EXECUTION VERSION
EXHIBIT 10.10
SALE AND SERVICING AGREEMENT
Dated as of January 23, 2003
among
OAK LEAF HOLDINGS, LLC,
as Depositor
OMI NOTE TRUST 2003-A,
as Issuer
GINKGO CORPORATION,
as Transferor
OAKWOOD ACCEPTANCE CORPORATION, LLC,
as Seller and Subservicer
OAKWOOD SERVICING HOLDINGS CO., LLC
as Servicer
and
JPMORGAN CHASE BANK,
as Backup Servicer, Indenture Trustee and Custodian
OMI NOTE TRUST 2003-A
ASSET BACKED NOTES, SERIES 2003-A
SALE AND SERVICING AGREEMENT dated as of January 23, 2003 by and among
OMI NOTE TRUST 2003-A, a Delaware statutory trust (the "Issuer"), OAK LEAF
HOLDINGS, LLC, a Delaware limited liability company (the "Depositor"), GINKGO
CORPORATION, a Delaware corporation, in its capacity as Transferor (the
"Transferor"), OAKWOOD ACCEPTANCE CORPORATION, LLC, a Delaware limited liability
company, in its capacities as the Seller and the Subservicer (respectively,
together with its permitted successors and assigns in such capacities, the
"Seller" or the "Subservicer"), OAKWOOD SERVICING HOLDINGS CO., LLC, a Nevada
limited liability company, in its capacity as the Servicer (together with its
permitted successors and assigns in such capacity, the "Servicer"), and JPMORGAN
CHASE BANK, a New York banking corporation, in its capacity as backup servicer
(together with its successors and assigns in such capacity, the "Backup
Servicer"), in its capacity as the indenture trustee on behalf of the Owners of
the Notes (together with its successors and assigns in such capacity, the
"Indenture Trustee") and in its capacity as Custodian under the Custodial
Agreement (together with its successors and assigns in such capacity, the
"Custodian").
WHEREAS, the Seller is engaged in the business of originating,
purchasing and servicing contracts and mortgage loans secured by manufactured
homes and related real estate;
WHEREAS, the Seller desires to sell to the Transferor and the
Transferor desires to purchase from the Seller, the Transferor desires to sell
to the Depositor and the Depositor desires to purchase from the Transferor, and
the Depositor desires to sell to the Issuer and the Issuer desires to purchase
from the Depositor certain contracts and mortgage loans and certain monies
received with respect thereto after the applicable Cut-Off Date or Additional
Cut-Off Date;
WHEREAS, the Servicer has agreed to service the Receivables, in
accordance with the terms of this Agreement; and
WHEREAS, the Subservicer has agreed to fulfill the obligations of the
Servicer under this Agreement pursuant to the Subservicing Agreement; and
WHEREAS, JPMorgan Chase Bank is willing to serve as Backup Servicer
hereunder, Custodian under the Custodial Agreement and Indenture Trustee under
the Indenture.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Issuer, the Depositor, the Transferor, the
Seller, the Servicer, the Subservicer, the Backup Servicer, the Custodian, and
the Indenture Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
Section 1.1 Definitions. For all purposes of this Agreement, the
following terms shall have the meanings set forth below, unless the context
clearly indicates otherwise:
"Account": Any account established in accordance with Section 3.1
hereof.
"Accrual Period": With respect to any Payment Date, the period
commencing on the immediately preceding Payment Date (or the Closing Date in the
case of the first Payment Date) to and including the day prior to such Payment
Date.
"Additional Cut-Off Date": With respect to any Addition Date, such
Addition Date, such date not to be later than one Business Day prior to the
Final Addition Date.
"Addition Date": Any date on which Additional Receivables are conveyed
to the Issuer pursuant to Section 2.5, such date not to be later than the Final
Addition Date.
"Additional Receivable": Each Receivable which pursuant to Section 2.5
is included as an Additional Receivable.
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Aggregate Outstanding Loan Balance": With respect to any group of
Receivables as of any date, the sum of the outstanding Loan Balances of all such
Receivables as of such date.
"Agreement": This Sale and Servicing Agreement, as it may be amended
from time to time, including the Exhibits and Schedules hereto.
"Amended and Restated Schedule of Receivables": As defined in Section
2.5.
"Appraised Value": The appraised value of any Mortgaged Property based
upon the appraisal made at the time of the origination of the related
Receivable.
"Assignment Event": OHC's long term unsecured senior debt rating is
below "Baa3" by Moody's or "BBB-" by Standard & Poor's or is withdrawn by
Moody's or Standard & Poor's.
"Assignment of Mortgage": With respect to any Mortgage Loan, an
assignment, notice of transfer or equivalent instrument, in blank, with
recording information left blank and otherwise in recordable form, sufficient,
at the time such instrument is created, under the laws of the jurisdiction in
which the related Mortgaged Property is located to reflect the transfer of the
related Mortgage to the Indenture Trustee, which assignment, notice of transfer
or equivalent instrument may be in the form of one or more blanket assignments
covering the Receivables secured by Mortgaged Properties located in the same
jurisdiction.
"Authorized Officer": With respect to any Person, any officer of such
Person who is authorized to act for such Person in matters relating to this
Agreement, and whose action is binding upon, such Person; with respect to the
Depositor or the Servicer, initially including those individuals whose names
appear on the lists of Authorized Officers delivered on the Closing Date; with
respect to the Indenture Trustee or Custodian, any officer assigned to the
Corporate Trust Division (or any successor thereto), including any Vice
President, Assistant Vice President,
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Trust Officer, any Assistant Secretary, any trust officer or any other officer
of the Indenture Trustee customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement.
"Available Funds": As to any Payment Date, the sum of all amounts
described in clauses (i) through (viii) inclusive, of Section 4.2(b) received by
the Servicer (including any amounts paid by the Servicer and the Seller and
excluding any amounts not required to be deposited in the Note Account pursuant
to Section 4.2(b) or withdrawn by the Indenture Trustee or the Servicer pursuant
to Sections 4.3 (b), (c), (d), (e) or (f) in respect of the Receivables) during
the related Collection Period or, in the case of Delinquency Advances or
payments of Loan Purchase Prices, on or prior to the close of business on the
Business Day preceding such Payment Date, and deposited into the Note Account.
No amount included in this definition by virtue of being described by any
component of the definition thereof shall be included twice by virtue of also
being described by any other component or otherwise.
"Backup Servicer": JPMorgan Chase Bank, a New York banking corporation,
and any successor hereunder.
"Backup Servicing Fee": With respect to any Payment Date, the greater
of (i) the product of (x) one-twelfth of 0.0275% and (y) the Aggregate
Outstanding Loan Balance of all Receivables held by the Issuer as of the first
day of the preceding Collection Period, and (ii) $2,750 for each Payment Date;
provided, however, that if the Backup Servicer becomes the successor servicer,
such fee shall no longer be paid.
"Bankruptcy Court": The bankruptcy court having jurisdiction over the
bankruptcy cases of OHC and OAC.
"BIF": The Bank Insurance Fund, as from time to time constituted,
created under the Financial Institutions Reform, Recovery and Enhancement Act of
1989, or, if at any time after the execution of this Agreement the Bank
Insurance Fund is not existing and performing duties now assigned to it, the
body performing such duties on such date.
"Borrowing Base": On any day, the sum of (i) the product of (x) the
Borrowing Base Percentage and (y) the Aggregate Outstanding Loan Balance of
Eligible Receivables as of the close of business on the preceding Business Day
minus the Excluded Receivables Balance as of the close of business on the
preceding Business Day plus (ii) the amount, if any, on deposit in the Note
Account as of the close of business on preceding Business Day.
"Borrowing Base Percentage": On any day, the lower of (i) the Weighted
Average Percentage and (ii) (x) 100% minus (y) the higher of the percentage
credit enhancements required by Standard & Poor's and Moody's to achieve ratings
of AA and Aa2, respectively, from such Rating Agencies with respect to a
securitization by the Seller or its Affiliates of Eligible Receivables similar
to those included in the Trust Estate. Such percentage credit enhancement shall
be evidenced by the credit enhancement required with respect to the most recent
such securitization or pursuant to special request of the Agent or the Servicer
to such Rating Agencies. As used herein, "Weighted Average Percentage" means, on
any day 78% times a fraction the numerator of which is the Aggregate Outstanding
Loan Balance of Eligible
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Receivables transferred to the Issuer and the denominator of which is the
Aggregate Outstanding Loan Balance of Eligible Receivables.
"Borrowing Base Deficiency": On any date, the excess, if any, of the
sum of the Class A Note Principal Balance as of such date plus the amount of
interest accrued on the Notes as of such date over the Borrowing Base as of such
date.
"Business Day": Any day other than (i) a Saturday or a Sunday or (ii) a
day on which commercial banking institutions in the states of Delaware, New
York, North Carolina or the state in which the Corporate Trust Office is located
are authorized or obligated by law or executive to be closed.
"Civil Relief Act": The Soldiers' and Sailors' Civil Relief Act of
1940, as amended.
"Class A Carry-Forward Amount": As to any Payment Date, the sum of (i)
the amount, if any, by which (x) the Class A Current Interest for the
immediately preceding Payment Date exceeded (y) the amount of the actual
distribution made to the Owners of the Class A Notes on such immediately
preceding Payment Date pursuant to Section 3.2(iii) hereof plus (ii) 30 days'
interest on such excess at the Base Rate (as defined and calculated in the Note
Purchase Agreement) plus 1.0% per annum to the extent permitted by law.
"Class A Current Interest": With respect to any Payment Date, the Class
A Note Monthly Interest with respect to the related Accrual Period plus any Fees
then due and payable to the holders of the Class A Notes on such date plus the
related Class A Carry-Forward Amount.
"Class A Note Agent": Credit Suisse First Boston, New York Branch, in
its capacity as agent for the purchasers parties to the Note Purchase Agreement
and its successors and assigns in such capacity.
"Class A Note Monthly Interest": The "Note Monthly Interest" as defined
in the Note Purchase Agreement.
"Class A Note Principal Balance": As of any time of determination, the
Original Class A Note Principal Balance plus the aggregate principal amount of
all additional Borrowings pursuant to Section 10.1 of the Indenture less the
aggregate of all amounts actually distributed to the holders of the Class A
Notes on account of principal pursuant to Section 3.2 or 3.8 prior to such date.
"Closing Date": January 23, 2003.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to each Payment Date, the preceding
calendar month, provided that the Collection Period with respect to the initial
Payment Date shall commence on January 22, 2003 and end on January 31, 2003.
"Collections": with respect to any Receivable, all cash collections and
other cash proceeds of such Receivable, including, without limitation, all
Finance Charges, rebates of
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insurance premiums and property taxes, insurance proceeds (except to the extent
applied in accordance with the Seller's normal procedures to repair the property
securing such Receivable), if any, and any cash proceeds of Related Security
with respect to such Receivable, excluding, however, funds received with respect
to such Receivable which by the terms of such Receivable or by applicable law
are required to be escrowed by the Seller for the payment of real estate or
other similar taxes or for the payment of insurance premiums on insurance
contracts insuring property securing such Receivable.
"Contract": Each retail installment sales contract and security
agreement or installment loan agreement and security agreement that has been
executed by an Obligor and pursuant to which such Obligor (i) purchased the
Manufactured Home described therein, (ii) agreed to pay the deferred purchase
price or amount borrowed, together with Finance Charges, as therein provided in
connection with such purchase or loan, (iii) granted a security interest in such
Manufactured Home to the originator of such contract and (iv) undertook to
perform certain other obligations as specified in such contract or loan
agreement.
"Contract Documents": With respect to each Contract:
(a) the original Contract;
(b) either (1) the original title document for the
related Manufactured Home, a duplicate certified by the appropriate governmental
authority that issued the original thereof or, if such original is not yet
available, a copy of the application filed with the appropriate governmental
authority pursuant to which the original title document will issue (which copy
may be on microfilm or optical disk or other media maintained by the Servicer in
its records separate from the other related Contract Documents), or (2) if the
laws of the jurisdiction in which the related Manufactured Home is located do
not provide for the issuance of title documents for manufactured housing units,
other evidence of ownership of the related Manufactured Home that is customarily
relied upon in such jurisdiction as evidence of title to a manufactured housing
unit;
(c) evidence of one or more of the following types of
perfection of the security interest in the related Manufactured Home granted by
such Contract (or, if such evidence is not yet available, a copy of the
application or other filing used to obtain such security interest (which copy
may be on microfilm or optical disk or other media maintained by the Servicer in
its records separate from the other related Contract Documents)), as appropriate
in the applicable jurisdiction: (1) notation of such security interest on the
title document, (2) a financing statement meeting the requirements of the UCC,
with evidence of recording indicated thereon, (3) a fixture filing in accordance
with the UCC, with evidence of filing indicated thereon, or (4) such other
evidence of perfection of a security interest in a manufactured housing unit as
is customarily relied upon in the jurisdiction in which the related Manufactured
Home is located;
(d) an original assignment of the Contract from the
initial named payee thereunder to the Seller (unless the Seller is the initial
named payee for such Contract);
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(e) originals of any assumption agreements relating to
such Contract, together with originals of any surety or guaranty agreement
relating to such Contract or to any such assumption agreement, payable to the
order of the Indenture Trustee, or, if not so payable, endorsed to the order of,
or assigned to, the Indenture Trustee by the holder/payee thereunder without
recourse;
(f) originals of any extension, modification or waiver
agreement(s) relating to such Contract; and
(g) proof of maintenance of a Standard Hazard Insurance
Policy for the related Manufactured Home.
"Contract File": With respect to any Contract, (i) on the Closing Date
or related Addition Date, as the case may be, until the 120th day thereafter, a
file containing the items set forth in clause (a) of the definition of Contract
Documents and (ii) from and after the 120th day after the Closing Date or such
Addition Date, as the case may be, a file containing all of the related Contract
Documents.
"Contract Loan-to-Value Ratio": (i) As to each Contract with respect to
which a lien on land is required for underwriting purposes, the ratio, expressed
as a percentage, of the principal amount of such Contract to the sum of the
purchase price of the home (including taxes, insurance and any land
improvements), the tax value or appraised value of the land and the amount of
any prepaid Finance Charges or closing costs that are financed; and (ii) as to
each other Contract, the ratio, expressed as a percentage, of the principal
amount of such Contract to the purchase price of the home (including taxes,
insurance and any land improvements) and the amount of any prepaid Finance
Charges or closing costs that are financed.
"Contract Rate": With respect to a Contract, as of any date of
determination, the annual interest rate required to be paid by an Obligor under
the terms of such Contract.
"Corporate Trust Office": The meaning specified in the Indenture.
"Credit and Collection Policy": the Seller's credit and collection
policy or policies and practices relating to manufactured housing and mobile
home installment sales contracts, existing on the date hereof and referred to in
Schedule II attached hereto, as amended, supplemented or otherwise modified and
in effect from time to time in compliance with the terms of the Note Purchase
Agreement.
"Custodial Agreement": that certain Custodial Agreement dated as of
January 23, 2003 by and among the Indenture Trustee, the Class A Note Agent, the
other Persons from time to time parties thereto, the Issuer, the Custodian and
Oakwood Acceptance Corporation, as the same may be amended, supplemented or
otherwise modified from time to time.
"Custodian": As defined in recitals.
"Cut-Off Date": January 22, 2003.
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"Cut-off Date Principal Balance": As to any Receivable, the original
principal amount of such Receivable (minus any amount added to the principal
balance related to any forceplaced insurance), minus all payments applied to
reduce such original principal amount on or before the Cut-off Date or
Additional Cut-Off Date, as the case may be.
"Defaulted Contract": A Contract (i) as to which any related Monthly
Payment has been Delinquent and remains Delinquent at the close of business on
the third Due Date after the Due Date therefor, (ii) as to which the Servicer is
notified that the related Obligor is in bankruptcy proceedings (except those
Contracts as to which the Obligors are current at any time of determination on
all payments during the related bankruptcy proceedings), or (iii) where the
related Manufactured Home has been repossessed.
"Defaulted Mortgage Loan": A Mortgage Loan (i) as to which any related
Monthly Payment has been Delinquent and remains Delinquent at the close of
business on the third Due Date after the Due Date therefor, (ii) as to which the
Servicer is notified that the related Obligor is in bankrupt proceedings (except
those Mortgage Loans as to which the Obligors are current at any time of
determination on all payments during the related bankruptcy proceedings), or
(iii) where the related Mortgaged Property has been or is in the process of
being foreclosed.
"Defaulted Receivable": A Defaulted Contract or a Defaulted Mortgage
Loan.
"Defective Receivable": Any Receivable subject to repurchase by the
Seller pursuant to Section 2.1 or 2.2.
"Delinquency Advance": As defined in Section 4.20 hereof.
"Delinquent": A Receivable is "Delinquent" if any payment due thereon
is not made by the Obligor by the close of business on the related Due Date. A
Receivable is "30 days Delinquent" if such payment has not been received by the
close of business on the corresponding day of the month immediately succeeding
the month in which such payment was due, or, if there is no such corresponding
day (e.g., as when a 30-day month follows a 31-day month in which a payment was
due on the 31st day of such month) then on the last day of such immediately
succeeding month. Similarly for "60 days Delinquent," "90 days Delinquent" and
so on.
"Depositor": Oak Leaf Holdings, LLC, a Delaware limited liability
company, or any permitted successor or assign.
"Determination Date": With respect to any Payment Date, the last day of
the preceding calendar month.
"Documented Receivables": As of any date of determination, Receivables
with respect to which the Seller has delivered the Required Documentation to the
Custodian.
"Due Date": With respect to any Receivable, the day of the month on
which the Monthly Payment is due from the Obligor exclusive of any days of
grace.
"Eligible Account": Either (i) an account maintained with a federal or
state-chartered depository institution or trust company that complies with the
definition of "eligible institution,"
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as described below; or (ii) a segregated trust account maintained with the
corporate trust department of a federal depository institution or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of Federal Regulation
Section 9.10(b), which, in either case, has corporate trust powers, acting in
its fiduciary capacity. As used herein, "eligible institution" means an
institution whose commercial paper, short-term debt obligations, or other
short-term deposits are rated at least 'A-1' by Standard & Poor's and "P-1" by
Moody's or as otherwise acceptable to the Rating Agencies.
