200[_]-[_], as Issuer (the "Issuer") and [____________________] as
Indenture Trustee (the "Indenture Trustee").
WITNESSETH THAT:
WHEREAS, pursuant to the terms of the Manufactured Housing Contract
Sale Agreement, Citigroup Mortgage Loan Trust Inc. (the "Depositor") will
acquire the Contracts;
WHEREAS, the Depositor will create Origen Manufactured Housing
Contract Trust 200[_]-[_], a Delaware statutory trust, and will transfer the
Contracts and all of its rights under the Manufactured Housing Contract Sale
Agreement to the Issuer;
WHEREAS, pursuant to the terms of an Amended and Restated Trust
Agreement dated as of __________ , 200[_] (the "Trust Agreement") among the
Depositor, as depositor, [____________________], 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 200[_]-[_] (the "Certificates");
WHEREAS, pursuant to the terms of an Indenture dated as of
[____________________] (the "Indenture") between the Issuer and
[____________________] (the "Indenture Trustee"), the Issuer will pledge the
Contracts and issue and transfer to or at the direction of the Purchaser the
Origen Manufactured Housing Contract Trust Notes, Series 200[ ]-[ ], Class ▇-▇,
▇▇▇▇▇ ▇-▇, Class A-3, Class A-4, Class M-l and Class M-2 Notes (collectively,
the "Notes"); and
WHEREAS, pursuant to the terms of this Servicing Agreement, the
Servicer will service the Contracts set forth on the List of Contracts attached
hereto as Exhibit A directly or through one or more Sub-Servicers;
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 Mortgage Note and Mortgage.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01. Covenants, Representations and Warranties Regarding the
Servicer. By its execution and delivery of this Agreement, Origen Servicing,
Inc., as initial Servicer, 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.
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(A) Formation and Good Standing. The Servicer is a limited liability
company 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. The Servicer is
duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which the character of the business
transacted by it or properties owned or leased by it requires such
qualification and in which the failure so to qualify would have a material
adverse effect on the business, properties, assets, or condition (financial
or other) of the Servicer.
(B) Authorization: Binding Obligations. The Servicer has the power and
authority to make, execute, deliver and perform this Agreement and all of
the transactions contemplated under this Agreement and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Agreement. When executed and delivered, this Agreement
will constitute the legal, valid and binding obligation of the Servicer
enforceable in accordance with its terms, except as enforcement of such
terms 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. The Servicer is not required to obtain the
consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement, except for such
consents, licenses, approvals and authorizations as have been obtained;
provided, that Origen Financial L.L.C. will act as Sub-Servicer for
Contracts secured by Manufactured Homes located in jurisdictions where the
Servicer does not hold the requisite licenses.
(D) No Violations. The execution, delivery and performance by the
Servicer of this Agreement and the fulfillment of its terms will not
violate any provision of any existing law or regulation or any order or
decree of any court or the related Certificate of Incorporation or Bylaws
of the Servicer, or constitute a material breach of any mortgage,
indenture, contract or other agreement to which the Servicer is a party or
by which the Servicer may be bound; provided, that Origen Financial L.L.C.
will act as Sub-Servicer for Contracts secured by Manufactured Homes
located in jurisdictions where the Servicer does not hold the requisite
licenses.
(E) Litigation. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending, or to
the knowledge of the Servicer threatened, against the Servicer or any of
its properties or with respect to this Agreement or the Certificates which,
if adversely determined, would in the opinion of the Servicer have a
material adverse effect on the transactions contemplated by this Agreement.
(F) Chief Executive Office. The chief executive office of the Servicer
is at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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(G) No Default. The Servicer is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or governmental agency, which default would
materially and adversely affect its condition (financial or other) or
operations or its properties or the consequences of which would materially
and adversely affect its performance hereunder. The Servicer is not in
default under any agreement involving financial obligations or on any
outstanding obligation which would materially adversely impact its
financial condition or operations or legal documents associated with the
transaction contemplated by this Agreement.
