Exhibit 99.5
ORIGEN RESIDENTIAL SECURITIES, INC.
as Purchaser,
[ORIGEN SECURITIZATION COMPANY, LLC]
[ORIGEN SERVICING, INC.]
as Seller,
and
ORIGEN FINANCIAL L.L.C.
as Originator
ASSET PURCHASE AGREEMENT
Series 20__-_
Dated as of _______, 20__
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS................................................................................. 2
Section 1.1 Definitions..................................................................... 2
ARTICLE II SALE OF ASSETS AND RELATED PROVISIONS..................................................... 2
Section 2.1 Sale of Assets.................................................................. 2
Section 2.2 Obligations of the Seller Upon Sale............................................. 2
Section 2.3 Payment of Purchase Price for the Assets........................................ 4
ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH...................................... 4
Section 3.1 Seller Representations and Warranties........................................... 4
Section 3.2 Originator Representations and Warranties....................................... 5
Section 3.3 Representations and Warranties Regarding Each Contract.......................... 6
Section 3.4 Representations and Warranties Regarding Each Mortgage Loan..................... 10
Section 3.5 Representations and Warranties Regarding the Assets in the Aggregate............ 15
Section 3.6 Representations and Warranties Regarding the Asset Files........................ 16
Section 3.7 Remedies for Breach............................................................. 17
ARTICLE IV SELLER'S COVENANTS........................................................................ 19
Section 4.1 Covenants of the Seller......................................................... 19
ARTICLE V INDEMNIFICATION BY THE ORIGINATOR.......................................................... 19
Section 5.1 Indemnification................................................................. 19
ARTICLE VI TERMINATION............................................................................... 19
Section 6.1 Termination..................................................................... 19
ARTICLE VII MISCELLANEOUS PROVISIONS................................................................. 19
Section 7.1 Amendment....................................................................... 19
Section 7.2 Governing Law................................................................... 20
Section 7.3 Notices......................................................................... 20
Section 7.4 Severability of Provisions...................................................... 21
Section 7.5 Relationship of Parties......................................................... 21
Section 7.6 Counterparts.................................................................... 21
Section 7.7 Further Agreements.............................................................. 22
Section 7.8 Intention of the Parties........................................................ 22
Section 7.9 Successors and Assigns; Assignment of Agreement................................. 22
Section 7.10 Survival....................................................................... 22
Section 7.11 Third Party Beneficiary........................................................ 23
SCHEDULE 1
LIST OF CONTRACTS ........................................................................... I-1
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Exhibit 99.5
This ASSET PURCHASE AGREEMENT (this "Agreement"), dated as of
_____________, 20__, is made among [Origen Securitization Company, LLC] [Origen
Servicing, Inc.] (the "Seller"), Origen Residential Securities, Inc. (the
"Purchaser") and Origen Financial L.L.C. (the "Originator").
W I T N E S S E T H:
WHEREAS, the Seller owns the manufactured housing installment sales
contracts and installment loan agreements listed on Schedule I-A hereto
(collectively, the "Contracts") and the mortgage loans listed on Schedule I-B
hereto (the "Mortgage Loans," and, together with the Contracts, the "Assets");
and
WHEREAS, the parties hereto desire that the Seller sell the Assets
to the Purchaser, and that the Originator make certain representations and
warranties on the Closing Date and undertake certain obligations on the Closing
Date with respect to such Assets, in each case pursuant to the terms of this
Agreement; and
[FOR DEBT DEALS: WHEREAS, pursuant to the terms of a Trust Agreement
dated as of __________, 20__ (the "Trust Agreement"), among the Purchaser, as
depositor, [__________________], as owner trustee (the "Owner Trustee") and
[__________________], as certificate registrar and certificate paying agent, the
Purchaser will convey the Assets to the Issuer;] and
[FOR DEBT DEALS: WHEREAS, pursuant to the terms of a Servicing
Agreement dated as of _____________, 20__ (the "Servicing Agreement"), among
Origen Servicing, Inc., as servicer (the "Servicer"), [__________________, as
backup servicer,] Origen Manufactured Housing Contract Trust 20__-_, a Delaware
statutory trust (the "Issuer") and [__________________] ("[Bank]"), as
[Indenture] Trustee (the "[Indenture] Trustee"), the Servicer will service the
Assets directly;] and
[FOR DEBT DEALS: WHEREAS, pursuant to the terms of an Indenture
dated as of _____________, 20__ (the "Indenture"), between the Issuer and the
[Indenture] Trustee, the Issuer will pledge Assets and issue and transfer to,
the Purchaser the Origen Manufactured Housing Contract Collateralized Notes,
Series 20__-_, Class A-1, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-4, Class M-1 and Class
M-2 Notes (collectively, the "Notes"), representing debt of the Issuer;] and
[FOR DEBT DEALS: WHEREAS, the parties intend these transactions to
be treated for federal, state and local tax purposes as the retention by Origen
REIT of ownership of the Assets and the financing of such Assets through the
issuance of secured indebtedness evidenced by the Notes, and have mutually
covenanted to treat the transactions consistent with that intent for all
federal, state and local tax purposes;]
[FOR CERTIFICATE DEALS: WHEREAS, pursuant to the terms of a Pooling
and Servicing Agreement dated as of [_____________, 20__], (the "Pooling and
Servicing Agreement"), among the Originator, the Seller, the Depositor, the
Servicer[, the Backup Servicer] and the Trustee, the Depositor will convey the
assets to Origen Residential Pass-Through Certificates Trust 20__-__, the
Servicer will service the Assets and the Origen Residential Pass-Through
Certificates, Series 20__-_ (the "Certificates") will be issued;]
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For all purposes of this Asset Purchase
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 attached to the
Indenture as Appendix A, which is incorporated by reference herein] [Pooling and
Servicing Agreement]. All other capitalized terms used herein shall have the
meanings specified herein.
ARTICLE II
SALE OF ASSETS AND RELATED PROVISIONS
Section 2.1 Sale of Assets.
(a) The Seller, concurrently with the execution and delivery of this
Agreement, does hereby transfer, sell, assign, set over, and otherwise convey to
the Purchaser, without recourse, all of its right, title and interest in, to and
under the following, whether now existing or hereafter acquired and wherever
located: (i) the Contracts listed on the List of Contracts and the Mortgage
Loans listed on the Mortgage Loan Schedule, as amended from time to time
(including the security interests created thereby), including all principal of
and interest received on or with respect to such Contracts and Mortgage Loans
after the Cut-Off Date, (ii) all of the rights under all Hazard Insurance
Policies relating to the Manufactured Homes and Mortgaged Properties securing
such Assets for the benefit of the creditors under such Assets, (iii) all
documents contained in the Asset Files with respect to the related Assets, and
(iv) all proceeds of any of the foregoing.
(b) Other than for federal, state and local tax purposes, the
parties hereto intend that the transaction set forth herein be a sale by the
Seller to the Purchaser of all the Seller's right, title and interest in and to
the Assets and other property described above. In the event the transaction set
forth herein is deemed not to be a sale, the Seller hereby grants to the
Purchaser a security interest in all of the Seller's right, title and interest
in, to and under the Assets and other property described above, whether now
existing or hereafter created, to secure all of the Seller's obligations
hereunder; and this Agreement shall constitute a security agreement under
applicable law. The transactions described herein will be treated as set forth
in Section 7.8 hereof for federal, state and local tax purposes.
Section 2.2 Obligations of the Seller Upon Sale.