"Eligible Investments": One or more of the following:
(a) Federal funds, certificates of deposit, time
deposits, and bankers' acceptances (having original maturities of not more than
365 days) of any domestic bank, the short-term debt obligations of which have
been rated at least A-1 by Standard & Poor's and P-1 by Moody's (a "Qualified
Bank");
(b) Deposits of any bank or savings and loan association
(the long-term deposit rating of which is Baa2 or better by Moody's and BBB or
better by Standard & Poor's) which has combined capital, surplus and undivided
profits of at least $50,000,000 which deposits are insured to the maximum extent
by the FDIC and made in aggregate amounts less than the limits insured by the
FDIC;
(c) Commercial paper (having original maturities of not
more than 270 days) rated in the highest short-term rating categories of
Standard & Poor's, i.e., A-1+, and Moody's;
(d) Investments in no-load money market funds registered
under the Investment Company Act of 1940 whose shares are registered under the
Securities Act and rated AAAm or AAAm-G by Standard & Poor's and Aaa by Moody's;
(e) direct obligations of, and obligations fully
guaranteed by, the United States of America;
(f) repurchase agreements fully collateralized by
possession of obligations of the type specified in clause (e) above; provided,
however, that investments in such repurchase agreements shall mature within
three days of the acquisition thereof and; provided further, that such
agreements shall be entered into with a Qualified Bank (as defined in clause (a)
above); and
(g) money market accounts or money market mutual funds
investing primarily in obligations of the United States government, and further
investing exclusively in debt obligations, provided, however, that such money
market accounts or money market mutual funds shall be rated at least AAAm or
AAAm-G by Standard & Poor's and P-1 by Moody's;
provided that no instrument described above shall evidence either the right to
receive (i) only interest with respect to the obligations underlying such
instrument or (ii) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provided a yield to maturity at par greater than 120% of the
yield to maturity at par of the underlying obligations; and provided, further,
that all instruments described hereunder shall mature at par on or prior to the
next succeeding Payment Date unless otherwise provided in this Agreement and
that no instrument described
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hereunder may be purchased at a price greater than par if such instrument may be
prepaid or called at a price less than its purchase price prior to stated
maturity.
"Eligible Receivable": At any time, any Receivable which satisfies the
following conditions:
(i) it shall have been (A) originated by an Affiliate
of the Seller or originated by an independent third party and
reunderwritten and purchased by the Seller in the ordinary course of
its business, and in either case shall have been validly assigned by
such Affiliate or by such independent third party to the Seller; or (B)
originated by the Seller; and in any event it shall be the legal,
valid, binding and enforceable obligation of the Obligor thereunder to
the Seller;
(ii) the principal and interest due thereunder shall
at all times be secured by the manufactured housing financed under the
terms of the Contract or Mortgage Note and related Mortgage related to
such Receivable and in the case of a Receivable secured by a mortgage
or deed of trust, is secured by the real property on which such housing
is or will be located, in each case pursuant to a valid and binding
first priority lien and security interest therein enforceable by the
Seller;
(iii) in the good faith determination of Seller
(A)(1) such Receivable shall be eligible as collateral to secure notes
or pass-through certificates issued by, or loans made to, the Seller,
or a special purpose entity created by the Seller or a Subsidiary of
the Seller, to or by nationally recognized insurance companies, pension
plans and other institutional purchasers or lenders and public markets
and (2) one or more such institutional purchasers, public markets or
lenders shall be likely to purchase such notes or make such loans, or
(B) such Receivable shall satisfy all requirements for FHA or VA
insurance;
(iv) the creditworthiness of the Obligor thereunder
shall have been reviewed, and the Receivable shall have been
underwritten, by the Seller or an Affiliate of the Seller in accordance
with the Credit and Collection Policy; provided, however, that the
requirement of this subsection (iv) shall not apply to a Receivable
which had previously been sold or permanently financed in a securitized
transaction and has been repurchased by the Seller or an Affiliate of
the Seller pursuant to a "clean-up call" under such transaction;
(v) the date such Receivable was first recorded in
the Servicer's Alltel system is not more than nine (9) months prior to
such time, unless such Receivable had previously been sold or
permanently financed in a securitized transaction and has been
repurchased by the Seller or an Affiliate of the Seller pursuant to "a
clean-up call" under such transaction;
(vi) which, together with the Contract or Mortgage
Note and related Mortgage related thereto, does not contravene in any
material respect any laws, rules or regulations applicable thereto
(including, without limitation, laws, rules and regulations relating to
usury laws, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity
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Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices
Act, the Federal Trade Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act,
Regulation B and Z of the Federal Reserve Board, various state
adaptations of the National Consumer Act and of the Uniform Consumer
Credit Code, and other consumer credit laws and equal opportunity and
disclosure laws) and with respect to which no part of the Contract or
Mortgage Note and related Mortgage related thereto is in violation of
any such law, rule or regulation in any material respect;
(vii) which is evidenced by one original note or
executed purchase contract, which is in existence and (a) in the case
of a Contract, secured by a valid perfected first lien on the property
securing such Receivable, or (b) in the case of a Mortgage Loan, is
secured by a valid first lien on the property securing such Receivable;
(viii) other than Receivables originated or as to
which an application for financing was submitted on or prior to the
Closing Date and Mortgage Loans for which the related credit score,
computed using the Seller's proprietary Fair, ▇▇▇▇▇ credit scorecards,
was equal to or greater than 230, the Obligor with respect to such
Receivable shall have either (A) paid to the Seller, an Affiliate of
the Seller or the third party originator of such Receivable in
immediately available funds a minimum down payment of $499 with respect
to single section homes and $999 with respect to multi-section homes,
or (B) granted to the Seller, an Affiliate of the Seller or the third
party originator of such Receivable, pursuant to acceptable
documentation, a first priority lien on and security interest in real
property owned by such purchaser in fee simple, without any consensual
liens or encumbrances thereon, which has been independently appraised
by an appraiser acceptable to the Class A Note Agent in its reasonable
discretion as having a fair market value of not less than five percent
(5%) of the purchase price of such manufactured housing which will be
located on such real property; provided, however, that the requirements
of this subsection (viii) shall not apply to a Receivable of the type
described in the proviso to subsection (iv) of this definition;
(ix) it shall require payments not less frequently
than monthly of principal and interest amortized over a term of not
more than thirty (30) years from the first payment date thereon
sufficient to fully amortize the principal balance of such Receivable
on its maturity date;
(x) no payment required thereunder shall be (A) on
the Closing Date or the Addition Date on which such Receivable is
transferred pursuant hereto, 30 days or more Delinquent or (B) at any
time thereafter, more than 60 days Delinquent, notwithstanding any
grace period or waiver therefor extended by the Seller, an Affiliate of
the Seller or a third party originator of such Receivable or any
amendment or modification thereof by the Seller, an Affiliate of the
Seller or a third party originator of such Receivable to extend the
payment date;
(xi) it shall not be subject to any security interest
or lien other than the security interest granted to the Indenture
Trustee;
(xii) which is denominated and payable only in United
States dollars in
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the United States and the related property which secures such
Receivable is located in the United States;
(xiii) which will at all times be the legal, valid,
and binding payment obligation of the related Obligor enforceable
against such Obligor in accordance with its terms and which Receivable
is not the subject of any litigation other than bankruptcy litigation
if, as of the close of business on such day, such Obligor has made all
payments due on such Receivable or subject to any bankruptcy plan or
workout or forbearance agreement other than any such plan or agreement
if, as of the close of business on such day, such Obligor has made all
payments due on such Receivable;
(xiv) as to which the Seller has satisfied all
obligations to be fulfilled at the time it is transferred to the
Transferor, and by the Transferor to the Depositor, and by the
Depositor to the Issuer;
(xv) which has been originated and serviced in
accordance with the Credit and Collection Policy and the Servicing
Standard and, with respect to Receivables secured by a new Manufactured
Home and first recorded in the Servicer's Alltel system after March 31,
2001, either (A) is subject to FHA Insurance, (B) at the time of
origination, did not have a Loan-to-Value Ratio of more than 70% or (C)
has a FICO credit score of at least 560;
(xvi) the Obligor of which has been directed to make
all payments to a specified account, post office box or lockbox
maintained with a Person which is not an Affiliate of the Seller;
(xvii) which has not been released from the lien
granted under the Indenture;
(xviii) for which the Seller has completed Required
Documentation upon the related closing, and has certified that it has
sent the Required Documentation with respect to such Receivable to the
Custodian by common carrier on or prior to the date of determination of
eligibility;
(xix) which is not related to a Repo Property or an
REO Property (other than Receivables related to the resale of such
property to new Obligors);
(xx) which, at the time of origination, did not have
a Loan-to-Value Ratio of more than 100%;
(xxi) as to which the representations and warranties
set forth in Section 2.2 are true and correct;
(xxii) which has been recorded in the Servicer's
Alltel system;
(xxiii) that has the following legend set forth in
bold-faced letters (the "Legend") on a separate sheet that is stapled
or similarly attached (but in no event attached by paper clip or other
less permanent means) to the front page of such Contract
- 11 -
or Mortgage Note:
"This Contract/Mortgage Note has been sold by Oakwood
Acceptance Corporation, LLC to Ginkgo Corporation, by
Gingko Corporation to Oak Leaf Holdings, LLC and by Oak
Leaf Holdings LLC to OMI Note Trust 2003-A and is subject
to a security interest granted in favor of, and has been
collaterally assigned to, JPMorgan Chase Bank, as
Indenture Trustee, by OMI Note Trust 2003-A pursuant to an
Indenture dated as of January 23, 2003 and for which a
Uniform Commercial Code Financing Statement has properly
been filed."
In the event there are multiple originally executed copies of
any Contract, the Seller shall cause such Contracts either to
(i) have the Legend attached to each copy or (ii) clearly
identify one original copy and all others as duplicate or
triplicate copies as appropriate. Notwithstanding anything to
the contrary contained herein, Contracts or Mortgage Loans in
the possession of JPMorgan Chase Bank, as custodian for Bank
of America, N.A, and/or Enterprise Funding Corporation, on the
Closing Date shall not be required to have the foregoing
legend until the seventh day after the Closing Date;
(xxiv) There is no mechanics' lien or claim for work,
labor or material affecting any related Mortgaged Property which is or
may be a Lien prior to, or equal or coordinate with, the Lien of such
Receivable, and no rights are outstanding that under law could give
rise to such a Lien except those which are insured against by a title
insurance policy;
(xxv) It is not a Land Secured Contract;
(xxvi) It has not previously been included in the
Trust Estate or been included in the Trust Estate for more than nine
(9) months, except for Receivables described in the proviso to clause
(iv) of this definition of Eligible Receivable, which have not been
included in the Trust Estate for more than six (6) months; and
(xxvii) The first payment date with respect to such
Receivable is not more than 60 days in the future; and
(xxviii) Such Receivable is secured by a "single
family residence" within the meaning of Section 25(e)(10) of the Code.
The fair market value of the Manufactured Home securing such Receivable
was at least equal to 80% of the adjusted issue price of the related
Contract at either (i) the time the Contract was originated or (ii) the
time the Receivable is transferred to the Issuer. Each Contract is an
"obligation . . . which is principally secured by an interest in real
property" within the meaning of Section 860G(a)(3) of the Code; and
(xxix) If such Receivable is originated after October
1, 2002 and is secured by a Mortgaged Property located in the State of
Georgia, it complies with the requirements of the Georgia Fair Lending
Act, as amended.
- 12 -
For purposes of this definition and the calculation of the Borrowing Base, the
eligibility of Receivables will be determined from time to time, such that a
Receivable that was an Eligible Receivable at one time but that subsequently
fails to meet all applicable eligibility requirements will no longer be an
Eligible Receivable (unless and until it again meets all applicable eligibility
requirements).
"Excluded Receivables Balance": With respect to any day, the sum,
without duplication, of the following amounts:
(i) the amount by which the aggregate Loan Balance of
Eligible Receivables relating to Receivables which have had their
maturity date extended (except Receivables rescheduled other than as a
collections measure) exceeds 3% of the Loan Balance of total Eligible
Receivables; plus
(ii) the amount by which the aggregate Loan Balance
of Eligible Receivables relating to Receivables the Obligors of which
are located in one zip code exceeds 1% of the Loan Balance of total
Eligible Receivables; plus
(iii) the amount by which the aggregate Loan Balance
of Eligible Receivables secured by manufactured homes previously
purchased by the Seller or any of its Affiliates as trade-in properties
exceeds 17.5% of the Loan Balance of total Eligible Receivables; plus
(iv) the amount by which the aggregate Loan Balance
of Eligible Receivables secured by manufactured homes previously
repossessed by the Seller or any of its Affiliates exceeds 23% of the
Loan Balance of total Eligible Receivables; plus
(v) the amount by which the aggregate Loan Balance of
Eligible Receivables with respect to which the Seller or any other
party (except the Obligor) has an obligation to make future payments in
respect thereof exceeds 2% of the Loan Balance of total Eligible
Receivables; plus
(vi) the aggregate amount by which the aggregate Loan
Balance of Eligible Receivables relating to Receivables the Obligors of
which are located in one state exceeds 20% of the Loan Balance of total
Eligible Receivables; plus
(vii) the amount of the Loan Balance of Eligible
Receivables which must be disregarded in calculating the Loan-to-Value
Ratio of the pool of Eligible Receivables in order to cause the
remaining pool of Eligible Receivables to have a weighted average
Loan-to-Value Ratio not exceeding 92.5%; plus
(viii) the amount by which the aggregate Loan Balance
of Eligible Receivables which are not Mortgage Loans exceeds 85% of the
Loan Balance of total Eligible Receivables; plus
(ix) the amount by which the aggregate Loan Balance
of Eligible Receivables not secured by multisection manufactured homes
exceeds 50% of the Loan Balance of total Eligible Receivables; plus
- 13 -
(x) the amount by which the aggregate Loan Balance of
Eligible Receivables secured by manufactured homes previously purchased
by the Seller or any of its Affiliates as trade-in properties or
secured by manufactured homes previously repossessed by the Seller or
any of its Affiliates exceeds 30% of the Loan Balance of total Eligible
Receivables; plus
(xi) the amount by which the aggregate Loan Balance
of Eligible Receivables relating to Receivables for which the Indenture
Trustee has not received a written confirmation or written
confirmations from the Custodian that the Custodian has received the
Required Documentation with respect to such Receivable as of the date
of determination of eligibility; plus
(xii) the amount by which the aggregate Loan Balance
of Eligible Receivables (a) secured by manufactured homes previously
repossessed by the Seller or any of its Affiliates and (b) with a
"beacon" or other Fair ▇▇▇▇▇▇ score as shown on the credit bureau
report relied upon in underwriting such Receivable of 400 or greater,
is less than 70% of the aggregate Loan Balance of Eligible Receivables
secured by manufactured homes previously repossessed by the Seller or
any of its Affiliates; plus
(xiii) the aggregate amount of the Loan Balance of
Eligible Receivables secured by manufactured homes previously
repossessed by the Seller or any of its Affiliates which must be
disregarded in order to cause the remaining pool of Eligible
Receivables secured by manufactured homes previously repossessed by the
Seller or any of its Affiliates to have a weighted average borrower's
Fair ▇▇▇▇▇▇ score of 190 or greater; plus
(xiv) the amount equal to the product of (A) 11
divided by 81 and (B) the lesser of (I) the amount by which the
aggregate Loan Balance of Eligible Receivables secured by manufactured
homes previously repossessed by the Seller or any of its Affiliates
exceeds 17.5% of the Loan Balance of total Eligible Receivables, and
(II) 5.5% of the Loan Balance of total Eligible Receivables.
"FDIC": The Federal Deposit Insurance Corporation, a corporate
instrumentality of the United States, or any successor thereto.
"Fees": as defined in the Note Purchase Agreement.
"FHA": The Federal Housing Administration.
"FHA Insurance": As to any FHA Receivable, FHA's agreement to reimburse
the owner of such Receivable for the amount of certain losses incurred upon the
liquidation of such Receivable.
"FHA Receivable": A Receivable that is insured by the FHA.
"FHLMC": Federal Home Loan Mortgage Corporation.
"Files": Contract Files and/or Mortgage Loan Files, as the context may
require.
- 14 -
"Final Addition Date": the third anniversary of the Closing Date, or,
if not a Business Day, the preceding Business Day.
"Final DIP Financing": A debtor-in-possession financing facility
entered into by OHC in an amount of $215,000,000 and on terms and conditions
satisfactory to the Class A Note Agent, in its reasonable discretion.
"Final Order": An order of the Bankruptcy Court approving the Final DIP
Financing and in form and substance satisfactory to the Class A Note Agent, in
its reasonable discretion.
"Final Recovery Determination": With respect to any defaulted
Receivable or REO Property or Repo Property (other than a Receivable purchased
by the Seller or the Servicer), a determination made by the Servicer that all
Liquidation Proceeds which the Servicer, in its reasonable business judgment
expects to be finally recoverable in respect thereof have been so recovered or
that the Servicer believes in its reasonable business judgment the cost of
obtaining any additional recoveries therefrom would exceed the amount of such
recoveries. The Servicer shall maintain records of each Final Recovery
Determination.
"Finance Charges": with respect to a Receivable, any finance, interest,
or similar charges owing by an Obligor or another Person pursuant to such
Receivable.
"Fitch": Fitch, Inc.
"Foreclosure Profits": With respect to a Liquidated Receivable, the
amount, if any, by which (i) the aggregate of its Net Liquidation Proceeds
exceeds (ii) the related Loan Balance (plus accrued and unpaid interest thereon
at the applicable Receivable Rate from the date interest was last paid through
the date of receipt of the final Liquidation Proceeds) of such Liquidated Loan
immediately prior to the final recovery of its Liquidation Proceeds.
"Highest Lawful Rate": As defined in Section 8.13 hereof.
"Indenture": The Indenture, dated as of January 23, 2003, between the
Issuer and the Indenture Trustee, as the same may be amended, supplemented or
otherwise modified from time to time.
"Indenture Trustee": JPMorgan Chase Bank, a New York banking
corporation, the Corporate Trust Office of which is located on the date of
execution of this Agreement at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
not in its individual capacity but solely as Indenture Trustee under the
Indenture, and any successor hereunder.