(H) No Amendments. The Servicer shall not extend or otherwise amend
the terms of any 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, 3.4 or 3.5 of the
Manufactured Housing Contract Sale 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 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 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 Article in of the Manufactured Housing
Contract Sale 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 Contract 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
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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 Servicing, Inc. 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 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 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.
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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 Listof 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 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 [____________________], 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 [____________________] as Indenture Trustee for the benefit of
holders of Origen Manufactured Housing Contract Notes, Series 200[_]-[_]." The
Servicer shall pay into the Collection Account as promptly as practicable (not
later than the second Business Day) following receipt thereof:
(i) all payments received after the Cut-Off Date on account of
principal on the 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;
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(v) any amounts payable in connection with the repurchase of any
Contract pursuant to Section 2.03 hereof or Section 3.6 of the Manufactured
Housing Contract Sale 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 Eligible 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.
(b) If at anytime the Servicer receives notice (from S&P, ▇▇▇▇▇'▇, 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 Eligible Investments therein to an
Eligible Account. Following any such transfer, the Servicer must notify each of
S&P, ▇▇▇▇▇'▇ 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;
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(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 3.6 of the Manufactured Housing Contract Sale
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 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.
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(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, as specified in Section 3.03(b)(3) of the Manufactured Housing
Contract Sale Agreement, 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 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
9
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.
(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 Contract 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
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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.
(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.
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(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 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
12
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 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
13
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. Origen Financial
L.L.C. is hereby deemed an acceptable Subservicer for purposes of this
Agreement.
For purposes of this Agreement, the Servicer shall be deemed to have
received any collections, recoveries or payments with respect to the 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 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 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
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
14
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. Annual Statement of Compliance.
The Servicer shall deliver to the Depositor and the Indenture Trustee
on or before March 15 of each year, commencing in March 2007, an Officer's
Certificate stating, as to the signer thereof, that (A) a review of the
Servicer's activities during the preceding calendar year or portion thereof and
of the Servicer's performance under this Agreement has been made under such
officer's supervision and (B) to the best of such officer's knowledge, based on
such review, such party has fulfilled all its obligations under this Agreement,
in all material respects throughout such year or portion thereof, or, if there
has been a failure to fulfill any such obligation in any material respect,
specifying each such failure known to such officer and the nature and status
thereof.
Section 3.16. Annual Assessment and Attestation.
(a) By March 15 of each year, commencing in March 2007, the Servicer, at
its own expense, shall furnish or otherwise make available, to the Indenture
Trustee and the Depositor, a report on an assessment of compliance with the
Relevant Servicing Criteria that contains (A) a statement by such party of its
responsibility for assessing compliance with the Relevant Servicing Criteria,
(B) a statement that such party used the Relevant Servicing Criteria to assess
compliance with the Relevant Servicing Criteria, (C) such party's assessment of
compliance with the Relevant Servicing Criteria as of and for the fiscal year
covered by the Form 10-K required to be filed pursuant to Section [____],
including, if there has been any material instance of noncompliance with the
Relevant Servicing Criteria, a discussion of each such failure and the nature
and status thereof, and (D) a statement that a registered public accounting firm
has issued an attestation report on such party's assessment of compliance with
the Relevant Servicing Criteria as of and for such period.
(b) By March 15 of each year, commencing in March 2007, the Servicer, at
its own expense, shall cause, and each such party shall cause any Servicing
Function Participant engaged by it to cause a registered public accounting firm
that is a member of the American Institute of Certified Public Accountants to
furnish an attestation report to the Indenture Trustee and the Depositor, to the
effect that (i) it has obtained a representation regarding certain matters from
the management of such party, which includes an assertion that such party has
complied with the Relevant Servicing Criteria, and (ii) on the basis of an
examination conducted by such firm in accordance with standards for attestation
engagements issued or adopted by the PCAOB, it is expressing an opinion as to
whether such party's compliance with the Relevant Servicing
15
Criteria was fairly stated in all material respects, or it cannot express an
overall opinion regarding such party's assessment of compliance with the
Relevant Servicing Criteria. In the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such report why
it was unable to express such an opinion. Such report must be available for
general use and not contain restricted use language.