(a) In connection with the transfer pursuant to Section 2.1 hereof,
the Seller further agrees, at its own expense, on or prior to the Closing Date
with respect to each Asset, (a) to indicate in its books and records that the
Assets have been sold to the Purchaser or to the Issuer, as assignee of the
Purchaser, pursuant to this Agreement and (b) to deliver to the Purchaser an
electronic file containing a true and complete list of all such Assets
specifying for
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each such Asset, as of the related Cut-off Date: (i) its account
number and (ii) the Cut-off Date Principal Balance and such other information
specified in the definition of "List of Contracts" or of "Mortgage Loan
Schedule," as applicable, in the [Indenture] [Pooling and Servicing Agreement].
Such electronic file shall also be marked as Schedule I to this Agreement and is
hereby incorporated into and made a part of this Agreement.
(b) In connection with the conveyance by the Seller, on or prior to
the Closing Date with respect to each Asset, the Seller shall deliver or cause
to be delivered to the [Indenture] Trustee, or the Custodian on its behalf, the
original documents or instruments with respect to each Contract, Land-and-Home
Contract and Mortgage Loan transferred and assigned, the required contents of
the related Contract File, Land-and-Home Contract File, or Trustee Mortgage Loan
File, as the case may be.
(c) The Seller further hereby confirms to the Purchaser that, as of
the Closing Date with respect to each Asset, it has caused the portions of the
Electronic Ledger relating to the Assets maintained by the Seller to be clearly
and unambiguously marked to indicate that the Assets have been sold to the
Purchaser or the [Indenture] Trustee as assignee of the Purchaser, as
applicable. The Electronic Ledger shall indicate that the Assets are held by the
Custodian on behalf of the Trustee.
(d) For administrative convenience and facilitation of servicing and
to reduce closing costs, the Assignments of Mortgage related to Land-and-Home
Contracts shall not be required to be submitted for recording; provided,
however, that each Assignment of Mortgage for each Land-and-Home Contract shall
be submitted for recording by the Seller, at its expense and at the direction of
the Servicer, in the name of the [Indenture] Trustee, at no expense to the
Issuer or the [Indenture] Trustee, upon the occurrence of a bankruptcy or
insolvency proceeding instituted by the Servicer, or the continuance of such a
proceeding against the Servicer instituted by another party, unstayed, for 60
days. Upon receipt of written notice that recording of the Assignments of
Mortgage is required pursuant to the condition set forth in the preceding
sentence, the Seller shall be required to deliver such Assignments of Mortgage
within 60 days following receipt of such notice.
The Seller promptly shall (within 60 Business Days following the
date it becomes required to submit Assignments of Mortgage related to
Land-and-Home Contracts for recording pursuant to this Section 2.2(d)) submit or
cause to be submitted for recording, at no expense to the Purchaser (or the
Trust Estate or the [Indenture] Trustee under the Indenture), in the appropriate
public office for real property records, each Assignment of Mortgage for each
Land-and-Home Contract and shall execute each original Assignment of Mortgage in
the following form: "[_______________________], as [Indenture] Trustee under the
applicable agreement." In the event that any such Assignment of Mortgage is lost
or returned unrecorded because of a defect therein, the Seller promptly shall
prepare a substitute Assignment of Mortgage or cure such defect, as the case may
be, and thereafter cause each such Assignment of Mortgage to be duly recorded.
(e) In lieu of recording an Assignment of any Mortgage for any
Mortgage Loan, the Seller may deliver or cause to be delivered to the
[Indenture] Trustee or its Custodian the Assignment of the Mortgage from the
Seller to the [Indenture] Trustee in a form suitable for recordation, together
with an Opinion of Counsel to the effect that recording is not required to
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protect the Trustee's right, title and interest in and to the related Mortgage
Loan or, in case a court should recharacterize the sale of the Mortgage Loans as
a financing, to perfect a first priority security interest in favor of the
[Indenture] Trustee in the related Mortgage Loan. In the event that the Servicer
receives notice that recording is required to protect the right, title and
interest of the [Indenture] Trustee in and to any such Mortgage Loan for which
recordation of an Assignment has not previously been required, the Servicer
shall promptly notify the [Indenture] Trustee and the [Indenture] Trustee shall
within five Business Days of its receipt of such notice deliver, or cause to be
delivered, each previously unrecorded Assignment to the Servicer for
recordation.
(f) If a material defect in any Asset File is discovered which may
materially and adversely affect the value of the related Asset, or the interests
of the [Indenture] Trustee (as pledgee of the Assets), the Noteholders or the
Certificateholders in such Asset including if any document required to be
delivered to the [Indenture] Trustee has not been delivered, the Seller shall
cure such defect, repurchase the related Asset at the Repurchase Price or
substitute an Eligible Substitute Asset for the related Asset upon the same
terms and conditions set forth in Section 3.6 hereof for breaches of
representations and warranties as to the Assets.
(g) The Seller agrees to prepare and execute UCC-1 financing
statements with the Secretary of State in the State of Delaware (which shall
have been filed within seven days of the Closing Date) describing the Assets and
naming the Seller as debtor and the Purchaser (and indicating that such Assets
have been assigned to the Issuer and pledged to the [Indenture] Trustee), as
secured party and all necessary continuation statements and any amendments to
the UCC-1 financing statements required to reflect a change in the name or
corporate structure of the Seller or the filing of any additional UCC-1
financing statements due to the change in the location of the Seller, as are
necessary to perfect and protect the [Indenture] Trustee's interest in each
Asset and the proceeds thereof.
(h) [The Seller may from time to time sell Subsequent Assets to the
Depositor on Subsequent Transfer Dates as described in Section 2.03 of the
Pooling and Servicing Agreement.]
Section 2.3 Payment of Purchase Price for the Assets. In consideration of
the sale of the Assets from the Seller to the Purchaser on the Closing Date, the
Purchaser agrees to pay to the Seller on the Closing Date by transfer of
immediately available funds, an amount equal to $______________ (the "Purchase
Price")[, and to transfer to, or upon order of, the Seller on the Closing Date
the Trust Certificates].
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.1 Seller Representations and Warranties. The Seller represents
and warrants to the Purchaser as of the Closing Date:
(a) Organization and Good Standing. The Seller is a limited
liability company duly formed, validly existing and in good standing under the
laws of the jurisdiction of its organization and has the power to own its assets
and to transact the business in which it is
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currently engaged. The Seller is duly qualified to do business as a foreign
limited liability company and is in good standing in each jurisdiction in which
the character of the business transacted by it or properties owned or leased by
it requires such qualification and in which the failure so to qualify would have
a material adverse effect on the business, properties, assets, or condition
(financial or other) of the Seller.
(b) Authorization; Binding Obligations. The Seller has the power and
authority to make, execute, deliver and perform this Agreement and all of the
transactions contemplated under this Agreement and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement.
When executed and delivered, this Agreement will constitute the legal, valid and
binding obligation of the Seller enforceable in accordance with its terms,
except as enforcement of such terms may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies.
(c) No Consent Required. The Seller is not required to obtain the
consent of any other party or any consent, license, approval or authorization
from, or registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Agreement.
(d) No Violations. The execution, delivery and performance of this
Agreement by the Seller will not violate any provision of any existing law or
regulation or any order or decree of any court or the organization documents of
the Seller, or constitute a material breach of any mortgage, indenture, contract
or other agreement to which the Seller is a party or by which the Seller may be
bound.
(e) Litigation. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending, or to the
knowledge of the Seller threatened, against the Seller or any of its properties
or with respect to this Agreement or the [Certificates] [Notes] which, if
adversely determined, would in the opinion of the Seller have a material adverse
effect on the transactions contemplated by this Agreement.