"Initial Receivables": Each Receivable identified on the Schedule of
Receivables delivered on the Closing Date.
"Insurance Policy": Any insurance policy covering any Receivable (or
the related Manufactured Home or Mortgaged Property), including, without
limitation, any Standard Hazard Insurance Policy or Primary Mortgage Insurance
Policy or FHA Insurance or VA Guaranty.
- 15 -
"Insurance Proceeds": Any proceeds received by the Servicer as a result
of the payment of a claim on an Insurance Policy.
"Insured Expenses": Expenses incurred by the Servicer in connection
with a Contract or Mortgage Loan under which the Obligor is in default, which
expenses are covered by a Standard Hazard Insurance Policy and are paid by an
insurer under any such policy.
"Issuer" or "Trust": OMI Note Trust 2003-A, a Delaware statutory trust.
"Interim DIP Financing": The debtor-in-possession financing facility
entered into by OHC in an amount of at least $25,000,000 pursuant to the Interim
Order.
"Interim Order": The order of the Bankruptcy Court dated November 26,
2002 entitled "Emergency Interim Order Approving Debtors' Motion for Interim and
Final Relief, under 11 U.S.C. Sections 105, 361, 362, 363 and 364, (A) Approving
Postpetition Financing and Related Relief, (B) Approving Use of Cash Collateral
and Adequate Protection and (C) Setting Final Hearing Pursuant to Bankruptcy
Rule 4001(C) (RE: D.I. 22)".
"Land Secured Contract": A Contract secured at origination by a parcel
of real estate in addition to a Manufactured Home.
"Lien": As defined in Section 2.2(a)(iv).
"Liquidated Loan": A Receivable as to which a Final Recovery
Determination has been made.
"Liquidation Expenses": All reasonable, out-of-pocket costs and
expenses (exclusive of the Servicer's overhead costs) incurred by the Servicer
in connection with liquidation of any Receivable or disposition of any related
Repo Property or REO Property, including, but not limited to, the cost of all
notices sent in connection with such liquidation, expenses, including reasonable
attorney's fees, incurred in connection with the commencement and pursuit of
proceedings against Obligors or guarantors or sureties of Obligors or in the
pursuit of foreclosure or other similar remedies, expenses incurred in
repossessing and refurbishing the related Manufactured Home or preparing the
related REO Property for sale and sales commissions paid in connection with the
resale of the related Manufactured Home or REO Property.
"Liquidation Proceeds": With respect to any Liquidated Loan, all
proceeds (including the proceeds of any Insurance Policy) recovered by the
Servicer in connection with such Liquidated Loan, whether through trustee's
sale, foreclosure sale or otherwise (including rental income).
"Loan Balance": With respect to any Receivable and any day, the Cut-Off
Date Principal Balance less all collections of principal credited or advanced
and not previously reimbursed against such Receivable after the related Cut-Off
Date or Additional Cut-Off Date, provided, however, that the Loan Balance for
any Receivable that has become a Liquidated Loan shall be zero as of the first
day of the Collection Period following the Collection Period in which such
Receivable becomes a Liquidated Loan, and at all times thereafter.
- 16 -
"Loan Purchase Price": With respect to any Receivable purchased from
the Issuer on any date pursuant to Section 2.2, 2.4 or 4.15 hereof, an amount
equal to the sum of (i) the Loan Balance of such Receivable as of the date of
purchase; (ii) all accrued and unpaid interest on such Receivable to the end of
the Collection Period preceding the Payment Date on which such Loan Purchase
Price is included in Available Funds; and (iii) all unreimbursed Delinquency
Advances and Servicing Advances related thereto.
"Loan-to-Value Ratio": The Contract Loan-to-Value Ratio or the Mortgage
Loan-to-Value Ratio of a Receivable, as applicable.
"Lock-Box Account": An account maintained in the name of the Indenture
Trustee at a Lock-Box Bank for the purpose of receiving Collections from
Receivables.
"Lock-Box Bank": Each of the banks set forth in Schedule III hereto and
such banks as may be added thereto or deleted therefrom pursuant to Section 2.8
(b).
"London Business Day": Any Business Day other than a day on which
commercial banking institutions in London are authorized or obligated by law or
executive order to be closed.
"Majority Noteholders": As defined in Section 6.3 hereof.
"Manufactured Home": A unit of manufactured housing (within the meaning
of Code section 25(e)(10)), a single family modular home or a single family
house together with all accessions thereto securing the indebtedness of the
Obligor under any Contract or constituting a portion of the Mortgaged Property
securing the indebtedness of the Obligor under any Mortgage Loan.
"Monthly Payment": With respect to each Receivable and any Collection
Period, the payment of principal, if any, and interest due on the Due Date in
such Collection Period with respect thereto.
"Monthly Report": The meaning provided in Section 4.16.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc. or any successor thereto.
"Mortgage": A written instrument creating a valid first lien on a
Mortgaged Property, in the form of a mortgage, deed of trust, deed to secure
debt or security deed, including any riders or addenda thereto.
"Mortgage Insurer": The insurance company or companies which issue any
Primary Mortgage Insurance Policies with respect to any Mortgage Loans.
"Mortgage Loan": A mortgage loan secured by a first lien on a one- to
four-family residential real property (which may be the real estate to which a
Manufactured Home is deemed by the Seller to have become permanently affixed as
of the related Cut-off Date or Additional Cut-Off Date).
- 17 -
"Mortgage Loan Documents": With respect to each Mortgage Loan, the
following documents:
(a) the original Mortgage Note bearing a complete chain
of endorsements, if necessary, from the initial payee thereunder to the Seller,
with a further endorsement without recourse from the Seller in blank, together
with all related riders and addenda and any related surety or guaranty
agreement, power of attorney and buydown agreement;
(b) the original recorded Mortgage (or a copy thereof
certified to be a true and correct reproduction of the original thereof by the
appropriate public recording office) with evidence of recordation noted thereon
or attached thereto, or, if the Mortgage is in the process of being recorded, a
photocopy of the Mortgage, certified by an officer of the related Seller or the
originator, the related title insurance company, the related
closing/settlement/escrow agent or the related closing attorney to be a true and
correct copy of the Mortgage submitted for recordation;
(c) the original assignment of the Mortgage from the
Seller in blank, provided that if an Assignment Event has occurred and is
continuing, such assignment of the Mortgage shall be made to the Indenture
Trustee or its Custodian and shall have evidence of recordation noted thereon or
attached thereto, or, if the assignment is in the process of being recorded, a
photocopy of the assignment, certified by an officer of the Seller to be a true
and correct copy of the assignment submitted for recordation, may be
substituted, provided, further that, if recording information for the related
Mortgage is not available, such assignment of the Mortgage may have such
recording information left blank and such assignment need not be recorded until
such recording information is received by the Servicer, whereupon, if an
Assignment Event has occurred and is continuing, the Servicer shall promptly
submit such assignment for recordation;
(d) each original recorded intervening assignment of the
Mortgage as is necessary to show a complete chain of title from the initial
mortgagee (or beneficiary, in the case of a deed of trust) to the Seller (or a
copy of each such assignment certified to be a true and correct reproduction of
the original thereof by the appropriate public recording office) with evidence
of recordation noted thereon or attached thereto, or, if an assignment is in the
process of being recorded, a photocopy of the assignment, certified by an
officer of the Seller to be a true and correct copy of the assignment submitted
for recordation, provided, that, if recording information for the related
Mortgage is not available, such assignment of the Mortgage may have such
recording information left blank and such assignment need not be recorded until
such recording information is received by the Servicer, whereupon the Servicer
shall promptly submit such assignment for recordation;
(e) an original Title Insurance Policy or, if such policy
has not yet been issued or is otherwise not available, (1) a written commitment
to issue such policy issued by the applicable title insurance company and an
officer's certificate of the Seller certifying that all of the requirements
specified in such commitment have been satisfied, (2) a preliminary title report
if the related Mortgaged Property is located in a state in which preliminary
title reports are acceptable evidence of title insurance or (3) a certificate of
an officer of the Seller certifying that a Title Insurance Policy is in full
force and effect as to the related Mortgage and that such Title Insurance Policy
is freely assignable to and will inure to the benefit of the Indenture Trustee
- 18 -
(subject to recordation of the related Assignment of Mortgage) or (4) an opinion
of counsel with respect to the title of the related Mortgaged Property;
(f) for each Mortgage Loan having in place a Primary
Mortgage Insurance Policy, a Primary Mortgage Insurance Policy or a certificate
of primary mortgage insurance issued by the related Mortgage Insurer or its
agent indicating that such a policy is in effect as to such Mortgage Loan or, if
neither a policy nor a certificate of insurance from the related Mortgage
Insurer is available, a certificate of an officer of the Seller certifying that
a Primary Mortgage Insurance Policy is in effect as to such Mortgage Loan;
(g) each related assumption agreement, modification,
written assurance or substitution agreement, if any; and
(h) proof of the maintenance of a Standard Hazard
Insurance Policy (and a flood insurance policy, if applicable) as to the related
Mortgaged Property.
"Mortgage Loan File": With respect to any Mortgage Loan, (i) on the
Closing Date or related Addition Date, as the case may be, until the 30th day
thereafter, a file containing the items set forth in clause (a) of the
definition of Mortgage Loan Documents and (ii) from and after the 30th day after
the Closing Date or such Addition Date, as the case may be, a file containing
all of the related Mortgage Loan Documents (other than any assignment of
Mortgage described in clause (c) or (d) of the definition of Mortgage Loan
Documents which may, pursuant to such clause (c) or (d), be delivered or
submitted for recording on a delayed basis, so long as such assignment is
included in such file as soon as reasonably practicable.)
"Mortgage Loan-to-Value Ratio": As to a Mortgage Loan, the ratio,
expressed as a percentage, of the original principal amount of such Mortgage
Loan, to either (i) the sum of the appraised value of the land and improvements,
and the amount of any prepaid Finance Charges or closing costs that are financed
or (ii) the sum of the purchase price of the home (including taxes, insurance
and any land improvements), the appraised value of the land and the amount of
any prepaid Finance Charges or closing costs that are financed.
"Mortgage Note": A manually executed written instrument evidencing a
Mortgagor's promise to repay a stated sum of money, plus interest, to the holder
of such instrument on or before a specific date according to a schedule of
principal and interest payments.
"Mortgage Rate": With respect to each Mortgage Loan, the interest rate
specified in the related Mortgage Note.
"Mortgaged Property": The mortgaged property securing a Mortgage Loan.
"Mortgagor": The obligor on a Mortgage Note.
"Net Liquidation Proceeds": As to any Liquidated Loan, Liquidation
Proceeds net of expenses incurred by the Servicer in connection with the
liquidation of any defaulted Receivable and unreimbursed Delinquency Advances
relating to such Receivable. In no event shall Net Liquidation Proceeds with
respect to any Liquidated Loan be less than zero.
- 19 -
"Nonrecoverable Advances": With respect to any Receivable, any
Delinquency Advance which, in the good faith business judgment of the Servicer,
would not be ultimately recoverable pursuant to Section 3.2.
"Note": Any one of the notes substantially in the form attached to the
Indenture as Exhibit A.
"Note Account": The segregated note account established in accordance
with Section 3.1 hereof and maintained at the Corporate Trust Office.
"Note Purchase Agreement": The Class A Note Purchase Agreement dated as
of January 23, 2003, among the Issuer, the Depositor, the Seller, the Servicer,
the Transferor, the Purchasers parties thereto and the Class A Note Agent, as
the same may be amended, supplemented or otherwise modified from time to time.
"OAC": Oakwood Acceptance Corporation, LLC, and its permitted
successors and assigns.
"OAC Subservicing Agreement": The Subservicing Agreement dated as of
January 23, 2003, between the Servicer and OAC, as Subservicer, relating to
servicing and administration of the Receivables.
"Obligor": A person who is indebted under a Contract or who has
acquired a Manufactured Home subject to a Contract or a person who is the
Mortgagor or borrower under a Mortgage Loan or who has acquired a Mortgaged
Property subject to a Mortgage Loan.
"Officer's Certificate": A certificate signed by any Authorized Officer
of any Person delivering such certificate and delivered to the Indenture
Trustee.
"OHC": Oakwood Homes Corporation, a North Carolina corporation.
"Operative Documents": Collectively, this Agreement, the Indenture, the
Certificate of Trust, the Trust Agreement, the Note Purchase Agreement
(including the related Fee Letter and all Joinder Supplements and Transfer
Supplements), the Custodial Agreement, the OAC Subservicing Agreement, the
Notes, the Certificates, and the Agreement re Bankruptcy (as defined in the Note
Purchase Agreement).
"Opinion of Counsel": One or more written opinions of counsel who may,
except as otherwise expressly provided herein, be counsel to the Seller or an
affiliate of the Seller and who shall be satisfactory to the Indenture Trustee
and the Majority Noteholders.
"Ordinary Course Order": The First Amended And Restated Order
Authorizing Debtors to (I) Honor Certain Pre-Petition Servicing And Related
Obligations, (II) Continue Securitizing Advance Reimbursement Rights in the
Ordinary Course Of Business, (III) Continue Funding and Purchasing Retail
Installment Sales Contracts and Other Loans Originated by the Debtors in the
Ordinary Course Of Business, and (IV) Continue Securitizing Such Contracts and
Loans in the Ordinary Course Of Business, dated November 26, 2002, with any
modifications thereto as may be agreed by the Class A Note Agent from time to
time in its sole discretion.
- 20 -
"OSHC": Oakwood Servicing Holdings Co., LLC, a Nevada limited liability
company.
"Outstanding": The meaning provided in the Indenture.
"Owner Trustee": Wilmington Trust Company, as owner trustee under the
Trust Agreement, and any successor owner trustee under the Trust Agreement.
"Owner": The Person in whose name a Note is registered in the Register.
"Payment Date": The fifteenth day of each month or, if such day is not
a Business Day, the next Business Day thereafter, commencing in February, 2003.
"Percentage Interest": With respect to any Class A Note at any time, a
fraction, expressed as a decimal, the numerator of which is the Class A Note
Principal Balance represented by such Class A Note and the denominator of which
is the aggregate Class A Note Principal Balance represented by all the Class A
Notes. With respect to the Certificates, the portion evidenced thereby,
expressed as a percentage, as stated on the face of such Certificate, all of
which shall total 100% with respect to the Certificates.
"Permitted Encumbrances": In respect of any Mortgaged Property
(a) the lien of current real property taxes and
assessments not yet due and payable;
(b) covenants, conditions and restrictions, rights of
way, easements and other matters of public record as of the date of recording
acceptable to prudent mortgage lending institutions generally and specifically
referred to in the lender's title insurance policy or title opinion delivered to
the related originator and referred to or otherwise considered in the appraisal
made for the originator; and
(c) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Primary Mortgage Insurance": The insurance provided under any Primary
Mortgage Insurance Policy.
"Primary Mortgage Insurance Policy": A primary mortgage insurance
policy, if applicable, covering certain amounts in respect of conventional
Mortgage Loans for which the initial Mortgage Loan-to-Value Ratios exceeded 80%.
"Principal Cramdown": As to any Receivable, either (a) a decree by a
bankruptcy court to the effect that the portion of such Receivable that is
secured by the underlying Manufactured Home or Mortgaged Property is less than
its Loan Balance due to the fact that the value of such
- 21 -
Manufactured Home or Mortgaged Property is less than such Loan Balance or (b)
the permanent forgiveness by a bankruptcy court of some or all of the Loan
Balance owed by the related Obligor.
"Principal Cramdown Amount": With respect to any Collection Period as
to any Receivable that has been the subject of a Principal Cramdown, the amount
by which (a) the Loan Balance of such Receivable (excluding any reductions of
such Loan Balance for amounts advanced with respect to such Receivable) exceeds
(b) as applicable, depending upon the type of Principal Cramdown that was
applied to such Receivable, either (1) the portion of such Loan Balance that
remains secured by the related Manufactured Home or Mortgaged Property after
taking the related Principal Cramdown into account or (2) such Loan Balance
after taking into account the permanent forgiveness of debt ordered by the
bankruptcy court in connection with the related Principal Cramdown.
"Purchase Price": With respect to a Receivable, the fair market value
of such Receivable as mutually agreed by the Seller, the Transferor, the
Depositor and the Issuer, provided that, upon the request of the Class A Note
Agent, from time to time the Seller, the Transferor, the Depositor and the
Issuer shall discuss the basis for establishing such fair market value.
"Qualified Insurer": Any insurance company or surety or bonding company
licensed to do business and issue insurance in all relevant jurisdictions
(including, in the case of an insurer under a Standard Hazard Insurance Policy,
the jurisdiction in which each Manufactured Home or Real Property or Mortgaged
Property covered by such policy is located).
"Rating Agency": Fitch, ▇▇▇▇▇'▇ or Standard & Poor's.
"Receivable Documents": Collectively, the Contract Documents and
Mortgage Loan Documents.
"Receivable File": With respect to any Receivable, the related Contract
File or Mortgage Loan File, as applicable.
"Receivable Rate": As to any Receivable, the related Contract Rate or
Mortgage Rate, as applicable.
"Receivables": indebtedness owed to the Seller by an Obligor (without
giving effect to any transfer hereunder) under a Contract or Mortgage Loan,
whether constituting an account, chattel paper, instrument, mortgage, deed of
trust or general intangible, arising out of or in connection with the sale of
manufactured housing or mobile homes including the rendering of services by the
originating dealer in connection therewith, and includes the right of payment of
any Finance Charges and other obligations of the Obligor with respect thereto
and transferred and assigned to the Issuer pursuant to Section 2.3 or 2.5
hereof, as from time to time are held as a part of the Trust Estate, the
Receivables originally so held being identified in the Schedule of Receivables.
The term "Receivable" includes any Receivable which is Delinquent, which relates
to a foreclosure or which relates to a Mortgaged Property which is REO Property
or Related Security which is a Repo Property prior to such Mortgaged Property's
or Repo Property's disposition by the Issuer.
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"Receivables Sale and Servicing Order": An order of the Bankruptcy
Court authorizing OAC to assume and, if the terms and conditions of Section
4.19(b)(2) of this Agreement are satisfied, to assign, this Agreement, which
order contains provisions affording the Class A Note Agent and the Issuer
protections as to their rights and remedies with respect to all relevant parties
and agreements similar to the protections contained in the Ordinary Course Order
with respect to this Agreement, all in form and substance satisfactory to the
Class A Note Agent in its sole discretion, and with any modifications thereto
after the entry thereof as may be agreed by the Class A Note Agent from time to
time in its sole discretion.