Section 3.17. Optional Redemption of Contracts.
(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 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, 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.
16
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).
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
17
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 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 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
18
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 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 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
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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 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
such Servicer'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 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.
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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;
(c) Any failure on the part of the Servicer to make any required servicing
advance, which failure continues unremedied for a period of 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 any Noteholders of at least 25% of the
aggregate Note Balances of the Notes;
(d) 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;
(e) 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;
(f) 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 3.6(b) of the Manufactured Housing Contract Sale Agreement,
respectively;
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(g) The Average Sixty-Day Delinquency Ratio exceeds [_____]%; (h) The
Current Realized Loss Ratio exceeds [_____]%; or
(h) The Cumulative Realized Loss Ratio exceeds [_____]%.
Section 6.02. Transfer.
(a) If a Servicer Event of Default has occurred and is continuing, either
the Indenture Trustee 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 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
22
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. Backup
Servicer to Act, Appointment of Successor. On and after the time the Servicer
receives a notice of termination pursuant to Section 6.02 or the resignation of
the Servicer in accordance with Section 5.04, 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 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
23
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 Noteholders, the
Indenture Trustee and the initial Servicer, for any and all claims, liabilities,
obligations, losses damages, payments costs or expenses (including reasonable
attorneys' fees) of any kind whatsoever arising from or related to any breach,
inaccuracy, default or nonperformance of such representations, warranties or
covenants of the Issuer, the Seller, the Originator, the Indenture Trustee or
the Servicer 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.
(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.
24
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.
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, and the consent of the Indenture Trustee. 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 Servicing, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(b) in the case of the Backup Servicer: [____________________]
(c) in the case of Rating Agencies: [____________________]
(d) in the case of the Owner Trustee,
the Corporate Trust Office: [____________________]
(e) in the case of the Issuer, to Origen
25
Manufactured Housing Contract
Trust 200[_]-[_]: [____________________]
(f) in the case of the Indenture Trustee: [____________________]
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.
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.
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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 SERVICER AS ADMINISTRATOR
Section 8.01. Administrative Duties.
(a) Duties with Respect to the Indenture. The Servicer 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 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) Reserved.
(iii) 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
27
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
compromiseof any action, claim or lawsuit brought by or against the Issuer
(other than inconnection with the collection of the Contracts);
(C) the amendment, change or modification of this Servicing
Agreementor 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) Servicer shall act as Administrator. By execution of this Agreement,
the Servicer 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 hereof. Upon the occurrence of a Service Transfer, the Servicer shall
continue to act as "Administrator" hereunder unless a successor Administrator is
appointed by 1 00% 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
28
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 [____________________], not individually or personally, but solely as Owner
Trustee of Origen Manufactured Housing Contract Trust 200[_]-[_], 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 [____________________] 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 [____________________], 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 [____________________] 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. Commission Reporting: Form 10-D.
(a) Within 15 days after each Payment Date (subject to permitted extensions
under the Exchange Act), the Indenture Trustee shall prepare and file on behalf
of the Trust any Form 10-D required by the Exchange Act, in form and substance
as required by the Exchange Act. The Indenture Trustee shall file each Form 10-D
with a copy of the related Monthly Statement attached thereto. Any disclosure in
addition to the Monthly Statement that is required to be included on Form 10-D
("Additional Form 10-D Disclosure") shall be reported by the parties hereto to
the Depositor and the Indenture Trustee and directed and approved by the
Depositor pursuant to the following paragraph, and the Indenture Trustee will
have no duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-D Disclosure, except as set forth in the next paragraph.