(f) Seller's Office. The Seller's chief executive office is in
Southfield, Michigan.
(g) Seller's Location. For purposes of the Uniform Commercial Code,
the Seller's location is Delaware.
Section 3.2 Originator Representations and Warranties. The Originator
represents and warrants to the Purchaser as of the Closing Date with respect to
each [Initial and Additional] Asset:
(a) Organization and Good Standing. The Originator is a limited
liability company duly formed, validly existing and in good standing under the
laws of the jurisdiction of its organization and has the power to own its assets
and to transact the business in which it is currently engaged. The Originator is
duly qualified to do business as a foreign limited liability company and is in
good standing in each jurisdiction in which the character of the business
transacted by it or properties owned or leased by it requires such qualification
and in which the
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failure so to qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of the Originator.
(b) Authorization; Binding Obligations. The Originator has the power
and authority to make, execute, deliver and perform this Agreement and all of
the transactions contemplated under this Agreement and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement.
When executed and delivered, this Agreement will constitute the legal, valid and
binding obligation of the Originator enforceable in accordance with its terms,
except as enforcement of such terms may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies.
(c) No Consent Required. The Originator is not required to obtain
the consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement.
(d) No Violations. The execution, delivery and performance of this
Agreement by the Originator will not violate any provision of any existing law
or regulation or any order or decree of any court or the organization documents
of the Originator, or constitute a material breach of any mortgage, indenture,
contract or other agreement to which the Originator is a party or by which the
Originator may be bound.
(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 Originator threatened, against the Originator or any of its
properties or with respect to this Agreement or the [Notes] [Certificates]
which, if adversely determined, would in the opinion of the Originator have a
material adverse effect on the transactions contemplated by this Agreement.
(f) Licensing. The Originator is duly registered as a finance
company in each state in which Contracts were originated, to the extent such
registration is required by applicable law.
(g) Originator's Office. The Originator's chief executive office is
in Southfield, Michigan.
(h) Origen REIT is a REIT. Origen Special Purpose, L.L.C. and any
Affiliate of Origen REIT that holds a Trust Certificate is a "qualified REIT
subsidiary" as defined in Section 856(i) of the Internal Revenue Code of 1986,
as amended.
Section 3.3 Representations and Warranties Regarding Each Contract.
The Seller and Originator each represents and warrants to the
Purchaser and its assignees as of the Closing Date with respect to each [Initial
and Additional] Contract [, and as of the applicable Subsequent Transfer Date
with respect to each Contract that is a Subsequent Asset identified in an
updated List of Contracts]:
(a) List of Contracts. The information set forth in the applicable
List of Contracts is true and correct as of its date.
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(b) Payments. As of the Cut-Off Date, the most recent scheduled
payment was made by or on behalf of the Obligor (without any advance from the
Seller or any Person acting at the request of the Seller) or was not past due
for more than [59] days.
(c) No Waivers. The terms of the Contract have not been waived,
altered or modified in any respect, except by instruments or documents
identified in the Contract File or Land-and-Home Contract File, as applicable.
(d) Binding Obligation. The Contract is the legal, valid and binding
obligation of the Obligor thereunder and is enforceable in accordance with its
terms, except as such enforceability may be limited by laws affecting the
enforcement of creditors' rights generally.
(e) No Defenses. The Contract is not subject to any right of
rescission, setoff, counterclaim or defense, including the defense of usury, and
the operation of any of the terms of the Contract or the exercise of any right
thereunder will not render the Contract unenforceable in whole or in part or
subject to any right of rescission, setoff, counterclaim or defense, including
the defense of usury, and no such right of rescission, setoff, counterclaim or
defense has been asserted with respect thereto.
(f) Insurance Coverage. The Manufactured Home securing the Contract
is covered by a Hazard Insurance Policy in the amount required by Section [3.10
of the Servicing Agreement] [5.09 of the Pooling and Servicing Agreement]. With
respect to any Contract, the Seller has obtained: (i) a statement from the
Obligor's insurance agent or other information source 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 is at least equal to that required
by Section [3.10 of the Servicing Agreement] [5.09 of the Pooling and Servicing
Agreement] or such lesser coverage as may be available under the federal flood
insurance program. All premiums due as of the Closing Date on such insurance
have been paid in full.
(g) Origination. The Contract was originated by a manufactured
housing dealer and purchased by the Originator, or originated by the Originator
directly, in the regular course of its business.
(h) Lawful Assignment. The Contract was not originated in and is not
subject to the laws of any jurisdiction whose laws would make the transfer of
the Contract pursuant to this Agreement or pursuant to transfers of Notes or
Certificates, or the ownership of the Contract by the Issuer, unlawful or render
the Contract unenforceable.
(i) Compliance with Law. At and since the date of origination of the
Contract, all requirements of any federal and state laws, rules and regulations
applicable to the Contract, including, without limitation, usury, truth in
lending, equal credit opportunity, predatory and abusive lending laws, have been
complied with, and the Originator shall for at least the period of this
Agreement, maintain in its possession, available for the [Indenture] Trustee's
inspection, and shall deliver to the [Indenture] Trustee upon demand, evidence
of compliance with all such requirements. Such compliance is not affected by the
Purchaser's or its assignee's ownership of the Contract.
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(j) Contract in Force. The obligation set forth in the Contract has
not been satisfied or subordinated in whole or in part, nor has the Contract
been rescinded, and the Manufactured Home securing the Contract has not been
released from the lien of the Contract in whole or in part.
(k) Valid Security Interest. Each Contract (other than the
Land-and-Home Contracts) creates a valid and enforceable perfected first
priority security interest in favor of the Originator in the Manufactured Home
covered thereby as security for payment of the Cut-Off Date Principal Balance of
such Contract. The Originator has assigned to the Seller and the Seller has
assigned all of its right, title and interest in such Contract, including the
security interest in the Manufactured Home covered thereby, to the Purchaser.
The Purchaser will own each Contract free of any lien and has and will have a
valid and enforceable first priority security interest in each Manufactured Home
covered thereby. Upon execution of the [Indenture] [Pooling and Servicing
Agreement], the [Indenture] Trustee will have a valid and perfected first
priority security interest in the related Manufactured Home securing each
Contract included in the Trust Estate.
Each Mortgage related to a Land-and-Home Contract is a valid first
lien in favor of the Seller on real property securing the amount owed by the
Obligor under the related Land-and-Home Contract subject only to (i) the lien of
current real property taxes and assessments, (ii) covenants, conditions and
restrictions, rights of way, easements and other matters of public record as of
the date of recording of such Mortgage, such exceptions appearing of record
being acceptable to mortgage lending institutions generally in the area wherein
the property subject to the Mortgage is located or specifically reflected in the
appraisal obtained in connection with the origination of the related
Land-and-Home Contract obtained by the Seller and (iii) other matters to which
like properties are commonly subject which do not materially interfere with the
benefits of the security intended to be provided by such Mortgage. As of the
Closing Date, with respect to each Contract, the Seller will have assigned all
of its right, title and interest in such Land-and-Home Contract and related
Mortgage, including the security interest in the Manufactured Home covered
thereby, to the Purchaser who will assign it to the [Issuer] [Trust], [who will
pledge it to the [Indenture] Trustee under the Indenture.] The Purchaser will
have a valid and perfected and enforceable first priority security interest each
Mortgaged Property related to a Land-and-Home Contract, subject to the
exceptions set forth above.