"Register": The note register maintained by the Registrar in accordance
with Section 2.3 of the Indenture, in which the names of the Owners are set
forth.
"Registrar": The Indenture Trustee, acting in its capacity as Registrar
appointed pursuant to the Indenture, or any duly appointed and eligible
successor thereto.
"Related Proceeds": As defined in Section 4.22 hereof.
"Related Security" shall mean with respect to any Receivable:
(i) all of the Issuer's interest in the Manufactured
Home (including repossessed housing) or in any document, mortgage, deed
of trust or other instrument encumbering a fee, simple interest in real
property, together with improvements thereto, or writing evidencing any
security interest in any Manufactured Home and all of the Issuer's
interest in all rights to payment under all insurance contracts with
respect to related real estate or a Manufactured Home, including,
without limitation, any monies collected from whatever source in
connection with any default of an Obligor with respect to a Receivable
and any proceeds from claims or refunds of premiums on any title
insurance, physical damage, credit life, disability and hospitalization
insurance policies covering real estate, Manufactured Home or Obligors;
(ii) all of the Issuer's interest in all other
security interests or liens and property subject thereto from time to
time, if any, purporting to secure payment of such Receivable, whether
pursuant to such Receivable or otherwise, together with all financing
statements signed by an obligor and security agreements describing any
collateral securing such Receivable;
(iii) all of the Issuer's interest in all guaranties,
and other agreements or arrangements of whatever character from time to
time supporting or securing payment of such Receivable, whether
pursuant to the Contract or Mortgage Note and Mortgage related to such
Receivable or otherwise;
(iv) all of the Issuer's interest in all records,
documents and writings evidencing or related to such Receivables; and
(v) all proceeds of the foregoing.
"Released Mortgaged Property Proceeds": As to any Receivable, proceeds
received by the Servicer in connection with (a) a taking of an entire Mortgaged
Property by exercise of the
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power of eminent domain or condemnation or (b) any release of part of the
Mortgaged Property from the lien of the related Mortgage, whether by partial
condemnation, sale or otherwise, which are not released to the Obligor in
accordance with applicable law, mortgage servicing standards the Servicer would
use in servicing mortgage loans for its own account and this Agreement.
"REO Property": A Property acquired by the Servicer on behalf of the
Issuer through foreclosure or deed-in-lieu of foreclosure in connection with a
Defaulted Mortgage Loan.
"Repo Property": A Manufactured Home (and any Related Real Property)
acquired by the Servicer on behalf of the Issuer pursuant to repossession,
foreclosure or similar proceeding in connection with a Defaulted Contract.
"Required Documentation": As of any date of determination, (a) with
respect to Contracts, the Contract File, and (b) with respect to Mortgage Loans,
the Mortgage Loan File.
"SAIF": The Savings Association Insurance Fund, as from time to time
constituted, created under the Financial Institutions Reform, Recovery and
Enhancement Act of 1989 or, if at any time after the execution of this Agreement
the Savings Association Insurance Fund is not existing and performing duties now
assigned to it, the body performing such duties on such date.
"Schedule of Receivables": The schedule of Receivables listing each
Receivable to be conveyed on the Closing Date, as amended and restated from time
to time by Amended and Restated Schedules of Receivables, which schedule shall
(i) identify each Receivable, (ii) be in physical or electronic form, as elected
by the Class A Note Agent, (iii) set forth (or describe the method of
determining) as to each such Receivable (a) the Loan Balance thereof, (b) the
amount of each Monthly Payment due from the Obligor thereunder, (c) the
Receivable Rate thereof, (d) the original term to maturity thereof, (e) the date
of the related Contract or Mortgage Note, (f) the original Loan-to-Value Ratio
thereof, (g) the state in which the related Manufactured Home is located, (h)
whether the related Manufactured Home is a used, repossessed, new or transferred
home, and (i) whether or not the related Receivable is a Contract or a Mortgage
Loan, and (iv) contain all information necessary for the recipient to calculate
the Excluded Receivables Balance.
"Securities Act": The Securities Act of 1933, as amended.
"Seller": As defined in the preamble.
"Servicer": As defined in the preamble.
"Servicer Termination Event": As defined in Section 6.1 hereof.
"Servicing Advances": Advances made by the Servicer as described in
Section 4.21 hereof, including, but not limited to, advances for the payment of
personal property taxes, real estate taxes and premiums for Standard Hazard
Insurance Policies.
"Servicing Certificate": A certificate completed and executed by a
Servicing Officer on behalf of the Servicer.
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"Servicing Fee Rate": (a) if OSHC or any Affiliate of OSHC is the
Servicer, 0.5% per annum, or (b) if any other Person is the Servicer, 1.5% (or
such lesser percentage as may be agreed by such other Person and the Majority
Noteholders).
"Servicing Fee": With respect to any Payment Date, an amount equal to
the product of (i) 1/12, (ii) the Servicing Fee Rate, and (iii) the Aggregate
Outstanding Loan Balance of all Receivables held by the Issuer as of the first
day of the preceding Collection Period.
"Servicing Officer": Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Receivables whose name
and specimen signature appear on a list of servicing officers furnished to the
Indenture Trustee by the Servicer, as such list may be amended from time to
time, initially set forth in Exhibit B hereto.
"Servicing Standard": As defined in Section 4.1(e) hereof.
"Servicing Transition Account": The account designated as the Servicing
Transition Account in, and which is established and maintained pursuant to,
Section 3.1.
"Standard Hazard Insurance Policy": With respect to each Receivable,
the policy of fire and extended coverage insurance (and any federal flood
insurance, if and to the extent applicable) required to be maintained for the
related Manufactured Home as provided herein.
"Standard & Poor's": Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. or any successor thereto.
"Subservicer": OAC pursuant to the OAC Subservicing Agreement or any
other Person with whom the Servicer has entered into a Subservicing Agreement
and who satisfies any requirements set forth in Section 4.1(b) hereof in respect
of the qualification of a Subservicer.
"Subservicing Agreement": Any written contract between the Servicer and
any Subservicer other than OAC relating to servicing and/or administration of
certain Receivables as permitted by Section 4.1, a copy of which shall be
delivered to the Indenture Trustee.
"Title Insurance Policy": For any Mortgage Loan, an American Land Title
Association mortgagee's mortgage loan title policy form 1970, or other form of
mortgagee's title insurance acceptable to FNMA or FHLMC for the jurisdiction in
which the subject property is located, including all riders and endorsements
thereto, insuring, in an amount no less than 95% of such Mortgage Loan, that the
related Mortgage creates a valid first lien on the underlying Mortgaged Property
subject only to Permitted Encumbrances.
"Transferor": Ginkgo Corporation, a Delaware corporation, or any
permitted successor or assign.
"Trust Agreement": The Trust Agreement dated as of January 23, 2003
between the Depositor and the Owner Trustee, as the same may be amended,
supplemented or otherwise modified from time to time.
"Trust Estate": As defined in the Indenture.
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"UCC": The Uniform Commercial Code as in effect in any relevant
jurisdiction.
"Undocumented Receivables": Receivables with respect to which the
Seller is in possession of delivered complete Required Documentation and has not
delivered such Required Documentation to the Custodian.
"VA": The United States Department of Veterans Affairs.
"VA Receivable": A Receivable guaranteed in whole or in part by the VA.
"VA Guaranty": As to any VA Receivable, VA's full or partial guaranty
of payment of amounts due thereunder.
Except as otherwise specified herein or as the context may otherwise
require, for all purposes of this Agreement, capitalized terms used but not
otherwise defined herein have the meanings set forth in the Indenture.
Section 1.2 Use of Words and Phrases. "Herein", "hereby", "hereunder",
"hereof", "hereinbefore", "hereinafter" and other equivalent words refer to this
Agreement as a whole and not solely to the particular section of this Agreement
in which any such word is used. The definitions set forth in Section 1.1 hereof
include both the singular and the plural. Whenever used in this Agreement, any
pronoun shall be deemed to include both singular and plural and to cover all
genders. The words "including" and "include" shall be deemed to be followed by
the words "without limitation."
Section 1.3 Captions; Table of Contents. The captions or headings in
this Agreement and the Table of Contents are for convenience only and in no way
define, limit or describe the scope and intent of any provisions of this
Agreement. Section references are to this Agreement unless otherwise stated.
Section 1.4 Opinions. Each opinion with respect to the validity,
binding nature and enforceability of documents or Notes may be qualified to the
extent that the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (whether
considered in a proceeding or action in equity or at law) and may state that no
opinion is expressed on the availability of the remedy of specific enforcement,
injunctive relief or any other equitable remedy. Any opinion required to be
furnished by any Person hereunder must be delivered by counsel upon whose
opinion the addressee of such opinion may reasonably rely, and such opinion may
state that it is given in reasonable reliance upon an opinion of another, a copy
of which must be attached, concerning the laws of a foreign jurisdiction. Any
opinion delivered hereunder shall be addressed to the Indenture Trustee in
addition to other addressees.
END OF ARTICLE I
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
THE DEPOSITOR, THE TRANSFEROR
THE SERVICER, THE SELLER, OAC, AS SUBSERVICER,
AND CONVEYANCE OF THE RECEIVABLES
Section 2.1 Representations and Warranties of the Depositor, the
Transferor, the Seller, the Servicer and OAC, as Subservicer. (a) Each of the
Depositor, the Seller, the Transferor, the Servicer and OAC, as Subservicer
individually, and not jointly and severally, represents and warrants as to
itself that, as of the Closing Date:
(i) It is duly organized, validly existing and in
good standing under the laws of its state of incorporation and has the
power and authority to own its assets and to transact the business in
which it is currently engaged. It is duly qualified to do business 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 (a) its business, properties, assets or
condition (financial or other), (b) its performance of its obligations
under this Agreement and the other Operative Documents to which it is a
party, (c) the enforceability of the Receivables or (d) the ability to
foreclose on the related Mortgaged Properties;
(ii) It has the power and authority to make, execute,
deliver and perform this Agreement and the other Operative Documents to
which it is a party and to consummate all of the transactions
contemplated under this Agreement and the other Operative Documents to
which it is a party, and has taken all necessary action to authorize
the execution, delivery and performance of this Agreement and the other
Operative Documents to which it is a party. When executed and
delivered, this Agreement and the other Operative Documents to which it
is a party will constitute its legal, valid and binding obligation
enforceable in accordance with its terms, except as enforcement of such
terms may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by the availability of equitable
remedies;
(iii) It holds all necessary licenses, certificates
and permits from all government authorities necessary for conducting
its business as it is presently conducted except where the failure to
hold such a license, certificate or permit would not have a material
adverse effect on (a) its business, properties, assets or condition
(financial or other), (b) its performance of its obligations under this
Agreement and the other Operative Documents to which it is a party, (c)
the enforceability of the Receivables or (d) the ability to foreclose
on the related Mortgaged Properties or repossess Manufactured Homes. It
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 and the other Operative Documents to
which it is a party, except for such consents, licenses, approvals or
authorizations, or
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registrations or declarations, as shall have been obtained or filed, as
the case may be, prior to the Closing Date except such that may be
required by the blue sky laws of any state and except for any UCC
filings necessary to perfect the Liens granted pursuant hereto or
mortgage recordings required following an Assignment Event and except,
in the case of the Seller and Servicer, for such consents, licenses,
approvals or authorizations, or registrations or declarations, as shall
have been already obtained or filed, as the case may be;
(iv) The execution, delivery and performance of this
Agreement and the other Operative Documents to which it is a party by
it will not conflict with or result in a breach of, or constitute a
default under, any provision of any existing law or regulation or any
order or decree of any court applicable to it or any of its properties
or any provision of its organizational documents, or constitute a
material breach of, or result in the creation or imposition of any
lien, charge or encumbrance upon any of its properties pursuant to, any
mortgage, indenture, contract or other agreement to which it is a party
or by which it may be bound;
(v) No certificate of an officer, statement furnished
in writing or report delivered pursuant to the terms hereof by it for
use in connection with the purchase of the Receivables and the
transactions contemplated hereunder and by the other Operative
Documents will contain any untrue statement of a material fact, or omit
a material fact necessary to make the certificate, statement or report
in light of the circumstances in which they were given not misleading;
(vi) The transactions contemplated by this Agreement
and the other Operative Documents to which it is a party are in the
ordinary course of its respective businesses;
(vii) [Intentionally deleted];
(viii) It is not in violation of any order or decree
of any court or any order or regulation of any federal, state,
municipal or governmental agency having jurisdiction, which violation
would materially and adversely affect its condition (financial or
otherwise) or operations or any of its properties or materially and
adversely affect the performance of any of its duties hereunder;
(ix) There are no actions or proceedings against, or
investigations of it, pending or, to its knowledge, threatened, before
any court, administrative agency or other tribunal (A) that, if
determined adversely, would prohibit it from entering into this
Agreement and the other Operative Documents to which it is a party, (B)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (C) that, if determined adversely,
would prohibit or materially and adversely affect its performance of
its obligations under, or the validity or enforceability of, this
Agreement and the other Operative Documents to which it is a party
except, in the case of the Seller and OAC, for the bankruptcy filing
made by the Seller and OAC on November 15, 2002;
(x) The Servicer is an indirect wholly-owned
subsidiary of OHC, except
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if the servicing rights and obligations of the Servicer have been
transferred by OSHC to another Servicer in accordance with the
provision of Section 4.19 hereof;
(xi) The Subservicer is a direct wholly-owned
subsidiary of OHC, except if the servicing rights and obligations of
OAC, as Subservicer, pursuant to the OAC Subservicing Agreement, have
terminated;
(xii) The Seller represents and warrants that it did
not and will not sell the Receivables to the Transferor, the Transferor
represents and warrants that it did not and will not sell Receivables
to the Depositor and the Depositor represents and warrants that it did
not and will not sell the Receivables to the Issuer with any intent to
hinder, delay or defraud any of their respective creditors;
(xiii) Each of the Depositor, the Transferor and the
Seller represents and warrants that it acquired title to the
Receivables in good faith, without notice of any adverse claim; and
(xiv) Each of the Depositor, the Transferor and the
Seller represents and warrants that the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller, the
Transferor and the Depositor pursuant to this Agreement are not subject
to the bulk transfer laws or any similar statutory provisions in effect
in any applicable jurisdiction.
(xv) All pension or profit sharing plans of the
Seller have been fully funded in accordance with applicable
obligations.
(xvi) Neither the Depositor, the Transferor nor the
Seller has dealt with any broker, banker, agent or other person (other
than the Class A Note Agent and its Affiliates, the Indenture Trustee
and the Custodian and their respective counsel) that may be entitled to
any commission or compensation in connection with the sale of the
Receivables.
(xvii) The names and addresses of all the Lock-Box
Banks, together with the account numbers of the lock-box accounts of
Subservicer at such Lock-Box Banks, are specified in Schedule III (or
have been notified to the Indenture Trustee in accordance with Section
8.10).
(b) The representations and warranties set forth in this
Section shall survive each sale and assignment of Receivables to the Issuer.
Upon discovery of a breach of any representations and warranties which
materially and adversely affects the interests of the Owners, the Person
discovering such breach shall give prompt written notice to the other parties.
Within 30 days of its discovery or its receipt of notice of breach or, with the
prior written consent of the Class A Note Agent, such longer period specified in
such consent, the Depositor, the Seller, the Servicer or, unless the servicing
rights and obligations of the Subservicer have been transferred by OAC, the
Subservicer, as appropriate, shall cure such breach in all material respects or
repurchase any Receivable as to which the interests of the Owners are materially
and adversely affected pursuant to Section 2.4 of this Agreement.
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Section 2.2 Representations and Warranties of the Seller Regarding the
Receivables. (a) The Seller represents and warrants to the Issuer and the
Indenture Trustee for the benefit of the Owners, as follows, with respect to
each Initial Receivable as of the Closing Date and, with respect to each
Additional Receivables, as of the related Addition Date (each such date, a
"Relevant Date") that:
(i) As of the Relevant Date, the information relating
to the Receivables set forth in the Schedule of Receivables is true and
correct in all material respects as of the Cut-Off Date or the related
Additional Cut-Off Date, as the case may be, and each Receivable
included in the Borrowing Base is an Eligible Receivable;
(ii) Each Mortgage is a valid and subsisting first
lien of record on the Mortgaged Property subject in all cases to the
exceptions to title set forth in the title insurance policy with
respect to the related Receivable, which exceptions are generally
acceptable to manufactured housing lending companies, and such other
exceptions to which similar properties are commonly subject and which
do not individually, or in the aggregate, materially and adversely
affect the benefits of the security intended to be provided by such
Mortgage. Any security agreement, chattel mortgage or equivalent
document related to the Mortgage and delivered to the Indenture Trustee
or Custodian establishes a valid and subsisting lien on the property
described therein, and, as of the Closing Date or the Addition Date, as
applicable, the Seller has full right to assign the same to the
Transferor, the Transferor has full right to assign the same to the
Depositor and the Depositor has full right to assign the same to the
Issuer.