(b) As set forth on Exhibit M hereto, within 5 calendar days after the
related Payment Date, (i) the parties to this transaction shall be required to
provide to the Indenture Trustee and to the Depositor, to the extent known by a
responsible officer thereof, in ▇▇▇▇▇-compatible form, or in such other form as
otherwise agreed upon by the Indenture Trustee and such party, the form and
substance of any Additional Form 10-D Disclosure, if applicable, and (ii) the
Depositor will approve, as to form and substance, or disapprove, as the case may
be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The
Depositor will be responsible for any reasonable fees and expenses assessed or
incurred by the Indenture Trustee in connection with including any Additional
Form 10-D Disclosure on Form 10-D pursuant to this paragraph.
29
(c) After preparing the Form 10-D, the Indenture Trustee shall, upon
request, forward electronically a copy of the Form 10-D to the Depositor
(provided that such Form 10-D includes any Additional Form 10-D Disclosure).
Within two Business Days after receipt of such copy, but no later than the 12th
calendar day after the Payment Date, the Depositor shall notify the Indenture
Trustee in writing of any changes to or approval of such Form 10-D. In the
absence of receipt of any written changes or approval, or if the Depositor does
not request a copy of a Form 10-D, the Indenture Trustee shall be entitled to
assume that such Form 10-D is in final form and the Indenture Trustee may
proceed with the execution and filing of the Form 10-D. A duly authorized
officer of the Servicer shall sign each Form 10-D. Promptly (but no later than
one Business Day) after filing with the Commission, the Indenture Trustee will
make available on its internet website a final executed copy of each Form 10-D
filed by the Indenture Trustee. Each party to this Agreement acknowledges that
the performance by the Indenture Trustee of its duties under this Section 8.05
related to the timely preparation, execution and filing of Form 10-D is
contingent, in part, upon such parties strictly observing all applicable
deadlines in the performance of their duties under this Section 8.05. The
Indenture Trustee shall not have any liability for any loss, expense, damage,
claim arising out of or with respect to any failure to properly prepare, execute
and/or timely file such Form 10-D, where such failure results from the Indenture
Trustee's inability or failure to obtain or receive, on a timely basis, any
information from any other party hereto needed to prepare, arrange for execution
or file such Form 10-D, not resulting from its own negligence, bad faith or
willful misconduct.
Section 8.06. Commission Reporting: Form 8-K.
(a) Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"), and if
requested by the Depositor, the Indenture Trustee shall prepare and file on
behalf of the Trust any Form 8-K, as required by the Exchange Act, provided that
the Depositor shall file the initial Form 8-K in connection with the issuance of
the Notes. Any disclosure or information related to a Reportable Event or that
is otherwise required to be included on Form 8-K other than the initial Form 8-K
("Form 8-K Disclosure Information") shall be reported by the parties hereto to
the Depositor and the Indenture Trustee and directed and approved by the
Depositor pursuant to the following paragraph, and the Indenture Trustee will
have no duty or liability for any failure hereunder to determine or prepare any
Form 8-K Disclosure Information or any Form 8-K, except as set forth in the next
paragraph.
(b) As set forth on Exhibit O hereto, for so long as the Trust is subject
to the Exchange Act reporting requirements, no later than the close of business
on the 2nd Business Day after the occurrence of a Reportable Event (i) the
parties to this transaction shall be required to provide to the Indenture
Trustee and to the Depositor, to the extent known by a responsible officer
thereof, in ▇▇▇▇▇-compatible form, or in such other form as otherwise agreed
upon by the Indenture Trustee and such party, the form and substance of any Form
8-K Disclosure Information, if applicable, and (ii) the Depositor will approve,
as to form and substance, or disapprove, as the case may be, the inclusion of
the Form 8-K Disclosure Information. The Depositor will be responsible for any
reasonable fees and expenses assessed or incurred by the Indenture Trustee in
connection with any Form 8-K Disclosure Information on Form 8-K pursuant to this
paragraph.