(l) Capacity of Parties. The signature(s) of the Obligor(s) on the
Contract are genuine and all parties to the Contract had full legal capacity to
execute the Contract.
(m) Good Title. In the case of a Contract purchased from a
manufactured housing dealer, the Originator purchased the Contract for fair
value and took possession thereof in the ordinary course of its business,
without knowledge that the Contract was subject to a security interest.
Immediately prior to the transfer hereunder, the Seller has good and marketable
title thereto free and clear of any encumbrance, equity, loan, pledge, charge,
claim or security interest and is the sole owner thereof with full right to
transfer the Contract to the Purchaser. With respect to any Contract bearing a
stamp indicating that such Contract has been sold to another party, such other
party's interest in such Contract has been released.
(n) No Defaults. As of the Cut-Off Date, there was no default,
breach, violation or event permitting acceleration existing under the Contract
and no event which, with
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notice and the expiration of any grace or cure period, would constitute such a
default, breach, violation or event permitting acceleration under such Contract
(except payment delinquencies permitted by clause (b) above). The Seller has not
waived any such default, breach, violation or event permitting acceleration
except payment delinquencies permitted by clause (b) above. As of the Closing
Date, the related Manufactured Home is, to the best of the Seller's and the
Originator's knowledge, free of damage and in good repair. No Manufactured Home
has suffered damage that is not covered by a Hazard Insurance Policy, including,
but not limited to, hurricanes, earthquakes, floods, tornadoes, straight-line
winds, sinkholes, mudslides, volcanic eruptions and other natural disasters.
(o) No Liens. As of the Closing Date, there are no liens or claims
which have been filed for work, labor or materials affecting the Manufactured
Home or any related Mortgaged Property securing the Contract which are or may be
liens prior to, or equal or coordinate with, the lien of the Contract.
(p) Equal Installments. Each Contract with a fixed Contract Rate
provides for level monthly payments which, if paid on each Due Date, amortize
the loan over its term.
(q) Enforceability. The Contract contains customary and enforceable
provisions so as to render the rights and remedies of the holder thereof
adequate for the realization against the collateral of the benefits of the
security provided thereby.
(r) One Original. There is only one original executed Contract
(other than the original executed copy retained by the Obligor), which Contract
has been delivered to the Purchaser or its custodian on or before the Closing
Date.
(s) Loan-to-Value Ratio. At the time of their origination all of the
Contracts had Loan-to-Value Ratios not greater than [100%].
(t) Primary Resident. At the time of origination of the Contract the
Obligor was the primary resident of the related Manufactured Home. In the case
of the "Buy For" program, the Obligor has purchased the Manufactured Home for
the primary resident. The "Buy For" program loans represent [___] Contracts and
[__]% of the Cut-off Date Principal Balance of the Contracts as of the Cut-off
Date.
(u) Not Real Estate. With respect to each Contract other than a
Land-and-Home Contract, the related Manufactured Home is not generally
considered or classified as part of the real estate on which it is located under
the laws of the jurisdiction in which it is located.
(v) Notation of Security Interest. With respect to each Contract
other than a Land-and-Home Contract, if the related Manufactured Home is located
in a state in which notation of a security interest on the title document is
required or permitted to perfect such security interest, the title document
shows, or if a new or replacement title document with respect to such
Manufactured Home is being applied for such title document will be issued within
180 days and will show, the Originator or its assignee as the holder of a first
priority security interest in such Manufactured Home; if the related
Manufactured Home is located in a state in which the filing of a financing
statement under the UCC is required to perfect a security interest in
manufactured housing, such filings or recordings have been duly made and show
the Originator or its assignee as secured party. If the related Manufactured
Home secures a Land-and-Home
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Contract, such Manufactured Home is subject to a Mortgage properly filed in the
appropriate public recording office or such Mortgage will be properly filed in
the appropriate public recording office within 180 days, naming the Originator
as mortgagee. In either case, the [Indenture] Trustee has the same rights as the
secured party of record would have (if such secured party were still the owner
of the Contract) against all Persons (including the Seller and any trustee in
bankruptcy of the Seller) claiming an interest in such Manufactured Home.
(w) Secondary Mortgage Market Enhancement Act. The related
Manufactured Home is a "manufactured home" within the meaning of ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Code, Section 5402(6). Each manufactured housing dealer from whom the
Originator purchased such Contract, if any, was then approved by the Originator
in accordance with the requirements of the Secretary of Housing and Urban
Development set forth in 24 CFR Section 201.27. At the origination of each
Contract, the Originator was approved for insurance by the Secretary of Housing
and Urban Development pursuant to Section 2 of the National Housing Act.
(x) Simple Interest and Actuarial Contracts. As of the Cut-off Date,
no more than [__]% of the Contracts are "simple interest" manufactured housing
installment loan agreements or manufactured housing installment sales contracts
and the remaining Contracts are actuarial manufactured housing installment loan
agreements or manufactured housing installment sales contracts.
(y) Land-and-Home Contracts. No Contract other than a Land-and-Home
Contract is secured, or intended to be secured, in whole or in part by the lien
of a mortgage or deed of trust creating a first lien on an estate in fee simple
in the real property.
(z) Financing of Real Property. No Contract other than a
Land-and-Home Contract has financed any amount in respect of real property.
(aa) No Predatory Loans. No Contract is covered by the Home
Ownership and Equity Protection Act of 1994 ("HOEPA") and no Contract is in
violation of any comparable state law. No Contract in the Trust Estate is a
"high cost home," "covered," "high risk home" or "predatory" loan under HOEPA or
any other applicable state, federal or local law (or a similarly classified loan
using different terminology under a law imposing heightened regulatory scrutiny
or additional legal liability for residential mortgage loans having high
interest rates, points and/or fees), as applicable.
(bb) Georgia Loans. No Land-and-Home Contract was originated on or
after October 1, 2002 and before March 7, 2003, which is secured by property
located in the State of Georgia.
Section 3.4 Representations and Warranties Regarding Each Mortgage Loan.
The Seller and the Originator represent and warrant, jointly and
severally, as of the Closing Date with respect to each [Initial and Additional]
Mortgage Loan[, and as of the applicable Subsequent Transfer Date with respect
to each Subsequent Mortgage Loan identified in an updated Mortgage Loan
Schedule]:
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(a) The information pertaining to each Mortgage Loan set forth in
the Mortgage Loan Schedule was true and correct at the date or dates as of which
such information was furnished.
(b) Neither the Seller nor the Originator have assigned any interest
or participation in any Mortgage Loan other than as contemplated in this
Agreement (or if any such interest or participation has been assigned it has
been released or will be released prior to or concurrently with the transfer of
such Mortgage Loan pursuant to this Agreement). Neither the Seller nor the
Originator has acted to (i) modify any Mortgage Note or Mortgage relating to any
Mortgage Loan in any material respect, (ii) satisfy, cancel or subordinate any
Mortgage Loan in whole or in part, (iii) release the related Mortgaged Property
in whole or in part from the lien of any Mortgage Loan or (iv) execute any
instrument effecting the release, cancellation, modification or satisfaction of
any Mortgage Loan.
(c) The Mortgage Note for each Mortgage Loan delivered to the
Purchaser or the [Indenture] Trustee is the original Mortgage Note and is the
only Mortgage Note evidencing the Mortgage Loan that has been manually signed by
the related Obligor. As of the Cut-off Date, there is no default, breach,
violation or event of acceleration existing under any of the Mortgage Loan
Documents transferred to the [Indenture] Trustee or any event that with notice
and expiration of any grace or cure period would result in such a default,
breach, violation or event of acceleration.