(iii) Except with respect to liens released
immediately prior to the transfers herein contemplated, each Receivable
has not been assigned or pledged and immediately prior to the transfers
and assignments herein contemplated, the Seller held good, marketable
and indefeasible title to, and was the sole owner and holder of, each
Receivable subject to no liens, charges, mortgages, claims,
participation interests, equities, pledges or security interests of any
nature, encumbrances or rights of others (collectively, a "Lien"); the
Seller has full right and authority under all governmental and
regulatory bodies having jurisdiction over the Seller, subject to no
interest or participation of, or agreement with, any party, to sell and
assign the same pursuant to this Agreement; and immediately upon the
transfers and assignments herein contemplated, the Seller shall have
transferred all of its right, title and interest in and to each
Receivable to the Transferor, the Transferor shall have transferred all
of its right, title and interest in and to each Receivable to the
Depositor and the Depositor shall have transferred all of its right,
title and interest in and to each Receivable to the Issuer and the
Issuer will hold good, marketable and indefeasible title, to, and be
the sole owner of, each Receivable subject to no Liens other than the
Lien of the Indenture;
(iv) There is no delinquent tax, fee or assessment
Lien on any Mortgaged Property, and no notice has been received by it
to the effect that any Mortgaged Property is not free of material
damage;
(v) Except with respect to any funds held in a
temporary buy-down fund for a buy-down loan, no Receivable is subject
to any right of rescission, set-off,
- 30 -
counterclaim or defense, including the defense of usury, nor will the
operation of any of the terms of any Receivable, or the exercise of any
right thereunder, render such Receivable unenforceable in whole or in
part, or subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury, and no such right of
rescission, set-off, counterclaim or defense has been asserted with
respect thereto;
(vi) Each Receivable at the time it was made complied
with, and each Receivable at all times was serviced in compliance with,
in each case, in all material respects, applicable state and federal
laws and regulations, including, without limitation, usury, equal
credit opportunity, consumer credit, truth-in-lending and disclosure
laws;
(vii) Each Contract, Mortgage Note and the related
Mortgage are genuine, and each Contract, Mortgage and Mortgage Note is
the legal, valid and binding obligation of the related Obligor and is
enforceable in accordance with its terms, including any extensions or
modifications thereof, except only as such enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by
general principles of equity (whether considered in a proceeding or
action in equity or at law), and all borrower parties to each
Receivable and the mortgagor had full legal capacity to execute all
Receivable documents and to convey the estate therein purported to be
conveyed. The Obligor is one or more natural persons who are party to
the Contract, the Mortgage Note and/or the Mortgage in an individual
capacity, and not in the capacity of a trustee or otherwise;
(viii) The Seller has directed the Servicer to
perform any and all acts required to be performed to preserve the
rights and remedies of the Indenture Trustee in any insurance policies
applicable to the Receivables including, without limitation, any
necessary notifications of insurers, assignments of policies or
interests therein, and establishments of co-insured, joint loss payee
and mortgagee rights in favor of the Indenture Trustee;
(ix) The terms of the related Contract, Mortgage Note
and/or Mortgage have not been impaired, altered or modified in any
material respect, except by a written instrument which has been
recorded or is in the process of being recorded, if necessary, to
protect the interests of the Owners and which, in the case of a
Mortgage Loan, has been or will be delivered to the Custodian. The
substance of any such alteration or modification is reflected on the
Schedule of Receivables and was approved, if required, by the related
primary mortgage guaranty insurer, if any. Each original Mortgage was
recorded, and, if an Assignment Event shall have occurred, all
subsequent assignments of the original Mortgage have been recorded in
the appropriate jurisdictions wherein such recordation is necessary to
perfect the lien thereof as against creditors of the Seller, or, except
as provided in Section 2.3 hereof, are in the process of being
recorded, provided, that, if recording information for the related
original Mortgage is not available, such subsequent assignments of the
Mortgage may have such recording information left blank and need not be
recorded until such recording information is received by the Servicer,
whereupon, if an Assignment Event shall have occurred, the Servicer
shall promptly submit such assignments for recordation;
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(x) No instrument of release or waiver has been
executed in connection with any Receivable, and no Obligor has been
released, in whole or in part, except in accordance with the Credit and
Collection Policy;
(xi) Except for payment defaults, there are no
defaults in complying with the terms of the related Contract or
Mortgage, and any taxes, governmental assessments, insurance premiums,
water, sewer and municipal charges or ground rents which previously
became due and owing have been paid except where failure to so pay
would not result in a prior lien or other adverse effect. Except for
any Delinquency Advance or Servicing Advance, the Seller has not
advanced funds, or induced, solicited or knowingly received any advance
of funds by a party other than the Obligor, directly or indirectly, for
the payment of any amount required by the related Contract or Mortgage,
except for interest accruing from the date of the Contract or Mortgage
Note or date of disbursement of the Contract or Mortgage Note proceeds,
whichever is later, to the day which precedes by one month the Due Date
of the first installment of principal and interest;
(xii) There is no proceeding pending or, to the best
of the Seller's knowledge, threatened for the total or partial
condemnation of any Manufactured Home;
(xiii) As of the date of origination of the related
Mortgage Loan, no improvement located on or being part of any Mortgaged
Property was in violation of any applicable zoning law or regulation,
and all inspections, licenses and certificates required to be made or
issued at such time with respect to all occupied portions of each
Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy and fire
underwriting certificates, had been made or obtained from the
appropriate authorities and each Mortgaged Property was lawfully
occupied under applicable law;
(xiv) With respect to each Mortgage constituting a
deed of trust, a trustee, duly qualified under applicable law to serve
as such, has been properly designated and currently so serves and is
named in such Mortgage, and no fees or expenses are or will become
payable to the trustee under the deed of trust, except in connection
with a trustee's sale after default by the Obligor;
(xv) No Receivable has a shared appreciation feature,
or other contingent interest feature;
(xvi) The Seller and any Affiliates thereof (other
than the Depositor and the Issuer) which have had any interest in the
Receivable, whether as originator, mortgagee, assignee, pledgee,
servicer or otherwise, are (or, during the period in which they held
and disposed of such interest, were) (1) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the
Mortgaged Property is located, and (2) (A) organized under the laws of
such state, or (B) qualified to do business in such state, or (C)
federal savings and loan associations or national banks having
principal offices in such state, or (D) not doing business in such
state so as to require qualification or licensing;
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(xvii) Each Mortgage contains a provision for the
acceleration of the payment of the unpaid principal balance of the
Receivable in the event the related security for the Receivable is sold
without the prior consent of the mortgagee thereunder;
(xviii) As of the Relevant Date, any future advances
made prior to the Cut-Off Date or the related Additional Cut-Off Date,
as the case may be, with respect to such Receivable have been
consolidated with the outstanding principal amount of such Receivable,
and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term reflected on the Schedule of
Receivables. The Contract or Mortgage Note does not permit or obligate
the Seller to make future advances to the Obligor at the option of the
Obligor;
(xix) Each Mortgage contains customary and
enforceable provisions which render the rights and remedies of the
holder thereof adequate for the realization against the related
Mortgaged Property of the benefits of the security, including, (i) in
the case of a Mortgage designated as a deed of trust, by trustee's
sale, and (ii) otherwise by repossession and sale or judicial or
non-judicial foreclosure;
(xx) The Receivables were not selected by the Seller
for sale pursuant hereto on any basis intended to adversely affect the
Issuer;
(xxi) No Obligor has requested relief under the Civil
Relief Act;
(xxii) Each of the documents and instruments included
in a File were at the time prepared in a form generally acceptable to
prudent institutional mortgage lenders that regularly originate or
purchase loans or contracts of the same type. Upon delivery of an
Assignment of Mortgage to the Indenture Trustee, such assignment will
be in recordable form for the applicable jurisdiction where the related
Mortgaged Property is located, provided that such Assignment of
Mortgage may be delivered in blank and with recording information left
blank;
(xxiii) The Servicer or the Subservicer is in
possession of a complete File, except those documents delivered as
directed by the Depositor, and there are no custodial agreements in
effect adversely affecting the right or ability of the Seller to make
the document deliveries required hereby;
(xxiv) The collection practices used by the Servicer
and the Subservicer with respect to the Receivables have been, in all
material respects, legal, proper, prudent and customary in the
manufactured housing loan servicing businesses;
(xxv) There is no pending action or proceeding
directly involving a Mortgaged Property in which compliance with any
environmental law, rule or regulation is an issue; there is no
violation of any environmental law, rule or regulation with respect to
a Mortgaged Property; and Seller has not received any notice of any
environmental hazard on a Mortgaged Property and nothing further
remains to be done to satisfy in full all requirements of each such
law, rule or regulation constituting a prerequisite to use and
enjoyment of said property; and
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(xxvi) Except for payment defaults, there exist no
deficiencies with respect to escrow deposits and payments, if such are
required, for which customary arrangements for repayment thereof have
not been made.
(b) It is understood and agreed that the representations
and warranties set forth in this Section shall survive the conveyance of the
Receivables and the delivery of the respective Files to the Custodian or
Indenture Trustee, the termination of the rights and obligations of the Servicer
pursuant to Section 5.4 and 6.1 and the termination of the rights and
obligations of OAC, as Subservicer, pursuant to the OAC Subservicing Agreement.
Upon discovery by the Depositor, the Transferor, the Seller, the Servicer, OAC,
as Subservicer, the Custodian or the Indenture Trustee of a breach of any of the
foregoing representations and warranties, which materially and adversely affects
the interest of the Indenture Trustee in the related Receivable, the party
discovering such breach shall give prompt written notice to the other parties.
Within 60 days of its discovery or its receipt of notice of breach, the Seller
shall cure such breach in all material respects or shall purchase such
Receivable from the Issuer. Any such purchase by the Seller shall be at the Loan
Purchase Price and in each case shall be accomplished in the manner set forth in
Section 2.4. It is understood and agreed that the obligation of the Seller to
cure or purchase any Receivable as to which such a breach has occurred and is
continuing shall constitute the sole remedies against the Seller respecting such
breach available to the Issuer, the Transferor, the Depositor, the Owners or the
Indenture Trustee on behalf of Owners.
Section 2.3 Conveyance of the Receivables. By execution of this
Agreement, the Seller does hereby transfer, assign, set over and otherwise
convey to the Transferor, and the Transferor does hereby transfer, assign,
set-over and otherwise convey to the Depositor and the Depositor does hereby
transfer, assign, set over and otherwise convey to the Issuer, (i) all of its
respective right, title and interest in and to each Receivable identified on the
Schedule of Receivables, including the related Files and related Documents, from
time to time existing (x) at the close of business on the Cut-Off Date, in the
case of the Initial Receivables and (y) at the close of business on each
Additional Cut-Off Date, in the case of Additional Receivables, provided that
the related Contract or Mortgage Note has been delivered to the Custodian, (ii)
the Related Security and any other property which secured such Receivable and
which has been acquired by foreclosure or deed in lieu of foreclosure or
otherwise; (iii) the portions of its interest in any Insurance Policies relating
to such Receivable; and (iv) all payments on and proceeds of any of the
foregoing. The transfer by the Seller to the Transferor, by the Transferor to
the Depositor and by the Depositor to the Issuer of the Receivables set forth
herein is absolute and is intended by all parties hereto to be treated as a sale
by the Seller to the Transferor, by the Transferor to the Depositor and by the
Depositor to the Issuer. Pursuant to the Indenture, the Issuer will pledge the
Trust Estate to the Indenture Trustee for the benefit of the Owners of the
Notes. The foregoing does not constitute and is not intended to result in the
creation or assumption by the Issuer, the Custodian, the Indenture Trustee or
any Owner of any obligation of the Seller, the Servicer, OAC or any other Person
in connection with the Receivable Documents or under any agreement or instrument
relating thereto, including any obligation to make future advances.
In consideration of such transfers, the Transferor will pay to the
Seller in cash a purchase price equal to the Purchase Price of each Receivable
transferred, the Depositor will pay to the Transferor in cash a purchase price
equal to the Purchase Price of each Receivable transferred
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and the Issuer will pay to the Depositor in cash the net proceeds of the sale of
Notes with respect to each Receivable, with the difference between the Purchase
Price of each Receivable and the net proceeds of the Notes related thereto to be
deemed a capital contribution by the Depositor to the Issuer. The purchase price
or capital contribution due with respect to Receivables transferred on the
Closing Date will be payable on the Closing Date. The purchase price or capital
contribution due with respect to Receivables transferred on any Addition Date
will be payable as and when agreed by the Issuer, the Depositor, the Transferor
and the Seller, but not later than the seventh day after such Addition Date.
In the event that any such conveyance is deemed to be a loan, the
parties intend that such conveyance be deemed to constitute a security interest
granted by the Person described above as selling the Trust Estate pursuant to
such conveyance in favor of the Person described above as purchasing the Trust
Estate in such conveyance, that with respect to such conveyance this Agreement
shall constitute a security agreement under applicable law, and that any
subsequent conveyances pursuant to this Agreement shall be deemed to be
assignments of such secured party's security interest.
In connection with the sale, transfer, assignment, and conveyance from
the Seller to the Transferor, the Seller has filed, in the appropriate office or
offices in the State of Delaware, a UCC-1 financing statement executed by the
Seller as debtor, naming the Transferor as secured party, naming the Indenture
Trustee as assignee of the secured party and listing the Receivables and the
other property described above as collateral. The characterization of the Seller
as the debtor and the Transferor as the secured party in such financing
statements is solely for protective purposes and shall in no way be construed as
being contrary to the intent of the parties that this transaction be treated as
a sale of the Seller's entire right, title and interest in the Receivables. In
connection with such filing, the Seller agrees that it shall cause to be filed
all necessary continuation statements thereof and to take or cause to be taken
such actions and execute such documents as are necessary to perfect and protect
the Transferor's interest in the Receivables.
In connection with the sale, transfer, assignment, and conveyance from
the Transferor to the Depositor, the Transferor has filed, in the appropriate
office or offices in the State of Delaware, a UCC-1 financing statement executed
by the Transferor as debtor, naming the Depositor as secured party, naming the
Indenture Trustee as assignee of the secured party and listing the Receivables
and the other property described above as collateral. The characterization of
the Transferor as the debtor and the Depositor as the secured party in such
financing statements is solely for protective purposes and shall in no way be
construed as being contrary to the intent of the parties that this transaction
be treated as a sale of the Transferor's entire right, title and interest in the
Receivables. In connection with such filing, the Transferor agrees that it shall
cause to be filed all necessary continuation statements thereof and to take or
cause to be taken such actions and execute such documents as are necessary to
perfect and protect the Depositor's interest in the Receivables.
In connection with the sale, transfer, assignment, and conveyance from
the Depositor to the Issuer, the Depositor has filed, in the appropriate office
or offices in the States of Delaware, a UCC-1 financing statement executed by
the Depositor as debtor, naming the Issuer as secured party, naming the
Indenture Trustee as assignee of the secured party and listing the Receivables
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and the other property described above as collateral. The characterization of
the Depositor as the debtor and the Issuer as the secured party in such
financing statements is solely for protective purposes and shall in no way be
construed as being contrary to the intent of the parties that this transaction
be treated as a sale of the Depositor's entire right, title and interest in the
Trust Estate. In connection with such filing, the Depositor agrees that it shall
cause to be filed all necessary continuation statements thereof and to take or
cause to be taken such actions and execute such documents as are necessary to
perfect and protect the Issuer's interest in the Trust Estate.
In connection with the pledge of the Trust Estate from the Issuer to
the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has
filed, in the appropriate office or offices in the State of Delaware, a UCC-1
Financing Statement executed by the Issuer as debtor, naming the Indenture
Trustee, for the benefit of the Owners of the Notes, as the secured party and
listing the Receivables and the other property described above as collateral. In
connection with such filing, the Issuer agrees that it shall cause to be filed
all necessary continuation statements thereof and to take or cause to be taken
such actions and execute such documents as are necessary to perfect and protect
the Indenture Trustee's interest in the Trust Estate for the benefit of the
Owners of the Notes.
(a) Each of the Depositor, the Transferor and the Seller
hereby agrees (i) on or prior to the Closing Date, in the case of the Initial
Receivables and (ii) on or prior to the applicable Addition Date, in the case of
Additional Receivables, to make the appropriate entries in its general
accounting records, to indicate that Receivables have been transferred to the
Indenture Trustee and constitute part of the Issuer in accordance with the terms
of the trust created thereunder.
(b) Upon the occurrence of an Assignment Event, as
promptly as practicable but in no event more than 45 days thereafter, the
Servicer shall, at its expense, with respect to each Mortgage Loan as to which
an Assignment of Mortgage has not already been recorded, record an Assignment of
Mortgage in favor of the Indenture Trustee (which may be a blanket assignment if
permitted by applicable law) in the appropriate real property or other records,
provided, further that, if recording information for the related Mortgage is not
available, such assignment of the Mortgage need not be recorded until such
recording information is received by the Servicer, whereupon, if an Assignment
Event has occurred and is continuing, the Servicer shall promptly submit such
assignment for recordation. The Indenture Trustee or the Custodian shall deliver
to the Servicer any Assignments of Mortgage held in the Files and required by
the Servicer for such filings. The Indenture Trustee is hereby appointed as the
attorney-in-fact of the Servicer with the power to prepare, execute and record
such Assignments of Mortgages in the event that the Servicer fails to do so on a
timely basis as provided in this paragraph.
(c) Neither the Custodian nor Indenture Trustee shall
have any responsibility for reviewing any File except as expressly provided in
this Section 2.3 or the Custodial Agreement. In reviewing any File pursuant to
this Section, the Custodian shall have no responsibility for determining whether
any document is valid and binding, whether the text of any assignment or
endorsement is in proper or recordable form (except, if applicable, to determine
if the Indenture Trustee is the assignee or endorsee), whether any document has
been recorded in accordance with the requirements of any applicable
jurisdiction, or whether a blanket assignment is
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permitted in any applicable jurisdiction, whether any Person executing any
document is authorized to do so or whether any signature thereon is genuine, but
shall only be required to determine whether a document has been executed, that
it appears to be what it purports to be, and, where applicable, that it purports
to be recorded.
Section 2.4 Acceptance by Indenture Trustee. The Indenture Trustee
hereby acknowledges the sale and assignment of the Receivables. If the Seller or
the Servicer is given notice under Section 2.1(b) or 2.2(b) of a breach of a
representation as provided therein and if the Seller does not correct or cure
such omission or defect within the 30-day or 60-day period specified in Section
2.1(b) or 2.2(b), as the case may be, the Seller shall purchase such Receivable
from the Issuer as of the Determination Date in the month in which such period
expired at the Loan Purchase Price of such Receivable if the failure to so
purchase such Receivable would cause a Borrowing Base Deficiency to exist. In
addition, pursuant to Section 4.15, the Servicer may, but shall have no
obligation to, repurchase certain other Receivables by paying to the Indenture
Trustee for deposit to the Note Account the Loan Purchase Price therefor. The
Loan Purchase Price for the purchased Receivable shall be deposited in the Note
Account no later than the Business Day prior to the succeeding Payment Date
after the obligation to purchase such Receivable arises or the Seller elects to
repurchase such Receivable; provided that, upon receipt by the Indenture Trustee
of written notification of such deposit signed by an officer of the Seller or
the Servicer, the Indenture Trustee or the Custodian shall release to the Seller
or the Servicer, as applicable, the related File and the Indenture Trustee shall
execute and deliver a release of lien in the form of Exhibit D hereto. It is
understood and agreed that the obligation of the Seller to purchase any
Receivable as to which a material defect in or breach exists shall constitute
the sole remedy against the Seller respecting such defect or omission available
to the Depositor, the Issuer, the Transferor, the Owners and the Indenture
Trustee on behalf of Owners.