30
(c) After preparing the Form 8-K, the Indenture Trustee shall, upon
request, forward electronically a copy of the Form 8-K to the Depositor. No
later than the close of business on the third Business Day after the Reportable
Event, the Depositor shall notify the Indenture Trustee in writing of any
changes to or approval of such Form 8-K. In the absence of receipt of any
written changes or approval, or if the Depositor does not request a copy of a
Form 8-K, the Indenture Trustee shall be entitled to assume that such Form 8-K
is in final form and the Indenture Trustee may proceed with the execution and
filing of the Form 8-K. A duly authorized officer of the Servicer shall sign
each Form 8-K. Promptly (but no later than one Business Day) after filing with
the Commission, the Indenture Trustee will, make available on its internet
website a final executed copy of each Form 8-K. The parties to this Agreement
acknowledge that the performance by the Indenture Trustee of its duties under
this Section 8.08 related to the timely preparation, execution and filing of
Form 8-K is contingent, in part, upon such parties strictly observing all
applicable deadlines in the performance of their duties under this Section 8.06.
Neither the Master Servicer nor the Indenture Trustee shall have any liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare, execute and/or timely file such Form 8-K, where
such failure results from the Indenture Trustee's inability or failure to obtain
or receive, on a timely basis, any information from any other party hereto
needed to prepare, arrange for execution or file such Form 8-K, not resulting
from its own negligence, bad faith or willful misconduct.
Section 8.07. Commission Reporting: Form 10-K.
(a) On or prior to the 90th day after the end of each fiscal year of the
Trust or such earlier date as may be required by the Exchange Act (the "10-K
Filing Deadline") (it being understood that the fiscal year for the Trust ends
on December 31st of each year), commencing in March 2007, the Indenture Trustee
shall prepare and file on behalf of the Trust a Form 10-K, in form and substance
as required by the Exchange Act. Each such Form 10-K shall include the following
items, in each case to the extent they have been delivered to the Indenture
Trustee within the applicable time frames set forth in this Agreement and the
related Servicing Agreements, (i) an annual compliance statement for the
Subservicer, the Servicer, the Indenture Trustee and any Servicing Function
Participant engaged by such parties (each, a "Reporting Servicer"), (ii)(A) the
annual reports on assessment of compliance with servicing criteria for each
Reporting Servicer, and (B) if each Reporting Servicer's report on assessment of
compliance with servicing criteria identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or if each
Reporting Servicer's report on assessment of compliance with servicing criteria
is not included as an exhibit to such Form 10-K, disclosure that such report is
not included and an explanation why such report is not included, (iii)(A) the
registered public accounting firm attestation report for each Reporting
Servicer, and (B) if any registered public accounting firm attestation report
identifies any material instance of noncompliance, disclosure identifying such
instance of noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form 10-K, disclosure
that such report is not included and an explanation why such report is not
included, and (iv) a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification as described in Section 8.14;
provided however, that the Indenture Trustee, at its discretion, may omit from
the Form 10-K any annual compliance statement, assessment of compliance or
attestation report that is not required to be filed with such Form 10-K pursuant
to Regulation AB. Any disclosure or information in addition to (i) through (iv)
above that is required to be included on Form 10-K ("Additional Form 10-K
Disclosure")
31
shall be reported by the parties set forth on Exhibit N to the Depositor and the
Indenture Trustee and directed and approved by the Depositor pursuant to the
following paragraph, and the Indenture Trustee will have no duty or liability
for any failure hereunder to determine or prepare any Additional Form 10-K
Disclosure, except as set forth in the next paragraph.