(d) As of the [applicable] Cut-off Date, no Monthly Payment on any
Mortgage Loan was more than [59] days delinquent.
[____________________________________].
(e) Each Mortgage Note and Mortgage executed and delivered by an
Obligor in connection with a Mortgage Loan has been duly executed and delivered
by the related Obligor and constitutes a legal, valid and binding obligation of
such Obligor, enforceable against such Obligor in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency or other similar laws affecting the enforcement of
creditors' rights generally and to general principles of equity (whether
considered in a proceeding at law or in equity).
(f) Each Mortgage securing a Mortgage Loan has been duly recorded in
the appropriate governmental recording office in the jurisdiction where the
related Mortgaged Property is located or has been submitted to such recording
office for recordation.
(g) If the Mortgage securing a Mortgage Loan does not name the
Originator or the Seller as the beneficiary or mortgagee, then a valid
assignment, in recordable form, assigning the Mortgage to the Originator or the
Seller, has been duly recorded (or has been sent for recordation) in the
appropriate records depository for the jurisdiction in which the related
Mortgaged Property is located, and the Originator or the Seller has delivered to
the Seller the original of such assignment accompanied by appropriate evidence
that such assignment has been duly recorded (or a copy thereof certified by the
appropriate records depository to be a true and complete copy of the recorded
assignment) or a copy of the original assignment together with a certificate
from an officer of the Originator or the Seller certifying that such assignment
has been
11
sent for recordation in the appropriate records depository, but that such
recorded assignment has not been returned to the Originator or the Seller.
(h) No Mortgage Loan has been modified in any material respect since
the date of its origination and no Mortgage Loan is presently subordinated in
whole or in part to any other lien, nor has the Mortgaged Property securing any
Mortgage Loan been released in whole or in part from the lien of the related
Mortgage.
(i) Each Mortgage contains customary and enforceable provisions
which render the rights and remedies of the holder thereof adequate for the
realization of the holder's rights against the related Mortgaged Property in the
event of a foreclosure or trustee's sale of such property. Upon default by an
Obligor on a Mortgage Loan and foreclosure on, or trustee's sale of, the related
Mortgaged Property pursuant to proper procedures, the holder of the Mortgage
Loan will be able to deliver good and merchantable title to the Mortgaged
Property underlying that Mortgage Loan, except to the extent that the
enforceability of remedies against such Obligor may be subject to applicable
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally, and to general principles of equity (whether considered in a
proceeding at law or in equity).
(j) In connection with the origination of each Mortgage Loan, the
originator complied with all applicable federal, state and local laws and
regulations, including but not limited to those related to consumer credit,
equal credit opportunity, real estate settlement procedures, truth-in-lending
and usury.
(k) Any appraisal of the Mortgaged Property underlying each Mortgage
Loan was made at the time the Mortgage Loan was originated by an appraiser who
met the minimum qualifications of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac for appraisers of
conventional residential mortgage loans.
(l) The assignment of each Mortgage to the [Indenture] Trustee
constitutes a legal, valid and binding assignment of the Mortgage and creates,
or upon recordation will create, a valid first priority security interest in
favor of the [Indenture] Trustee in such Mortgage or vests ownership of such
Mortgage in the [Indenture] Trustee.
(m) The Mortgage securing each Mortgage Loan creates a valid and
enforceable first lien on the related Mortgaged Property subject only to
Permitted Encumbrances. "Permitted Encumbrances" consist of the following in
respect of any Mortgage Loan:
(i) the lien of current real property taxes and assessments
not yet due and payable;
(ii) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of
recording acceptable to prudent mortgage lending institutions
generally and specifically referred to in either the title opinion
or the lender's title insurance policy delivered to the related
originator and referred to or otherwise considered in the appraisal
made for the originator; and
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(iii) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged Property.
(n) There are no mechanic's or other liens against the related
Mortgaged Property which are superior to or equal to the first lien of the
related Mortgage Loan, except such liens that are expressly insured against by a
Title Insurance Policy.
(o) There are no delinquent taxes, governmental assessments or
municipal charges due and owing as to any Mortgaged Property.
(p) Each Mortgaged Property is free of material damage and, to the
best of the Servicer's knowledge, is in good repair. The Servicer is not aware
of any condemnation proceedings with respect to any Mortgaged Property.
(q) All improvements located on a Mortgaged Property that were
considered in determining the appraised value of such Mortgaged Property lie
within the boundary lines of, and comply with building restrictions applicable
to, the Mortgaged Property. There is no violation of applicable zoning laws or
regulations with respect to any Mortgaged Property. No improvements on adjoining
properties encroach upon any Mortgaged Property in any respect so as to affect
adversely the value or marketability of the Mortgaged Property.
(r) Except with respect to Staged Funded Loans, the full principal
amount of each Mortgage Loan has been paid to the related Obligor or according
to the direction of the Obligor. The Obligor has no option under the related
Mortgage to borrow additional funds secured by the related Mortgage from the
applicable Servicer or any other person. The principal balance of each Mortgage
Loan as of the Cut-off Date, as set forth in the Mortgage Loan Schedule, is
correct and is secured solely by the related Mortgage.
(s) Except with respect to any funds held in a temporary buy-down
fund for a buy-down loan, no Mortgage Loan is subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the related
Mortgage Note or Mortgage, or the exercise of any right thereunder, render
either the Mortgage Note or the Mortgage unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense, including
without limitation the defense of usury, and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect thereto.
(t) Pursuant to the terms of each Mortgage, the Mortgaged Property
is insured by an insurer acceptable to ▇▇▇▇▇▇ Mae against loss by fire and such
other risks as are usually insured against by the broad form of extended
coverage hazard insurance policy as is from time to time available. Such
Mortgaged Property also is insured against flood hazards if the Mortgaged
Property is in an area identified by the Secretary of Housing and Urban
Development or the Director of the Federal Emergency Management Agency as
subject to special flood hazards (and if flood insurance is available for real
properties located in the area in which such Mortgaged Property is located). All
such insurance policies (collectively, the "hazard insurance policy") meet the
requirements of the current guidelines of the Federal Insurance Administration,
13
conform to the ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇' Guide and the ▇▇▇▇▇▇ Mae Servicers' Guide,
and collectively constitute a standard policy of insurance for the locale where
the Mortgaged Property is located. The coverage provided by such a hazard
insurance policy is in the amount of the lesser of (i) the full insurable value
of the related Mortgaged Property on a replacement cost basis or (ii) the unpaid
balance of the Mortgage Loan, and in any event must at least be sufficient to
avoid application of any co-insurance clause contained in such hazard insurance
policy. The hazard insurance policy names (and will name) the present owner of
the Mortgaged Property as the insured and contains a standard mortgagee loss
payable clause in favor of the originator (or another initial payee under the
related Mortgage Note) and its successors and assigns, including the Seller, the
Purchaser and its successors and assigns. The Mortgage obligates the mortgagor
thereunder to maintain the hazard insurance policy at the mortgagor's cost and
expense, and on the mortgagor's failure to do so, authorizes the holder of the
Mortgage to obtain and maintain such insurance at such holder's cost and
expense, and to seek reimbursement therefor from the mortgagor. Where required
by state law or regulation, the mortgagor has been given an opportunity to
choose the carrier of the required hazard insurance.
(u) Each Mortgage Loan is secured by a fee simple estate (or, if the
Mortgaged Property is located in Hawaii or Maryland, a leasehold estate) and the
related Mortgaged Property consists of a parcel of real property with a single
family residence or a two- to four-family dwelling erected thereon.