The Servicer, promptly following the transfer of a Defective Receivable
from the Issuer pursuant to this Section 2.4 shall deliver an Amended and
Restated Schedule of Receivables and make appropriate entries in its records to
reflect such transfer.
Section 2.5 Additional Receivables. Without further action on the part
of any party hereto, on each Business Day on or prior to the Final Addition
Date, subject to and in compliance with the conditions set forth below and in
Section 2.3, all Contracts and Mortgage Loans originated or acquired by the
Seller and identified on a Schedule of Receivables shall be included as
Receivables as of the applicable Additional Cut-Off Date, provided that the
related Contract or Mortgage Note has been delivered to the Custodian. On the
Addition Date with respect to any such Additional Receivables, the Transferor
shall purchase from the Seller, and the Seller will sell to the Transferor, and
the Depositor shall purchase from the Transferor, and the Transferor will sell
to the Depositor, and the Issuer shall purchase from the Depositor, and the
Depositor will sell to the Issuer, such Additional Receivables, in each case the
Loan Balance sold being established as of the close of business on the
applicable Additional Cut-Off Date. In connection with the Additional
Receivables:
(i) on or before the Business Day immediately
preceding each Borrowing Date or on the date any Monthly Report is
delivered and together with each notice of Borrowing, the Seller shall
give the Depositor, the Custodian, the Indenture Trustee and
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the Class A Note Agent an amended and restated Schedule of Receivables
(an "Amended and Restated Schedule of Receivables"); and
(ii) if necessary, the Seller shall deliver to the
Depositor, the Indenture Trustee and the Class A Note Agent copies of
UCC-1 financing statements covering the Additional Receivables and
perfecting the Transferor's, the Depositor's, the Issuer's and the
Indenture Trustee's respective interests therein; and
(iii) neither the Transferor, the Depositor nor the
Issuer shall purchase, nor shall the Seller, the Transferor or the
Depositor sell, Contracts or Mortgage Loans if, prior to giving effect
to such sale, the Borrowing Base exceeds $200,000,000, the Issuer is
unable to borrow under Section 10.1 of the Indenture or an Event of
Default has occurred and is continuing under the Indenture, provided
that the obligation of the Transferor, the Depositor and the Issuer to
purchase, and the obligation of the Seller, the Transferor and the
Depositor to sell, Receivables shall resume immediately if the
Borrowing Base is less than $200,000,000, the Issuer may borrow under
Section 10.1 of the Indenture and no Event of Default has occurred and
is continuing.
Section 2.6 Books and Records. The sale of each Receivable shall be
reflected in the Seller's, the Transferor's and the Depositor's balance sheets
and other financial statements as a sale of assets by the Seller, the Transferor
and the Depositor, as the case may be, under generally accepted accounting
principles. The consolidated financial statements of OHC will contain a note in
substantially the following form:
In January, 2003 the Company entered into a sale and servicing
agreement and certain related agreements pursuant to which
Oakwood Acceptance Corporation, LLC ("OAC") sells consumer
loans to an unaffiliated entity, which in turn sells the loans
to Oak Leaf Holdings, LLC ("Oak Leaf"), a special-purpose
entity majority owned by Oakwood Capital Corporation, a
subsidiary of OAC. Oak Leaf then sells the loans to OMI Note
Trust 2003-A (the "Trust"). A majority of the purchase price
for the loans purchased by the Trust from Oak Leaf is paid in
cash, using the proceeds of debt obligations of the Trust sold
by the Trust to a financial institution pursuant to a note
purchase agreement expiring in February 2004. Such consumer
loans (i) are carried on the financial statements of OAC and
OHC solely as a result of the consolidation of the financial
statements of the Oak Leaf with OAC, (ii) are no longer owned
by OAC for state law purposes, and (iii) are not available to
satisfy the claims of creditors of OAC.
Section 2.7 Representations of Seller regarding Mortgage Loans. Without
diminishing or derogating the intentions of the parties expressed in Section 2.3
that the transfers pursuant to this Agreement are to be treated as sales, the
Seller hereby makes the following representations and warranties, which shall
survive the execution and delivery of this Agreement and which may not be waived
unless Standard & Poor's shall have consented thereto:
(a) This Agreement creates a valid and continuing
security interest (as defined in the applicable UCC) granted by the Seller to
the Transferor, creates a valid and continuing security interest granted by the
Transferor to the Depositor, and creates a valid and continuing
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security interest granted by the Depositor Issuer, in each case, in the
Receivables arising under Mortgage Loans, each of which security interests is
prior to all other Liens, and is enforceable as such as against creditors of and
purchasers from the Seller, the Transferor and the Depositor, respectively.
(b) Each Mortgage Note constitutes an "instrument" within
the meaning of the applicable UCC.
(c) The Seller, prior to the conveyances hereunder, owns
and has good and marketable title to the Receivables arising under Mortgage
Loans free and clear of any Lien, claim or encumbrance of any Person.
(d) The Seller has received all consents and approvals
required by the terms of the Mortgage Loans to the grants of security interests
in the Receivables arising under such Mortgage Loans hereunder by the Seller to
the Transferor, by the Transferor to the Depositor and by the Depositor to the
Issuer.
(e) All original executed copies of each Mortgage Note
that constitutes or evidences Receivables transferred hereunder have been
delivered to the Custodian.
(f) The Seller has received a written acknowledgment from
the Custodian that the Custodian is holding the Mortgage Notes that constitute
or evidence Receivables transferred hereunder solely on behalf and for the
benefit of the Indenture Trustee.
(g) Other than the security interest granted to the
Transferor pursuant to this Agreement, the Seller has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of the
Receivables transferred hereunder. The Seller has not authorized the filing of
and is not aware of any financing statements against the Seller that include a
description of collateral covering the Receivables transferred hereunder other
than any financing statement relating to the security interest granted to the
Transferor hereunder or that has been terminated. The Seller is not aware of any
judgment or tax lien filings against the Seller.
(h) None of the Mortgage Notes that constitute or
evidence Receivables transferred hereunder has any marks or notations indicating
that it has been pledged, assigned or otherwise conveyed to any Person other
than the Indenture Trustee.
Section 2.8 Representations of Seller regarding Contracts. Without
diminishing or derogating the intentions of the parties expressed in Section 2.3
that the transfers pursuant to this Agreement are to be treated as sales, the
Seller hereby makes the following representations and warranties, which shall
survive the execution and delivery of this Agreement and which may not be waived
unless Standard & Poor's shall have confirmed that such waiver will not result
in a withdrawal or reduction of any rating of the Senior Notes then in effect:
(a) This Agreement creates a valid and continuing
security interest (as defined in the applicable UCC) granted by the Seller to
the Transferor, creates a valid and continuing security interest granted by the
Transferor to the Depositor, and creates a valid and continuing security
interest granted by the Depositor Issuer, in each case, in the Receivables
arising under Contracts, each of which security interests is prior to all other
Liens, and is enforceable as such
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as against creditors of and purchasers from the Seller, the Transferor and the
Depositor, respectively.
(b) The Seller has taken all steps necessary to perfect
its security interest against the related Obligor in the property securing each
Receivable arising under a Contract.
(c) Each Contract constitutes "tangible chattel paper"
within the meaning of the applicable UCC.
(d) The Seller, prior to the conveyances hereunder, owns
and has good and marketable title to the Receivables arising under Contracts
free and clear of any Lien, claim or encumbrance of any Person.
(e) All original executed copies of each Contract that
constitutes or evidences Receivables transferred hereunder have been delivered
to the Custodian.
(f) The Seller has received a written acknowledgment from
the Custodian that the Custodian is holding the Contracts that constitute or
evidence Collateral solely on behalf and for the benefit of the Indenture
Trustee.
(g) Other than the security interest granted to the
Transferor pursuant to this Agreement, the Seller has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of the
Receivables transferred hereunder. The Seller has not authorized the filing of
and is not aware of any financing statements against the Seller that include a
description of collateral covering the Receivables transferred hereunder other
than any financing statement relating to the security interest granted to the
Transferor hereunder or that has been terminated. The Seller is not aware of any
judgment or tax lien filings against the Seller.
(h) None of the Contracts that constitute or evidence
Receivables transferred hereunder has any marks or notations indicating that it
has been pledged, assigned or otherwise conveyed to any Person other than the
Indenture Trustee.
END OF ARTICLE II
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ARTICLE III
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 3.1 Establishment of Accounts. The Indenture Trustee shall
establish and maintain, at the Corporate Trust Office, one or more separate
trust accounts (the "Note Account") titled "JPMorgan Chase Bank, as Indenture
Trustee of OMI Note Trust 2003-A, Note Account" and a separate trust account
(the "Servicing Transition Account") titled "JPMorgan Chase Bank, as Indenture
Trustee of OMI Note Trust 2003-A, Servicing Transition Account". Each of the
Note Account and the Servicing Transition Account shall be an Eligible Account.
Each of the Note Account and the Servicing Transition Account shall be held by
or for the benefit of the Indenture Trustee on behalf of the holders of the
Notes, and shall be either in the Indenture Trustee's name or designated in a
manner that reflects the custodial nature of the account and that all funds in
such account are held for the benefit of the Indenture Trustee. The Indenture
Trustee shall possess all right, title and interest in all funds on deposit from
time to time in the Note Account and the Servicing Transition Account and in all
proceeds thereof and all such funds, investments, proceeds and income shall be
part of the Trust Estate. Except as otherwise provided herein, the Note Account
and the Servicing Transition Account shall be under the sole dominion and
control of the Indenture Trustee for the benefit of the holders of the Notes.
If, at any time, either of the Note Account or the Servicing Transition Account
ceases to be an Eligible Account, the Indenture Trustee (or the Servicer on its
behalf) shall within five Business Days (or such longer period as to which each
Rating Agency initially rating the Senior Notes may consent) establish a new
Note Account or Servicing Transition Account, as the case may be, as an Eligible
Account and shall transfer any cash and/or any investments to such new Note
Account or Servicing Transition Account, as the case may be. In connection with
the foregoing, the Servicer agrees that, in the event that either of the Note
Account or the Servicing Transition Account is not an account with the Indenture
Trustee, the Servicer shall notify the Indenture Trustee in writing promptly
upon either of the Note Account or the Servicing Transition Account ceasing to
be an Eligible Account.
Section 3.2 Flow of Funds. On each Payment Date, after giving effect to
(i) Borrowings on such day and the disbursements of the proceeds of such
Borrowings, (ii) the purchase of Receivables and the payment of the Purchase
Price for Receivables transferred pursuant hereto as reflected in the Amended
and Restated Schedule of Receivables delivered on such day and (iii) any
purchases or repurchases of Receivables by the Seller or Servicer pursuant to
the terms hereof on such day and the payment of the Loan Purchase Price
therefor, the Indenture Trustee shall withdraw Available Funds from the Note
Account and make the following allocations or disbursements from such Available
Funds in the following order of priority, and each such disbursement shall be
treated as having occurred only after all preceding allocations or disbursements
have occurred:
(i) First, to the Backup Servicer, the Backup
Servicing Fee then due, and to the Owner Trustee, the Indenture Trustee
and the Custodian, the related accrued and unpaid fees then due, and,
to the Owner Trustee, the Indenture Trustee and the Custodian, in an
amount not to exceed $500,000 in any calendar year, for the
reimbursement of the accrued and unpaid expenses of, and, to the extent
not paid by the Seller or the Servicer, amounts due under
indemnification provisions to, the Owner Trustee, the Indenture
- 41 -
Trustee and Custodian incurred in connection with their duties and
obligations under the Operative Documents;
(ii) Second, to the Servicer, if not OSHC or an
Affiliate of OSHC, the Servicing Fee;
(iii) Third, for distribution pursuant to the
Indenture, the Class A Current Interest;
(iv) Fourth, for distribution pursuant to the
Indenture, (a) if no Event of Default shall have occurred and be
continuing, the principal amount of Class A Notes which are required to
be repaid to prevent the existence of a Borrowing Base Deficiency after
giving effect to all distributions under this Section 3.2 on such
Payment Date and (b) if an Event of Default shall have occurred and be
continuing, the lesser of the Class A Note Principal Balance and the
Available Funds remaining after giving effect to all prior
distributions under this Section 3.2 on such Payment Date;
(v) Fifth, for distribution pursuant to the
Indenture, any other amounts then due and payable to the Owners of the
Class A Notes under this Agreement, any Class A Note or the Note
Purchase Agreement;
(vi) Sixth, after the Final Addition Date, for
distribution pursuant to the Indenture, the Class A Note Principal
Balance;
(vii) Seventh, to the Owner Trustee, the Indenture
Trustee and the Custodian, to the extent not paid pursuant to clause
"First", for the reimbursement of the fees and expenses of, and, to the
extent not paid by the Seller, the Servicer or any Subservicer, the
payment of amounts due under indemnification provisions to, the Owner
Trustee, the Indenture Trustee and Custodian incurred in connection
with their duties and obligations under the Operative Documents;
(viii) Eighth, for distribution pursuant to the
Indenture, any amount which the Issuer (acting at the direction of a
majority of the Percentage Interests of the Certificates), by prior
written notice to the Indenture Trustee, elects to have applied to
reduce the principal amount of Class A Notes;
(ix) Ninth, to the Servicer, if OSHC, or an Affiliate
of OSHC, the Servicing Fee;
(x) Tenth, to the Certificate Distribution Account,
the remainder or such lesser amount as the Issuer (acting at the
direction of a majority of the Percentage Interests of the
Certificates), by prior written notice to the Indenture Trustee, elects
to have distributed to the Certificateholders; and
(xi) Eleventh, any remainder to remain on deposit in
the Note Account..
Section 3.3 Investment of Accounts.
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(a) Consistent with any requirements of the Code, all or
a portion of any Account held by the Indenture Trustee for the benefit of the
Owners shall be invested and reinvested by the Indenture Trustee in trust for
the benefit of the Owners, as directed in writing by the Servicer, in one or
more Eligible Investments. The bank serving as Indenture Trustee or any
Affiliate thereof may be the obligor on any investment which otherwise qualifies
as an Eligible Investment. No investment in any Account shall mature later than
the Business Day immediately preceding the next Payment Date (except that if
such Eligible Investment is an obligation of the Indenture Trustee, then such
Eligible Investment shall mature not later than such Payment Date).
(b) If any amounts are needed for disbursement from any
Account held by the Indenture Trustee and sufficient uninvested funds are not
available to make such disbursement, the Indenture Trustee shall cause to be
sold or otherwise converted to cash a sufficient amount of the investments in
such Account. No investments will be liquidated prior to maturity unless the
proceeds thereof are needed for disbursement.
(c) Subject to the terms of the Indenture, the Indenture
Trustee shall not in any way be held liable by reason of any insufficiency in
any Account held by the Indenture Trustee resulting from any loss on any
Eligible Investment included therein (except to the extent that the bank serving
as Indenture Trustee is the obligor thereon).
(d) If the Servicer shall have failed to give investment
directions to the Indenture Trustee as specified in section (a) above then the
Indenture Trustee shall invest in federal funds described in clause (a) of the
definition of "Eligible Investments" to be redeemable without penalty no later
than the Business Day immediately preceding the next Payment Date.
(e) All income or other gain from investments in any
Account held by the Indenture Trustee shall be deposited in such Account
immediately on receipt, and any loss resulting from such investments shall be
charged to such Account.
Section 3.4 Payment of Issuer Expenses.
(a) The Servicer shall promptly pay the amount of the fees and
expenses of the Indenture Trustee, Backup Servicer, the Owner Trustee and the
Custodian not covered or paid by Section 3.2.
(b) The Seller shall pay directly on the Closing Date the
reasonable fees and expenses of counsel to the Indenture Trustee, the Custodian,
the Backup Servicer and the Owner Trustee.
(c) Each of the Seller and Servicer accepts its obligations and
agrees to perform the duties assigned to it in the Trust Agreement and the
Indenture.
Section 3.5 Accounting and Directions by Servicer. By 12:00 noon, New
York time, on the Business Day preceding each Payment Date (or such earlier date
as shall be agreed by the Servicer and the Indenture Trustee), the Servicer
shall notify the Depositor, the Seller, the Indenture Trustee and the Class A
Note Agent, of the following information with respect to such Payment Date
(which notification may be given by facsimile:
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(1) The aggregate amount on deposit in the Note
Account as of the close of business on the preceding
Determination Date;
(2) The Class A Current Interest; and
(3) The Class A Note Principal Balance before
giving effect to payments on such Payment Date
Section 3.6 Reports by the Servicer to Class A Note Agent.
(a) On each Payment Date, the Servicer shall prepare and
transmit to the Owner Trustee, the Indenture Trustee and the Class A Note Agent
a report that contains the following:
(i) the amount of all distributions allocable to
principal on the Class A Notes;
(ii) the amount of all distributions allocable to
interest on the Class A Notes;
(iii) the amount of the distribution of any other
amounts with respect to the Owners of the Class A Notes;
(iv) all other amounts distributed pursuant to
Section 3.2;
(v) if the interest amount portion paid to the Owners
of the Class A Notes on such Payment Date was less than the Class A
Current Interest on such Payment Date, the Class A Carry Forward Amount
resulting therefrom;
(vi) the principal amount of the Class A Notes which
will be Outstanding after giving effect to any payment of principal on
such Payment Date and the Borrowing Base as of the close of business on
the second preceding Business Day;
(vii) the weighted average Receivable Rate of the
Receivables based on the Loan Balances of the Receivables as of the
close of business on the second preceding Business Day; and
(viii) any other information reasonably requested by
the Class A Note Agent.