(b) No later than March 1 (with a ten-calendar day cure period) of each
year that the Trust is subject to the Exchange Act reporting requirements,
commencing in 2007, (i) the parties to this transaction shall be required to
provide to the Indenture Trustee and to the Depositor, to the extent known by a
responsible officer thereof, in ▇▇▇▇▇-compatible form, or in such other form as
otherwise agreed upon by the Indenture Trustee and such party, the form and
substance of any Additional Form 10-K Disclosure, if applicable, together with
an Additional Disclosure Notification and (ii) the Depositor will approve, as to
form and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-K Disclosure on Form 10-K. The Depositor will be responsible
for any reasonable fees and expenses assessed or incurred by the Indenture
Trustee in connection with including any Additional Form 10-K Disclosure on Form
10-K pursuant to this paragraph.
(c) After preparing the Form 10-K, the Indenture Trustee shall, upon
request, forward electronically a copy of the Form 10-K to the Depositor. Within
three Business Days after receipt of such copy, but no later than March 25th,
the Depositor shall notify the Indenture Trustee in writing of any changes to or
approval of such Form 10-K. In the absence of receipt of any written changes or
approval, or if the Depositor does not request a copy of a Form 10-K, the
Indenture Trustee shall be entitled to assume that such Form 10-K is in final
form and the Indenture Trustee may proceed with the execution and filing of the
Form 10-K. A senior officer of the Master Servicer in charge of the master
servicing function shall sign each Form 10-K. Promptly (but no later than one
Business Day) after filing with the Commission, the Indenture Trustee will make
available on its internet website a final executed copy of each Form 10-K filed
by the Indenture Trustee. The parties to this Agreement acknowledge that the
performance by the Indenture Trustee of their respective duties under this
Section 8.07 related to the timely preparation, execution and filing of Form
10-K is contingent, in part, upon such parties (and any Additional Servicer or
Servicing Function Participant) strictly observing all applicable deadlines in
the performance of their duties under this Section 8.07, Section 3.15 and
Section 3.16. The Indenture Trustee shall have any liability for any loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare, execute and/or timely file such Form 10-K, where such failure
results from the Indenture Trustee's inability or failure to obtain or receive,
on a timely basis, any information from any other party hereto needed to
prepare, arrange for execution or file such Form 10-K, not resulting from its
own negligence, bad faith or willful misconduct.
Section 8.08. Commission Reporting: DeListing, Amendments and Late Filing.
(a) On or before January 30 of the first year in which the Indenture
Trustee is able to do so under applicable law, the Indenture Trustee shall
prepare, execute and file a Form 15 Suspension Notification relating to the
automatic suspension of reporting in respect of the Trust under the Exchange
Act.
32
(b) In the event that the Indenture Trustee is unable to timely file with
the Commission all or any required portion of any Form 8-K, 10-D or 10-K
required to be filed by this Agreement because required disclosure information
was either not delivered to it or delivered to it after the delivery deadlines
set forth in this Agreement or for any other reason, the Indenture Trustee will
promptly notify the Depositor. In the case of Form 10-D and 10-K, the parties to
this Agreement will cooperate to prepare and file a Form 12b-25 and a 10-D/A and
10-K/A as applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case
of Form 8-K, the Indenture Trustee will, upon receipt of all required Form 8-K
Disclosure Information and upon the approval and direction of the Depositor,
include such disclosure information on the next Form 10-D. In the event that any
previously filed Form 8-K, 10-D or 10-K needs to be amended in connection with
any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form 8-K
Disclosure Information, the Indenture Trustee will electronically notify the
Depositor and such other parties to the transaction as are affected by such
amendment, and such parties will cooperate to prepare any necessary 8-K/A,
10-D/A or 10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K, 10-D or
10-K shall be signed by a duly authorized officer, or senior officer in charge
of master servicing, as applicable, of the Master Servicer. The parties to this
Agreement acknowledge that the performance by the Indenture Trustee of its
duties under this Section 8.10 related to the timely preparation, execution and
filing of Form 15, a Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K is
contingent, in part, upon each such party performing its duties under this
Section. The Indenture Trustee shall not have any liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare, execute and/or timely file any such Form 15, Form 12b-25 or any
amendments to Forms 8-K, 10-D or 10-K, where such failure results from the
Indenture Trustee's inability or failure to obtain or receive, on a timely
basis, any information from any other party hereto needed to prepare, arrange
for execution or file such Form 15, Form 12b-25 or any amendments to Forms 8-K,
10-D or 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
33
IN WITNESS WHEREOF, the Servicer, 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 SERVICING, INC.,
as Servicer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ORIGEN MANUFACTURED HOUSING CONTRACT
TRUST 200[_____]-[_____], as Issuer
By: [____________________], not in its
individual capacity, but solely as Owner
Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[____________________], as Indenture
Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[____________________] as Backup
Servicer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Acknowledged and agreed with respect to
Section 2.03 hereof:
ORIGEN FINANCIAL L.L.C., as Originator
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
2
EXHIBIT A
LIST OF CONTRACTS
(Filed Manually)
(In accordance with Rule 202 of Regulation S-T, this List of Contracts is being
filed in paper pursuant to a continuing hardship exemption.)