(v) Each Mortgage Loan is covered by either (i) an attorney's
opinion of title and abstract of title the form and substance of which is
acceptable to ▇▇▇▇▇▇ ▇▇▇ or (ii) a title insurance policy or other generally
acceptable form of policy of insurance for the jurisdiction in which the related
Mortgaged Property is located, issued by a title insurer qualified to do
business in the jurisdiction where the related Mortgaged Property is located,
insuring the initial mortgagee (or beneficiary in the case of a deed of trust)
and its successors and assigns (including the [Indenture] Trustee) as to the
first priority status of the lien created by the related Mortgage, subject only
to Permitted Encumbrances (as defined above in paragraph (13)), providing
coverage in the amount of at least 95% of the outstanding principal amount of
the Mortgage Loan and providing coverage against any loss by reason of the
invalidity or unenforceability of the lien resulting from any provisions of the
Mortgage providing for adjustment to the Mortgage Rate and Monthly Payment.
(w) The Mortgage Loan was originated by a savings and loan
association, savings bank, commercial bank, credit union, insurance company, or
similar institution which is supervised and examined by a federal or state
authority, or by a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National Housing Act.
(x) For any Mortgage that constitutes a deed of trust, a trustee,
authorized and duly qualified under applicable law to serve as such, has been
properly designated and currently serves as such trustee and is named in the
Mortgage, and no fees or expenses are or will become payable by the Seller, the
Purchaser or its assignees (including the [Indenture] Trustee) to the trustee
under the deed of trust, except in connection with a trustee's sale after
default by the Obligor.
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(y) [Each Mortgage Loan is a "qualified mortgage" within the meaning
specified for such term in section 860G of the Code and does not contain any
provision requiring action that would render it not such a "qualified
mortgage."]
(z) As of the date hereof, no property securing a Mortgage Loan is
subject to foreclosure, litigation, bankruptcy or insolvency proceedings or any
workout or foreclosure agreement, and, to the best of the Seller's and the
Originator's knowledge, the filing of a bankruptcy or insolvency proceeding that
would result in any Mortgage Loan becoming subject to bankruptcy or insolvency
proceedings is not imminent.
(aa) [If one or more REMIC elections are to be made with respect to
all or part of the Trust, the REMIC Loan-to-Value Ratio of each Mortgage Loan is
125% or less either (i) at the time of its origination or as of the Startup Day
or (ii) if such Mortgage Loan has been modified other than as a result of a
default or reasonably foreseeable default, as of the Startup Day.]
The Mortgage Loan-to-Value Ratio is 100% or less either (i) at the time of
its origination or as of the Startup Day or (ii) if such Mortgage Loan has been
modified other than as a result of a default or reasonably foreseeable default,
as of the Startup Day.
Section 3.5 Representations and Warranties Regarding the Assets in the
Aggregate. The Seller and the Originator each represents and warrants to the
Purchaser and its assignees as of the Closing Date, with respect to the Assets,
[, and on the applicable Subsequent Transfer Date with respect to each
Subsequent Asset] that:
(a) Amounts. The aggregate principal amounts payable by Obligors
under the Assets as of the Cut-off Date equal the Cut-off Date Pool Principal
Balance. The aggregate principal amounts payable by Obligors under the Assets as
of the Cut-off Date equal $______________.
(b) Characteristics of Assets. The Assets have the following
characteristics as of the Cut-Off Date:
(i) the Obligors on not more than _____% of the Assets by
Cut-off Date Pool Principal Balance are located in any one state,
the Obligors on not more than ____% of the Assets by Cut-off Date
Pool Principal Balance are located in an area with the same zip code
and the Obligors on not more than ___% of the Assets by Cut-off Date
Pool Principal Balance are located in California in an area with the
same zip code;
(ii) no Asset has a remaining term to maturity of fewer than
__ months or more than ___ months;
(iii) the final scheduled payment date on the Asset with the
latest maturity is in [_____________, 20__];
(iv) [___]% of the Assets by Cut-off Date Pool Principal
Balance is attributable to loans for purchases of new Manufactured
Homes and
15
approximately [__]% is attributable to loans for purchases of used
Manufactured Homes;
(v) [___]% of the Assets by Cut-Off Date Pool Principal
Balance are attributable to Land-and-Home Contracts;
(vi) the Weighted Average Net Asset Rate of the Assets as of
the Cut-Off Date is at least [___]%per annum;
(vii) [___]% of the Assets by Cut-Off Date Pool Principal
Balance is attributable to loans for the purchase of multi-section
Manufactured Homes;
(viii) the weighted average (by Cut-Off Date Pool Principal
Balance) loan to value ratio of the Assets is not more than [___]%;
(ix) no Asset was originated before [____, __];
(x) [___]% of the Assets by Cut-Off Date Pool Principal
Balance are secured by Manufactured Homes located in a mobile home
park;
(xi) the weighted average FICO score of the obligors
determined in connection with the origination of the Assets, and
weighted based on Cut-off Date Principal Balance, is not less than
_____;
(xii) the number of refinancings relating to repossessions is
not greater than [___]% and
(xiii) no more than [___]% of the Assets will be secured by
Manufactured Homes located in the State of Texas.
(c) Electronic File. The Electronic File made available by the
Seller was complete and accurate as of its date and includes a description of
the same Assets that are described in the List of Contracts or Mortgage Loan
Schedule.
(d) Marking Records. By the Closing Date, the Seller has caused the
portions of the Electronic Ledger relating to the Assets to be clearly and
unambiguously marked to indicate that such Assets constitute part of the Trust
Estate and are held by the Custodian on behalf of the [Indenture] Trustee for
the benefit of the [Noteholders] [Certificateholders] in accordance with the
terms of the [Indenture] [Pooling and Servicing Agreement].
(e) No Adverse Selection. No adverse selection procedures have been
employed in selecting the Assets.
Section 3.6 Representations and Warranties Regarding the Asset Files.
The Seller and the Originator each represents and warrants to the
Purchaser, as of the Closing Date with respect to the Assets, that:
16
(a) Bulk Transfer Laws. The transfer, assignment and conveyance of
the Assets and the Asset Files by the Seller pursuant to this Agreement is not
subject to the bulk transfer or any similar statutory provisions in effect in
any applicable jurisdiction.
With respect to the representations and warranties set forth in this
Section that are made to the best of the each of the Seller's and Originator's
knowledge or as to which the Seller and the Originator have no knowledge, if it
is discovered by the Purchaser, the Seller, the Originator, the Servicer, the
Issuer or the [Indenture] Trustee that the substance of any such representation
or warranty is inaccurate and such inaccuracy materially and adversely affects
the value of the related Asset or the interest of the Trust Estate therein,
notwithstanding the Seller's or Originator's lack of knowledge with respect to
the substance of such representation and warranty being inaccurate at the time
the representation or warranty was made, such inaccuracy shall be deemed a
breach of the applicable representation or warranty and either the Seller or the
Originator, as applicable, shall cure such breach, repurchase the related Asset
at the Repurchase Price or substitute an Eligible Substitute Asset therefor
pursuant to Section 3.6(b).