(b) In addition, on each Payment Date, the Servicer will
furnish to the Owner Trustee, the Indenture Trustee and the Class A Note Agent,
together with the information described in subsection (a) preceding, the
following information:
(i) the number and aggregate principal balances of
Receivables (a) 30-59 days Delinquent, (b) 60-89 days Delinquent and
(c) 90 or more days Delinquent, as of the close of business on the last
day of the related Collection Period, (d) the numbers and aggregate
Loan Balances of all Receivables as of the last day of the related
Collection
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Period and (e) the percentage that each of the amounts represented by
clauses (a), (b) and (c) represent as a percentage of the respective
amounts in clause (d);
(ii) all Loan Repurchase Prices paid with respect to
the preceding Collection Period; and
(iii) the Loan Balance of any REO Property or Repo
Properties as of the last day of the related Collection Period,
together with such other information thereto as the Class A Note Agent
may reasonably request.
Section 3.7 Reports by Servicer.
(a) The Servicer shall report to the Indenture Trustee,
the Depositor, the Seller and the Class A Note Agent, with respect to the amount
on deposit in the Note Account and the identity of the investments included
therein, as any of them may from time to time reasonably request. Without
limiting the generality of the foregoing, the Servicer shall, at the reasonable
request of the Issuer, the Indenture Trustee, the Depositor, the Seller or the
Class A Note Agent transmit promptly to each of them copies of all accountings
of receipts in respect of the Receivables.
(b) The Indenture Trustee shall report to the Class A
Note Agent, the Servicer, the Seller and the Depositor with respect to any
written notices it may from time to time receive which provide an Authorized
Officer with actual knowledge that any of the statements set forth in Section
2.2(a) hereof are inaccurate.
Section 3.8 Sale of Receivables. The Issuer (acting with the consent of
a majority of the Percentage Interests of the Certificates) may from time to
time sell Receivables for a purchase price not less than an amount equal to (A)
the sum of (i) the Loan Balance of such Receivables as of the date of purchase;
(ii) all accrued and unpaid interest on such Receivables to the Payment Date or
Interim Payment Date (as defined below) on which such amount is included in
Available Funds; and (iii) all unreimbursed Delinquency Advances and Servicing
Advances related thereto or (B) such other price as the Indenture Trustee
(acting at the direction of the Class A Note Agent (acting at the direction of a
majority of the Percentage Interests of the Notes)) and the Issuer (acting at
the direction of a majority of the Percentage Interests of the Certificates)
shall approve. With prior written notice to the Indenture Trustee, the Issuer
may apply the proceeds of any such purchase on a date (an "Interim Payment
Date") prior to the succeeding Payment Date pursuant to Section 3.2 to the
repayment of some or all of the outstanding principal of the Class A Notes and
interest accrued thereon to such Interim Payment Date and to make payments to
the Certificateholders, provided that amounts sufficient in the sole judgment of
the Class A Note Agent (acting at the direction of the Required Purchasers (as
defined in the Note Purchase Agreement)) to make any payments of interest, fees
and expenses due on such succeeding Payment Date are already on deposit or are
deposited from the proceeds of such purchase in the Note Account.
Section 3.9 The Servicing Transition Reserve Account.
(a) On the Closing Date, the Servicer shall deposit
$175,000 in the Servicing Transition Account.
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(b) The Indenture Trustee shall release amounts on
deposit in the Servicing Transition Account to the successor Servicer to OSHC,
if any, from time to time upon the receipt of written certification of such
successor Servicer that OSHC has not reimbursed to such successor Servicer costs
and expenses incurred by such successor Servicer pursuant to the last sentence
of Section 6.1. Each such certification shall list such reimbursable expenses in
reasonable detail..
(c) On the earlier of (i) the date that this Agreement is
terminated and (ii) the date the long-term unsecured senior debt rating of OHC
is rated at least "Baa3" by Moody's and "BBB-" by Standard & Poor's, the
Indenture Trustee shall withdraw (or direct the holder of the applicable account
to withdraw) all amounts on deposit in the Servicing Transition Reserve Account
and pay such amounts to OAC and at such time the Servicing Transition Account
shall be closed.
END OF ARTICLE III
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ARTICLE IV
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 4.1 The Servicer.
(a) The Servicer, as independent contract servicer,
shall, for the period described in Section 4.19, service and administer the
Receivables and shall have full power and authority, acting alone (except as
provided by Section 5.5), to do any and all things in connection with such
servicing and administration which the Servicer may deem necessary or desirable
and consistent with the terms of this Agreement, the terms of the Receivables
and applicable law. The Servicer, upon receipt of the consent of the Majority
Noteholders (such consent not to be unreasonably withheld) may enter into
Subservicing Agreements for any servicing and administration of Receivables with
any institution which is in compliance with the laws of each state necessary to
enable it to perform its obligations under such Subservicing Agreement. The
Servicer shall give written notice to the Indenture Trustee of the appointment
of any Subservicer. Any such Subservicing Agreement shall be consistent with and
not violate the provisions of this Agreement. The Servicer shall be entitled to
terminate any Subservicing Agreement in accordance with the terms and conditions
of such Subservicing Agreement and either itself directly service the related
Receivables or enter into a Subservicing Agreement with a successor Subservicer
which qualifies hereunder.
(b) Notwithstanding any Subservicing Agreement or 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 primarily
liable for the servicing and administering of the Receivables 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 Receivables. For purposes of this Agreement, the Servicer
shall be deemed to have received payments on Receivables when the Subservicer
has received such payments. The Servicer shall be entitled to enter into any
agreement with a Subservicer for indemnification of the Servicer by such
Subservicer, and nothing contained in this Agreement shall be deemed to limit or
modify such indemnification.
(c) Any Subservicing Agreement that may be entered into
and any transactions or services relating to the Receivables involving a
Subservicer in its capacity as such and not as an originator shall be deemed to
be between the Subservicer and the Servicer alone, and the Indenture Trustee and
Owners shall not be deemed parties thereto and shall have no claims, rights,
obligations, duties or liabilities with respect to the Subservicer except as set
forth in Section 4.1(d). The Servicer shall be solely liable for all fees owed
by it to any Subservicer irrespective of whether the Servicer's compensation
pursuant to this Agreement is sufficient to pay such fees.
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(d) In the event the Servicer shall for any reason no
longer be the Servicer (including by reason of a Servicer Termination Event),
the Backup Servicer or the designee of the Indenture Trustee shall thereupon
assume all of the rights and obligations of the Servicer under each Subservicing
Agreement that the Servicer may have entered into, unless the Indenture Trustee
or the Backup Servicer elects to terminate any Subservicing Agreement. Any fee
payable in connection with such a termination will be payable by the outgoing
Servicer. If the Indenture Trustee or the Backup Servicer does not terminate a
Subservicing Agreement, the Backup Servicer, the Indenture Trustee or the
successor servicer for the Indenture Trustee shall be deemed to have assumed all
of the Servicer's interest therein and to have replaced the Servicer as a party
to each Subservicing Agreement to the same extent as if the Subservicing
Agreements had been assigned to the assuming party, except that the Servicer
shall not thereby be relieved of any liability or obligations under the
Subservicing Agreements with regard to events that occurred prior to the date
the Servicer ceased to be the Servicer hereunder. The Servicer, at its expense
and without right of reimbursement therefor, shall, upon the request of the
Indenture Trustee or the Backup Servicer, deliver to the assuming party all
documents and records relating to each Subservicing Agreement and the
Receivables then being serviced and an accounting of amounts collected and held
by it and otherwise effect the orderly and efficient transfer of the
Subservicing Agreements to the assuming party.
(e) Consistent with the terms of this Agreement, the
Servicer may waive, modify or vary any term of any Receivable or consent to the
postponement of strict compliance with any such term or in any manner grant
indulgence to any Obligor if in the Servicer's good faith determination such
waiver, modification, postponement or indulgence is not materially adverse to
the interests of the Owners, provided, however, that (unless the Obligor is in
default with respect to the Receivable, or such default is, in the judgment of
the Servicer, imminent) the Servicer may not permit any modification with
respect to any Receivable that would change the Receivable Rate, forgive the
payment of any principal or interest (unless in connection with the liquidation
of the related Receivable) or extend, whether pursuant to one or more
extensions, the final maturity date on the Receivable more than twelve months
beyond the final maturity date of the Receivable as of the Cut-Off Date or
Additional Cut-Off Date with respect to such Receivable. Without limiting the
generality of the foregoing, the Servicer shall continue, and is hereby
authorized and empowered to execute and deliver on behalf of the Indenture
Trustee and the Issuer, all instruments of satisfaction or cancellation, or of
partial or full release, discharge and all other comparable instruments with
respect to the Receivables and with respect to the Manufactured Homes and the
Mortgaged Properties. If reasonably required by the Servicer, the Indenture
Trustee shall furnish the Servicer with limited powers of attorney and other
documents necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties under this Agreement.
Notwithstanding anything to the contrary contained herein, the
Servicer, in servicing and administering the Receivables, shall employ or cause
to be employed procedures (including collection, repossession and sale,
foreclosure and REO Property/Repo Property management procedures) and exercise
the same care that it customarily employs and exercises in servicing and
administering Mortgage Loans and Contracts for its own account, and shall
otherwise service and administer the Receivables in accordance with accepted
servicing practices of prudent lending institutions servicing loans similar to
the Receivables in the related jurisdictions and giving due consideration to the
Owners' reliance on the Servicer (the "Servicing Standard").
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(f) On and after such time as the Indenture Trustee
receives the resignation of, or notice of the removal of, the Servicer from its
rights and obligations under this Agreement, and with respect to resignation
pursuant to Section 5.4, after receipt by the Indenture Trustee of the Opinion
of Counsel required pursuant to Section 5.4, the Backup Servicer or the
Indenture Trustee's designee shall assume all of the rights and obligations of
the Servicer, subject to Section 6.2. Upon any such resignation or removal, the
Servicer shall, upon request of the Indenture Trustee but at the expense of the
Servicer, deliver to the Backup Servicer or the Indenture Trustee all documents
and records relating to the Receivables and an accounting of amounts collected
and held by the Servicer and otherwise effect the orderly and efficient transfer
of servicing rights and obligations to the assuming party.
(g) The Servicer shall deliver a list of Servicing
Officers to the Indenture Trustee on or before the Closing Date and shall revise
such list from time to time, as appropriate, and shall deliver all revisions
promptly to the Indenture Trustee.
Section 4.2 Collection of Certain Receivable Payments.
(a) The Servicer shall make reasonable efforts consistent
with the Servicing Standards to collect all payments called for under the terms
and provisions of the Receivables and shall follow such collection procedures as
shall be consistent with the Servicing Standard and without limiting the
generality of the foregoing, the Servicer may in its discretion (i) waive any
prepayment penalty or late payment charge or any assumption fees or other fees
which may be collected in the ordinary course of servicing such Receivable and
(ii) arrange with an Obligor a schedule for the payment of interest, principal
and other amounts due and unpaid; provided that such arrangement is consistent
with the Servicer's policies with respect to the mortgage loans and contracts it
owns or services and with Section 4.1; provided, further, that notwithstanding
such arrangement such Receivables will be included in the monthly information
delivered by the Servicer to the Indenture Trustee pursuant to Section 4.16.
(b) Within two Business Days following receipt thereof
the Servicer shall instruct Lock-Box Banks to transfer into the Note Account the
following payments and collections received or made by it with respect to each
Receivable (without duplication):
(i) all payments received after the applicable
Cut-Off Date or Additional Cut-Off Date on account of principal on the
Receivables, including any amounts received pursuant to Section 3.8 and
any Delinquency Advances;
(ii) all payments received after the applicable
Cut-Off Date or Additional Cut-Off Date on account of interest on the
Receivables, including any amounts received pursuant to Section 3.8 and
any Delinquency Advances;
(iii) all Net Liquidation Proceeds net of related
Foreclosure Profits;
(iv) all Insurance Proceeds;
(v) any amounts payable in connection with the
repurchase of any Receivable pursuant to Sections 2.1, 2.2, and 4.15;
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(vi) all Released Mortgaged Property Proceeds;
(vii) to the extent not set forth above, any amount
required to be deposited in the Note Account pursuant to Sections
3.3(e) or 4.6 or any other provision of this Agreement; and
(viii) any amounts deposited by the Issuer in the
Note Account pursuant to the last sentence of this Section 4.2(b).
The foregoing requirements respecting deposits to the Note Account are
exclusive, it being understood that, without limiting the generality of the
foregoing, the Servicer need not deposit, or instruct the Lock-Box Banks to
deposit, in the Note Account amounts representing Foreclosure Profits, fees
(including annual fees), late charge penalties or other amounts to which the
Servicer is entitled pursuant hereto or other amounts received by the Servicer
for the accounts of Obligors for application toward the payment of taxes,
insurance premiums, assessments and similar items. On any day, the Issuer may
deposit such amounts as it may elect, in its sole discretion, in the Note
Account.
(c) All funds in the Note Account shall be invested as
provided in Section 3.3.
(d) Each of the Servicer and Seller will instruct all
Obligors to cause all Collections of Receivables to be deposited directly to a
Lock-Box Account with a Lock-Box Bank. Each Lock-Box Account will be maintained
in the name of the Indenture Trustee, in trust for, among others, the Indenture
Trustee. Neither the Servicer nor Seller will add or terminate any bank as a
Lock-Box Bank from those listed in Schedule III or make any change in its
instructions to Obligors regarding payments to be made in respect of the
Receivables or payments to be made to any Lock-Box Bank, unless the Indenture
Trustee and the Class A Note Agent shall have received notice of, and the Class
A Note Agent shall have consented in writing to, such addition, termination or
change and duly executed copies of agreements with each new Lock-Box Bank. If
there shall be any dispute as the application of funds in the Lock-Box Account
allocable to the Receivables among any of the Seller, the Servicer, the
Depositor, the Owners or the Class A Note Agent, the Indenture Trustee shall
follow the instructions of the Class A Note Agent with respect thereto.
Section 4.3 Withdrawals from the Note Account. The Indenture Trustee
and, to the extent provided by the last sentence of this Section 4.3, the
Servicer shall withdraw or cause to be withdrawn funds from the Note Account for
the following purposes pursuant to the written direction of the Servicer:
(a) to make distributions pursuant to Section 3.2;
(b) pursuant to the last sentence of this Section 4.3, to
reimburse the Servicer for any unreimbursed Servicing Advances or Delinquency
Advances;
(c) to withdraw any amount received from a Obligor that
is recoverable and sought to be recovered as a voidable preference by a trustee
in bankruptcy pursuant to the United States Bankruptcy Code in accordance with a
final, nonappealable order of a court having competent jurisdiction;
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(d) subject to Section 3.3 hereof, to make investments in
Eligible Investments;
(e) to withdraw any funds deposited in the Note Account
that were not required to be deposited therein or were deposited therein in
error and to pay such funds to the appropriate Person;
(f) to withdraw funds necessary for the conservation and
disposition of REO Property or Repo Property pursuant to Section 4.6 to the
extent not advanced by the Servicer or for any other purpose permitted by any
other provision hereof; and
(g) to clear and terminate the Note Account upon the
termination of this Agreement and to pay any amounts remaining therein to the
Certificate Distribution Account.
The Servicer shall be permitted to withdraw amounts from the Note Account for
the purposes set forth in clauses (c), (d), (e), and (f) and to reimburse itself
for any Servicing Advances or Delinquency Advances previously made by the
Servicer, which Servicing Advances or Delinquency remain unreimbursed to the
Servicer, out of Related Proceeds or, if such Servicing Advances or Delinquency
Advances have been determined by the Servicer to have become Non-Recoverable
Advances, out of any funds on deposit in the Note Account pursuant to clause
(b).
Section 4.4 Maintenance of Hazard Insurance; Property Protection
Expenses.
(a) Standard Hazard Insurance. Except as otherwise
provided in this Section 4.4(a), the Servicer shall cause to be maintained with
respect to each Contract and Mortgage Loan one or more Standard Hazard Insurance
Policies that provide, at a minimum, the same coverage as that provided by a
standard form fire and extended coverage insurance policy that is customary for
manufactured housing or residential real property (as applicable), providing
coverage in an amount at least equal to the lesser of (1) the maximum insurable
value of the related Manufactured Home or Mortgaged Property or (2) the
principal balance due from the Obligor under such Contract or Mortgage Loan;
provided, however, that in any event the amount of coverage provided by each
Standard Hazard Insurance Policy must be sufficient to avoid the application of
any co-insurance clause contained therein. As part of its collection
responsibilities, the Servicer shall proceed to collect the premiums due on the
Standard Hazard Insurance Policies from the Obligors in accordance with the
degree of skill and care that is customarily used for such purpose in the
manufactured home loan servicing industry (in the case of Contracts) and the
residential mortgage loan servicing industry (in the case of Mortgage Loans).
Each Standard Hazard Insurance Policy caused to be maintained by the Servicer
shall contain a standard loss payee clause in favor of the Servicer and its
successors and assigns. Any amounts received under any such policies shall be
deposited initially into the Note Account within two Business Days of receipt.
In lieu of causing individual Standard Hazard Insurance Policies to be
maintained with respect to each Manufactured Home and Mortgaged Property
pursuant to subsection (a) of this Section 4.4, the Servicer may, and with
respect to each Repo Property and REO Property shall, maintain one or more
blanket insurance policies, each issued by a Qualified Insurer, covering losses
on the Obligors' interests in the Receivables relating to such Manufactured
Homes and Mortgaged Properties resulting from the absence or insufficiency of
such individual Standard
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Hazard Insurance Policies. The Servicer shall pay the premium for any such
policy on the basis described therein and shall pay any deductible amount with
respect to claims under such policy relating to the Receivables covered thereby.
All amounts collected by the Servicer under any such blanket policy and any
payments by the Servicer of deductible amounts thereunder, in each case relating
to an asset covered thereby, shall be deposited into the Note Account within two
Business Days of Receipt, after payment to (or retention by) the Servicer of all
Insured Expenses and Liquidation Expenses incurred by it with respect to the
Manufactured Home or Mortgaged Property to which such recovery relates, as well
as the amount of any Servicing Advances or Delinquency Advances made by the
Servicer with respect to the related Receivable that have not been reimbursed to
the Servicer.