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
[____________________] (the " Agreement"), among the Origen Servicing, Inc., the
Origen Manufactured Housing Trust 200[_____]-[_____], [____________________] as
backup servicer (the "Backup Servicer") and [____________________] (the
"Indenture Trustee") (all capitalized terms used herein without definition
having the respective meanings specified in the Indenture (the "Indenture"),
dated as of [____________________], between Origen Manufactured Housing Contract
Trust 200 [_____]-[_____] (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 200[_____]-[_____]
(the "Trust" or the "Issuer") Manufactured Housing Contract Trust
Notes, Series 200[_____]-[_____]
I, [identify the certifying individual], the senior officer of Origen
Servicing, Inc., the Administrator for Origen Manufactured Housing Contract
Trust 200[_____]-[_____] (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.
Capitalized terms used but not defined herein have the meanings
ascribed to them in Appendix A to the Indenture, dated __________, 200[_____]
(the "Indenture"), between Origen Manufactured Housing Contract Trust
200[_____]-[_____], as issuer, and [____________________], as indenture trustee.
[ADMINISTRATOR].
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
2
EXHIBIT C-2
FORM OF CERTIFICATION TO BE PROVIDED
TO THE ADMINISTRATOR BY THE INDENTURE TRUSTEE
Re: Origen Manufactured Housing Contract Trust 200[_____]-[_____]
(the "Trust" or the "Issuer") Manufactured Housing Contract Trust
Notes, Series 200[_____]-[_____]
I, [identify the certifying individual], a [title] of
[______________], 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 __________, 200[_____]
(the "Indenture"), between Origen Manufactured Housing Contract Trust
200[_____]-[_____], as issuer, and [____________________], as indenture trustee.
[____________________], as Indenture
Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
EXHIBIT C-3
FORM OF CERTIFICATION TO BE PROVIDED
TO THE ADMINISTRATOR BY THE SERVICER
Re: Origen Manufactured Housing Contract Trust 200[_____]-[_____]
(the "Trust" or the "Issuer") Manufactured Housing Contract Trust
Notes, Series 200[_____]-[_____]
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]
---------------------------
EXHIBIT D
OFFICER'S CERTIFICATE
REGARDING ANNUAL STATEMENT OF COMPLIANCE
_________________ Trust Notes, Series 200__-___
I,______, hereby certify that I am a duly appointed
[___________________] ____________ of [___________________]_________ (the
"[Servicer]"), and further certify as follows:
1. This certification is being made pursuant to the terms of the
Servicing Agreement, dated as of ___________, ______ (the "Servicing
Agreement"), among ________________, as issuer, the [Servicer], as [servicer]
and [____________________], as indenture trustee.
2. I have reviewed the activities of the [Servicer] during the
preceding year and the [Servicer's] performance under the Servicing Agreement
and to the best of my knowledge, based on such review, the [Servicer] 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: ______________________________
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:
---------------------------------
2