Section 3.7 Remedies for Breach. (a) Upon discovery by the Originator or
Seller, as applicable, or upon notice from the Purchaser, [the Issuer, the Owner
Trustee,] the Servicer, the Originator, the Seller or the [Indenture] Trustee,
as applicable, of any materially defective document in, or that a document was
not transferred by the Seller (as listed on the [Indenture] Trustee's
preliminary exception report) as part of any File, or of a breach of any
representation or warranty set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.5 or 3.6
of this Agreement which materially and adversely affects the interests of the
Noteholders or the Certificateholders, as applicable, in any Asset, the
Originator or Seller, as applicable, shall, within 60 days of its discovery or
its receipt of notice of such breach, deliver such missing document or cure such
defect or breach in all material respects or, in the event the Originator or
Seller, as applicable, cannot deliver such missing document or cannot cure such
defect or breach, the Originator or Seller, as applicable, shall, within ninety
(90) days of its discovery or receipt of notice, either (i) repurchase the
affected Asset at the Repurchase Price or (ii) pursuant to the provisions of the
[Indenture] [Pooling and Servicing Agreement], cause the removal of such Asset
from the Trust Estate and substitute one or more Eligible Substitute Assets. The
Originator or Seller, as applicable, shall amend the Asset Schedule to reflect
the withdrawal of such Asset from the terms of this Agreement and the
[Indenture] [Pooling and Servicing Agreement]. Notwithstanding the foregoing,
the failure of an Asset File to include evidence of title to a Manufactured Home
described in Section _______ above shall not constitute a breach until the
passage of the 180-day period referred to in Section ______, without the
delivery of the required documents. The Originator or Seller, as applicable,
shall deliver to the Purchaser such amended Asset Schedule and shall deliver
such other documents as are required by this Agreement within five (5) days of
any such amendment. Any repurchase pursuant to this Section 3.7 shall be
accomplished by transfer to an account designated by the Purchaser of the amount
of the Repurchase Price in accordance with the Servicing Agreement [Pooling and
Servicing Agreement]. Any repurchase required by this Section 3.7 shall be made
in a manner consistent with the Servicing Agreement [Pooling and Servicing
Agreement]. The Repurchase Price for any such Asset repurchased by the
Originator or the Seller, as applicable, shall be paid by the Originator or the
Seller, as applicable, to the Servicer for deposit in the Collection Account
maintained by it pursuant to the [Servicing Agreement] [Pooling and Servicing
Agreement].
17
(b) The Originator, at its election, may substitute one or more
Eligible Substitute Assets for any Assets that it is obligated to repurchase in
accordance with this Section 3.6 (such Assets being referred to as the "Replaced
Assets") upon satisfaction of the following conditions:
(i) the Originator shall have conveyed to the [Indenture]
Trustee the Assets to be substituted for the Replaced Assets and the
Asset Files related to such Assets and the Originator shall have
marked the Electronic Ledger indicating that such Assets constitute
part of the Trust Estate;
(ii) the Assets to be substituted for the Replaced Assets are
Eligible Substitute Assets and the Originator delivers an Officers'
Certificate, substantially in the form of Exhibit A hereto, to the
[Indenture] Trustee certifying that such Assets are Eligible
Substitute Assets;
(iii) the Seller shall have delivered to the [Indenture]
Trustee evidence of filing of a UCC-1 financing statement executed
by the Seller as debtor, naming the [Indenture] Trustee as secured
party filed in the State of Delaware, listing such Assets as
collateral, or shall have delivered to the Depositor or the
[Indenture] Trustee, as the case may be, an amended Asset Schedule;
(iv) if the aggregate Principal Balance of such Replaced
Assets is greater than the aggregate Principal Balance of the Assets
being substituted, the Originator shall have delivered to the
Servicer for deposit in the Collection Account the amount of such
excess and shall have included in the Officers' Certificate required
by clause (ii) above a certification that such deposit has been
made.
Such substitution shall be effected prior to the first Determination
Date that occurs more than 90 days after the Originator becomes aware, or
receives written notice from the [Indenture] Trustee, of the breach referred to
in this Section 3.7. Promptly after any substitution of an Asset, the Originator
shall give written notice of such substitution to each Rating Agency.
(c) It is understood and agreed that the obligations of the
Originator and the Seller set forth in this Section 3.7 to cure or repurchase a
defective Asset shall, except to the extent provided in last sentence of this
Section 3.7(c) and in Section 5.1 of this Agreement, constitute the sole
remedies of the Purchaser, the Issuer, the Certificateholders [(or the Owner
Trustee on behalf of the Certificateholders)] and the Noteholders (or the
[Indenture] Trustee, or the Servicer, acting pursuant to the [Servicing
Agreement] [Pooling and Servicing Agreement], on behalf of the Noteholders
[Certificateholders]) against the Originator or the Seller, as applicable,
respecting a missing document or a breach of the representations and warranties
contained in Sections 3.1, 3.2, 3.3, 3.4, 3.5 or 3.6 of this Agreement. It is
understood and agreed that the representations and warranties set forth in
Sections 3.1, 3.2, 3.3, 3.4, 3.5 or 3.6 of this Agreement shall survive delivery
of the respective Asset Files to the Purchaser. In addition, the Originator
shall defend and indemnify the Purchaser, [the Issuer, the Owner Trustee], the
[Indenture] Trustee, its officers, directors, employees and agents, and the
Noteholders and the Certificateholders against all costs, expenses, losses,
damages, claims and liabilities, including reasonable fees and expenses of
counsel, arising out of any claims which may be asserted against
18
or incurred by any of them as a result of any third-party action arising out of
the breach of the representations and warranties set forth in Sections 3.3 (i),
3.3 (bb) and 3.3 (cc) of this Agreement.
ARTICLE IV
SELLER'S COVENANTS
Section 4.1 Covenants of the Seller. The Seller hereby covenants that
except for the transfer hereunder, the Seller will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to exist
any Lien on any Asset, or any interest therein; the Seller will notify the
[Indenture] Trustee, as assignee of the Purchaser, of the existence of any Lien
on any Asset immediately upon discovery thereof; and the Seller will defend the
right, title and interest of the [Issuer] [Trustee], as assignee of the
Purchaser, in, to and under the Assets, against all claims of third parties
claiming through or under the Seller.
ARTICLE V
INDEMNIFICATION BY THE ORIGINATOR
Section 5.1 Indemnification. The Originator agrees to indemnify and to
hold the Purchaser harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, fees and expenses that the Purchaser may sustain in any way (i) related
to the failure of the Seller or the Originator to perform its duties in
compliance with the terms of this Agreement or (ii) arising from a breach by the
Seller or the Originator of its representations and warranties in Article III of
this Agreement. The Originator shall immediately notify the Purchaser if a claim
is made by a third party with respect to this Agreement, and the Originator
shall assume the defense of any such claim and pay all expenses in connection
therewith, including reasonable counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against the Purchaser in
respect of such claim.
ARTICLE VI
TERMINATION
Section 6.1 Termination. The respective obligations and responsibilities
of the Seller, the Originator and the Purchaser created hereby shall terminate,
except for the Originator's indemnity obligations as provided herein, upon the
termination of the [Issuer pursuant to the terms of the Trust Agreement] [Trust
pursuant to the terms of the Pooling and Servicing Agreement].
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1 Amendment. This Agreement may be amended from time to time by
the Seller, the Originator and the Purchaser by written agreement signed by the
Seller, the Originator and the Purchaser, which consent shall not be
unreasonably withheld.
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Section 7.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws, without regard to the conflicts of laws provisions
thereof (except Section 5-1401 of the New York General Obligations Law).
Section 7.3 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given when delivered
addressed as follows:
(i) if to the Seller:
[Origen Securitization Company, LLC]
[Origen Servicing, Inc.]
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Hunton & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or, such other address as may hereafter be furnished to the Purchaser in writing
by the Seller.
(ii) if to the Purchaser:
Origen Residential Securities, Inc.
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Hunton & ▇▇▇▇▇▇▇▇ LLP
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▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or such other address as may hereafter be furnished to the Seller in writing by
the Purchaser.
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(iii) if to the Originator:
Origen Financial L.L.C.
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Hunton & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or such other address as may hereafter be furnished to the Seller in writing by
the Purchaser.
(iv) if to the Owner Trustee:
_______________________________
_______________________________
_______________________________
_______________________________
(v) [if to the Issuer:
Origen Manufactured Housing Contract Trust
Series 20__-_
c/o Origen Servicing, Inc.
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▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇]
(vi) if to the [Indenture] Trustee:
_______________________________
_______________________________
_______________________________
_______________________________
Section 7.4 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be held
invalid for any reason whatsoever, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 7.5 Relationship of Parties. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture between the parties
hereto, and the services of the Seller and the Originator shall be rendered as
independent contractors and not as agents for the Purchaser.
Section 7.6 Counterparts. This Agreement may be executed in two or more
counterparts and by the different parties hereto on separate counterparts, each
of which, when so
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executed, shall be deemed to be an original and such counterparts together shall
constitute one and the same agreement.
Section 7.7 Further Agreements. The Purchaser, the Originator and the
Seller each agrees to execute and deliver to the other such additional
documents, instruments or agreements as may be necessary or appropriate to
effectuate the purposes of this Agreement. Each of the Purchaser, the Originator
and the Seller agrees to use its best reasonable efforts to take all actions
necessary to be taken by it to cause [(i) the Class A-1, Class A-2, Class A-3
and Class A-4 Notes to be issued and rated "Aaa" by ▇▇▇▇▇'▇ and "AAA" by
Standard & Poor's, (ii) the Class M-1 Notes to be issued and rated "Aa2" by
▇▇▇▇▇'▇ and "AA" by Standard & Poor's, and (iii) the Class M-2 Notes to be
issued and rated "A2" by ▇▇▇▇▇'▇ and "A" by Standard & Poor's,] with the Notes
to be offered pursuant to the Purchaser's shelf registration statement, and each
party will cooperate with the other in connection therewith.
Section 7.8 Intention of the Parties. The Seller and the Purchaser agree
that it is their intention that the sale of the Assets to the Purchaser[, and
the Purchaser's sale of the Assets to the Issuer pursuant to the Trust Agreement
shall be treated for federal, state and local tax purposes as the retention by
Origen REIT of the ownership of the Assets (with the issuance of the Notes
treated for federal, state and local tax purposes as the financing of the Assets
by the Seller's consolidated group of companies by the issuance of indebtedness
secured by the Assets)] [a sale of the Assets] and mutually covenant to report
this and all related transactions for all federal, stated and local tax
reporting purposes in a manner consistent with that intent.
Section 7.9 Successors and Assigns; Assignment of Agreement. This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Originator, the Purchaser and their respective successors and
assigns. The obligations of the Seller and the Originator under this Agreement
cannot be assigned or delegated to a third party without the consent of the
Purchaser, which consent shall be at the Purchaser's sole discretion. The
parties hereto acknowledge that the Purchaser is acquiring the Assets for the
purpose of selling them to the Issuer who will in turn pledge the Assets to the
[Indenture] Trustee for the benefit of the Noteholders and the
Certificateholders. As an inducement to the Purchaser to purchase the Assets,
the Seller and the Originator acknowledge and consent to (i) the assignment by
the Purchaser to the Issuer of all of the Purchaser's rights against the Seller
and the Originator pursuant to this Agreement and to the enforcement or exercise
of any right or remedy against the Seller and the Originator pursuant to this
Agreement as assigned by the Purchaser and (ii) the assignment by the Issuer to
the [Indenture] Trustee of such rights and to the enforcement or exercise of any
right or remedy by the [Indenture] Trustee, or the Servicer acting pursuant to
the Servicing Agreement [Pooling and Servicing Agreement], against the Seller
and the Originator pursuant to this Agreement [as assigned by the Issuer]. Such
enforcement of a right or remedy by the Issuer, the Owner Trustee, the Servicer
or the [Indenture] Trustee, as applicable, shall have the same force and effect
as if the right or remedy had been enforced or exercised by the Purchaser
directly.
Section 7.10 Survival. The representations and warranties made herein by
the Seller and the Originator and the provisions of Article V hereof shall
survive the purchase of the Assets hereunder.
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Section 7.11 Third Party Beneficiary. The [Indenture] Trustee shall be
deemed a third-party beneficiary of this Agreement to the same extent as if it
were a party hereto, and shall have the right to enforce the provisions of this
Agreement.
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Exhibit 99.5
IN WITNESS WHEREOF, the Seller, the Originator and the Purchaser
have caused their names to be signed to this Asset Purchase Agreement by their
respective officers thereunto duly authorized as of the day and year first above
written.
ORIGEN RESIDENTIAL SECURITIES, INC.
as Purchaser
By:__________________________________
Name:
Title:
[ORIGEN SECURITIZATION COMPANY, LLC ]
[ORIGEN SERVICING, INC.]
as Seller
By:__________________________________
Name:
Title:
ORIGEN FINANCIAL L.L.C.
as Originator
By:__________________________________
Name:
Title:
SCHEDULE I-A
LIST OF CONTRACTS
1-A-1
SCHEDULE I-B
MORTGAGE LOAN SCHEDULE
1-B-1
EXHIBIT A
FORM OF CERTIFICATE REGARDING SUBSTITUTED ASSETS
ORIGEN FINANCIAL L.L.C.
CERTIFICATE REGARDING SUBSTITUTED ASSETS
The undersigned certify that they are [title] and [title], of Origen
Financial L.L.C., a limited liability company formed under the laws of Delaware
("the Company"), and that as such they are duly authorized to execute and
deliver this certificate on behalf of the Company pursuant to Section 3.7(b) of
the Asset Purchase Agreement, dated _____________, 20__ (the "Agreement"), among
[Origen Securitization Company, LLC] [Origen Servicing, Inc.] (the "Seller"),
Origen Financial L.L.C. (the "Originator") and Origen Residential Securities,
Inc. (all capitalized terms used herein without definition having the respective
meanings specified in the [Indenture] [Pooling and Servicing Agreement], dated
as of _____________, 20__, between ________________________ (the "[Indenture]
Trustee")), and further certify that:
1. The Asset and Asset File for each such Eligible Substitute
Asset [are being held by the Company, as Servicer] have been delivered
to [the [Indenture] Trustee or its Custodian] [___________, the
successor Servicer].
2. The Assets on the attached schedule are to be substituted
on the date hereof pursuant to Section 3.7(b) of the Agreement and each
such Asset is an Eligible Substitute Asset.
3. The UCC-1 financing statements in respect of the Assets to
be substituted, in the form required by Section 3.7(b)(iii) of the
Agreement, have been filed with the appropriate offices.
4. The Company shall have delivered to the [Indenture]
Trustee, or its Custodian, the related [Contract Files,] Land-and-Home
Contract Files and Trustee Mortgage Loan Files.
5. There has been deposited in the Collection Account the
amounts listed on the schedule attached hereto as the amount by which
the Principal Balance of each Replaced Asset exceeds the Principal
Balance of each Asset being substituted therefor.
IN WITNESS WHEREOF, we have affixed hereunto our signatures
this____day of ______.
ORIGEN FINANCIAL L.L.C.
By ____________________________________
[Name]
[Title]
A-1