(b) Primary Mortgage Insurance. The Servicer must
maintain a Primary Mortgage Insurance Policy in full force and effect on each
Mortgage Loan, if any, which is identified in the Schedule of Receivables as
being covered by a Primary Mortgage Insurance Policy. Any such Primary Mortgage
Insurance Policy must insure the portion of the Loan Balance of the related
Mortgage Loan that exceeds 75% of the value of the related Mortgaged Property
(as set forth in the appraisal obtained in connection with origination of the
Mortgage Loan) (the Mortgaged Property's "Initial Value") unless such Primary
Mortgage Insurance coverage has been waived in writing by the Seller at the time
it purchases the Mortgage Loan or such Primary Mortgage Insurance is canceled
under the circumstances described below. If a covered Mortgage Loan provides for
negative amortization or the potential for negative amortization, the Primary
Mortgage Insurance Policy must also insure any increase in the Loan Balance of
the Mortgage Loan from the original principal balance of the related Mortgage
Note. In the event that the rating assigned by any Rating Agency to the
claims-paying ability of any related Mortgage Insurer is reduced, the Servicer
will use its best efforts to replace each Primary Mortgage Insurance Policy
issued by the downgraded Mortgage Insurer with a new Primary Mortgage Insurance
Policy issued by an insurer whose claims-paying ability is acceptable to the
Note Agent. The premium for any replacement policy shall not exceed the premium
for any replaced policy.
The Servicer may cancel the Primary Mortgage Insurance Policy maintained with
respect to any Mortgage Loan at the related Mortgagor's request if (subject to
applicable law) the following conditions are met:
(1) The current Mortgage Loan-to-Value Ratio of the Mortgage
Loan must be 80% or less;
(2) The Mortgage Loan may not have been 30 days or more
delinquent at any time within the preceding twelve months; and
(3) There may not have been any other default under the terms
of the Mortgage Loan at any time during the preceding twelve months.
The Servicer must take all steps necessary to ensure the payment by
each Mortgage Insurer of the maximum benefits available under the terms of the
related Primary Mortgage Insurance Policy. The Servicer must work diligently
with the Mortgage Insurer to determine whether such insurer will settle a claim
under a Primary Mortgage Insurance Policy by taking
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title to the related Mortgaged Property or in some other manner. Upon receipt of
any proceeds of a Primary Mortgage Insurance Policy, the Servicer must deposit
such proceeds into the Note Account within two Business Days of receipt.
Section 4.5 Fidelity Bond. The Servicer shall keep in force throughout
the term of this Agreement a policy or policies of insurance issued by a
Qualified Insurer covering errors and omissions in the performance of its
obligations as Servicer hereunder, including failure to maintain insurance as
required by this Agreement, and a fidelity bond covering the Servicer's
performance under this Agreement. Such policy or policies and bond shall be in
such form and amount as is generally customary among Persons that service a
portfolio of manufactured housing installment sales contracts and installment
loans having an aggregate principal amount of $100 million or more and which
Persons are generally regarded as servicers acceptable to institutional
investors. The Servicer shall cause to be delivered to the Indenture Trustee and
the Class A Note Agent a certificate of insurance with respect to such fidelity
bond and insurance policy.
Section 4.6 Management and Realization Upon Defaulted Receivables. The
Servicer shall manage, conserve, protect and operate each REO Property and Repo
Property solely for the purpose of its prudent and prompt disposition and sale.
The Servicer shall, either itself or through an agent selected by the Servicer,
manage, conserve, protect and operate the REO Property or Repo Property in the
same manner that it manages, conserves, protects and operates other foreclosed
property for its own account, and in the same manner that similar property in
the same locality as the REO Property or Repo Property is managed. The Servicer
shall attempt to sell the same (and may temporarily rent the same) on such terms
and conditions as the Servicer deems to be in the best interest of the Owners.
The Servicer shall cause to be deposited, within one Business Day of
receipt thereof, in the Note Account, all revenues received with respect to the
related REO Property or Repo Property and shall retain, or cause the Indenture
Trustee to withdraw therefrom, funds necessary for the proper operation,
management and maintenance of the REO Property or Repo Property and the fees of
any managing agent acting on behalf of the Servicer.
The disposition of REO Property and Repo Property shall be carried out
by the Servicer for cash at such price, and upon such terms and conditions, as
the Servicer deems to be in the best interest of the Owners and, as soon as
practicable thereafter, the expenses of such sale shall be paid. The net cash
proceeds of sale of the REO Property or Repo Property shall be promptly
deposited in the Note Account in accordance with Section 4.2, net of Foreclosure
Profits, for distribution to the Owners in accordance with Section 3.2.
The Servicer shall foreclose upon or otherwise comparably convert to
ownership Mortgaged Properties or Manufactured Homes securing such of the
Receivables as come into and continue in default when no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 4.1 subject to the provisions contained in the last paragraph of this
Section.
In the event that title to any Mortgaged Property or Manufactured Homes
is acquired in foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be issued to the
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Servicer or its nominee or as otherwise agreed among the Note Agent, the
Servicer and the Indenture Trustee in writing.
Section 4.7 Indenture Trustee to Cooperate. Upon any payment of the
outstanding principal balance thereof in full or other satisfaction of a
Receivable in accordance with the Credit and Collection Policy, the Servicer is
authorized to execute, pursuant to the authorization contained in Section
4.1(e), an instrument of satisfaction regarding the related Mortgage or
Contract, which instrument of satisfaction shall be recorded by the Servicer if
required by applicable law and be delivered to the Person entitled thereto. It
is understood and agreed that no expenses incurred in connection with such
instrument of satisfaction or transfer shall be reimbursed from amounts
deposited in the Note Account. If the Indenture Trustee or the Custodian is
holding the Files, from time to time and as appropriate for the servicing or
foreclosure of any Receivable, the Indenture Trustee or the Custodian, as the
case may be, shall, upon request of the Servicer and delivery to the Indenture
Trustee or the Custodian, as the case may be, of a Request for Release, in the
form attached as Exhibit D to the Custodial Agreement, signed by a Servicing
Officer, release the related File to the Servicer, and the Indenture Trustee
shall execute such documents in the forms provided by the Servicer, as shall be
necessary for the prosecution of any such proceedings or the taking of other
servicing actions. Such Request for Release shall obligate the Servicer to
return the File to the Indenture Trustee or the Custodian when the need therefor
by the Servicer no longer exists unless the Receivable shall be liquidated, in
which case, upon receipt of a certificate of a Servicing Officer similar to that
herein above specified, the Request for Release shall be released by the
Indenture Trustee or the Custodian holding such Request for Release to the
Servicer.
In order to facilitate the foreclosure of the Mortgage securing any
Receivable that is in default following recordation of the related Assignment of
Mortgage in accordance with the provisions hereof, the Indenture Trustee shall,
if so requested in writing by the Servicer, execute an appropriate assignment in
the form provided to the Indenture Trustee by the Servicer to assign such
Receivable for the purpose of collection to the Servicer (any such assignment
shall unambiguously indicate that the assignment is for the purpose of
collection only) and, upon such assignment, such assignee for collection will
thereupon bring all required actions in its own name and otherwise enforce the
terms of the Receivable and deposit or credit the Net Liquidation Proceeds,
exclusive of Foreclosure Profits, received with respect thereto in the Note
Account. In the event that all delinquent payments due under any such Receivable
are paid by the Obligor and any other defaults are cured then the assignee for
collection shall promptly reassign such Receivable to the Indenture Trustee and
return it to the place where the related File was being maintained.
Section 4.8 Servicing Compensation; Payment of Certain Expenses by
Servicer. The Servicer shall be entitled to receive the Servicing Fee as
compensation for its services in connection with servicing the Receivables.
Moreover, additional servicing compensation in the form of prepayment penalties,
late payment charges, bad check charges or assumption fees or other receipts not
required to be deposited in the Note Account, including, without limitation,
Foreclosure Profits and, subject to Section 4.2(b), investment income on the
Note Account shall be retained by the Servicer. The Servicer shall be required
to pay all expenses incurred by it in connection with its activities hereunder
(including payment of all other fees and expenses not
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expressly stated hereunder to be for the account of the Issuer or the Owners)
and shall not be entitled to reimbursement therefor except as specifically
provided herein.
Section 4.9 Annual Statement as to Compliance.
(a) The Servicer will deliver to the Indenture Trustee on
or before the last day of the fourth month following the end of the Servicer's
fiscal year ended September 30, beginning in January, 2004, an Officer's
Certificate stating that (i) a review of the activities of the Servicer during
the preceding fiscal year (or such shorter period as is applicable in the case
of the first report) and of its performance under this Agreement has been made
under such officer's supervision and (ii) to the best of such officer's
knowledge, based on such review, the Servicer has fulfilled all its obligations
under this Agreement throughout such fiscal year in all material respects or, if
there has been a default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status thereof. The
Servicer shall promptly notify the Seller and the Indenture Trustee upon any
change in the basis on which its fiscal year is determined.
(b) The Servicer shall deliver to the Indenture Trustee,
promptly after having obtained knowledge thereof, but in no event later than
five Business Days thereafter, written notice by means of an Officer's
Certificate of any event which, with the giving of notice or the lapse of time
or both, would become a Servicer Termination Event.
Section 4.10 Annual Servicing Report. On or before the last day of the
fourth month following the end of the Servicer's fiscal year ended September 30,
beginning in January, 2003, the Servicer, at its expense, shall cause a firm of
independent public accountants to furnish a letter or letters to the Depositor
and the Indenture Trustee to the effect that such firm has, with respect to the
Servicer's overall servicing operations, examined such operations in accordance
with the requirements of the Uniform Single Attestation Program for Mortgage
Bankers, and stating such firm's conclusions relating thereto.
Section 4.11 Access to Certain Documentation and Information Regarding
the Receivables. The Servicer shall provide to the Indenture Trustee, the Backup
Servicer and the Class A Note Agent access to the documentation regarding the
Receivables, such access being afforded without charge but only upon reasonable
request and during normal business hours at the offices of the Servicer. Nothing
in this Section shall derogate from the obligation of the Servicer to observe
any applicable law prohibiting disclosure of information regarding the Obligors
and the failure of the Servicer to provide access as provided in this Section as
a result of such obligation shall not constitute a breach of this Section.
Section 4.12 Reports of Foreclosures and Abandonments of Mortgaged
Properties,. The Servicer shall make reports of foreclosures and abandonments of
any Receivable for each year beginning with the year 2003. The Servicer shall
file reports relating to each instance occurring during the previous calendar
year in which the Servicer (i) on behalf of the Issuer acquires an interest in
any Receivable through foreclosure or other comparable conversion in full or
partial satisfaction of a Receivable or (ii) knows or has reason to know that
any Receivable has been abandoned.
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Section 4.13 Assumption Agreements. When a Mortgaged Property or
Manufactured Home has been or is about to be conveyed by the Obligor, to the
extent it has knowledge of such conveyance or prospective conveyance, the
Servicer is authorized to enter into an assumption and modification agreement
with the person to whom such property has been or is about to be conveyed,
pursuant to which either (i) such person shall become liable under the Contract
or Mortgage Note and related Mortgage, and the Obligor shall remain liable
thereon or (ii) such person is substituted as Obligor and becomes liable under
the Contract or Mortgage Note and related Mortgage. The Servicer shall notify
the Indenture Trustee that any such substitution or assumption agreement has
been completed by forwarding to the Custodian the original of such substitution
or assumption agreement, which original shall be added by the Custodian to the
related File and shall, for all purposes, be considered a part of such File to
the same extent as all other documents and instruments constituting a part
thereof. In connection with any assumption or substitution agreement entered
into pursuant to this Section, the Servicer shall not change the Receivable Rate
or the Monthly Payment, defer or forgive the payment of principal or interest,
reduce the outstanding principal amount or extend the final maturity date on
such Receivable. Any fee collected by the Servicer for consenting to such
conveyance or entering into such modification shall be retained by or paid to
the Servicer as additional servicing compensation.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Receivable by operation of law or any assumption which the Servicer may be
restricted by law from preventing, for any reason whatsoever.
Section 4.14 Payment of Taxes. Insurance and Other Charges. With
respect to each Receivable, the Servicer shall not be required to maintain
records relating to payment of taxes or insurance other than in connection with
Servicing Advances made in respect thereof.
Section 4.15 Optional Purchase of Defaulted Receivables. The Servicer,
in its sole discretion, shall have the right, but not an obligation, to elect
(by written notice sent to the Indenture Trustee) to purchase for its own
account from the Issuer in the manner and at the price specified in Section 2.4
any Receivable which is 60 days or more past due, any Defaulted Receivable or
any Receivable which previously was but is not then an Eligible Receivable other
than because of clause (v) of the definition of such term. The Loan Purchase
Price for any Receivable purchased hereunder shall be deposited in the Note
Account. The Indenture Trustee, upon receipt of such deposit, shall release or
cause to be released to the purchaser of such Receivable the related File and
shall a release of lien in the form of Exhibit D hereto and the purchaser of
such Receivable shall succeed to all the Issuer's right, title and interest in
and to such Receivable and all security and documents related thereto. Such
assignment shall be an assignment outright and not for security. The purchaser
of such Receivable shall thereupon own such Receivable, and all security and
documents, free of any further obligation to the Indenture Trustee or the Owners
with respect thereto.
Section 4.16 Statements. Not later than 12:00 noon, New York time, on
the Business Day prior to each Payment Date, the Servicer shall deliver to the
Indenture Trustee and the Backup Servicer a monthly report (the "Monthly
Report") in a form and format (which may be an electronic form) mutually
agreeable to the Servicer, the Backup Servicer and the Indenture Trustee
containing the information set forth in Exhibit A hereto (with such changes the
Class A
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Note Agent may approve from time to time) as to each Receivable as of the end of
the preceding Collection Period and such other information as the Indenture
Trustee or the Backup Servicer shall reasonably require, provided that each such
Monthly Report shall contain a detailed calculation (such calculation to be
performed by the Issuer) of the Borrowing Base as of latest practicable date,
but in any event as of a date no earlier than the third Business Day prior to
such Payment Date, showing, among other things, deductions for each type of
overconcentration set forth in the definition of Excluded Receivables Balance
and for any failure to satisfy eligibility criteria. Each Monthly Report shall
be an Officer's Certificate.
Section 4.17 Administrative Duties of the Issuer. The Servicer will
monitor all of the administrative duties of the Issuer pursuant to the Operative
Documents, and advise the Issuer of all actions required to be taken pursuant
thereto. In this regard, the Servicer will prepare or cause to be prepared for
execution and deliver to the Issuer any and all forms, reports, notices or other
documents required of the Issuer pursuant to the Operative Documents. The Backup
Servicer shall have no responsibility for any duties under this Section 4.17;
the Depositor shall assume the duties of the Servicer under this Section 4.17
upon any termination of the Servicer pursuant to Section 6.1.
Section 4.18 Backup Servicer.
(a) Prior to assuming any of the Servicer's rights and
obligations hereunder the Backup Servicer shall only be responsible to perform
those duties specifically imposed upon it by the provisions hereof and shall
have no obligations or duties under any agreement to which it is not a party,
including but not limited to the various agreements named herein. Such duties
generally relate to following the provisions herein which would permit the
Backup Servicer to assume some or all of the Servicer's rights and obligations
hereunder with reasonable dispatch, following notice.
The Backup Servicer, prior to assuming any of the Servicer's duties
hereunder, may not resign hereunder unless it gives not less than 60 days' prior
written notice to the Class A Note Agent, the Servicer and the Seller. No such
resignation shall be effective until a successor Backup Servicer shall have been
appointed pursuant hereto.
In the event of the resignation of the Backup Servicer, the Servicer
shall appoint a successor Backup Servicer reasonably acceptable to the Class A
Note Agent and the Seller. If no Backup Servicer shall have been appointed on
the scheduled date of the Backup Servicer's resignation, the Backup Servicer may
petition a court of competent jurisdiction to appoint any established housing
and home finance institution, bank or other mortgage loan or contract servicer
having a net worth of not less than $25,000,000 as the successor to the Backup
Servicer hereunder.
The Backup Servicer shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if the
repayment of such funds or adequate written indemnity against such risk or
liability is not reasonably assured to it in writing prior to the expenditure or
risk of such funds or incurrence of financial liability. Notwithstanding any
provision to the contrary, the Backup Servicer, in its capacity as such, and not
in its capacity as Successor Servicer, shall not
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be liable for any obligation of the Servicer contained in this Agreement, and
the parties shall look only to the Servicer to perform such obligations.
(b) The Servicer shall have no liability, direct or
indirect, to any party, for the acts or omissions of the Backup Servicer,
whenever such acts or omissions occur whenever such liability is imposed.
(c) Notwithstanding anything to the contrary herein, the
Class A Note Agent shall have the right to remove the Backup Servicer for cause
and replace the Backup Servicer by giving 45 days written notice to the Backup
Servicer. In the event that the Class A Note Agent exercises its right to remove
and replace JPMorgan Chase Bank as Backup Servicer, JPMorgan Chase Bank shall
have no further obligation to perform the duties of the Backup Servicer under
this Agreement.
(d) The Servicer shall provide monthly, or as otherwise
requested, to the Backup Servicer, or its agent, information on the Receivables
sufficient to enable the Backup Servicer to assume the responsibilities as
successor servicer and collect on the Receivables.
(e) Except as provided in this Agreement, the Backup
Servicer may accept and reasonably rely on all accounting, records and work of
the Servicer without audit, and the Backup Servicer shall have no liability for
the acts or omissions of the Servicer. If any error, inaccuracy or omission
(collectively, "Errors") exists in any information received from the Servicer,
and such Errors should cause or materially contribute to the Backup Servicer
making or continuing any Errors (collectively, "Continued Errors"), the Backup
Servicer shall have no liability for such Continued Errors; provided, however,
that this provision shall not protect the Backup Servicer against any liability
that would otherwise be imposed by reason of willful misconduct, bad faith or
gross negligence in discovering or correcting any Error or in the performance of
its or their duties hereunder or under this Agreement.
(f) The Backup Servicer and its officers, directors,
employees, representatives and agents shall be indemnified by the Servicer from
and against all claims, damages, losses or expenses incurred by the Backup
Servicer (including reasonable attorney's fees and expenses) arising out of
claims asserted against the Backup Servicer by third parties on any matter
arising out of this Agreement to the extent the act or omission giving rise to
the claim relates to an act or omission of the Servicer, the Seller, the
Depositor or any of their Affiliates and accrues before the date on which the
Backup Servicer assumes the duties of Servicer hereunder, and all claims,
expenses, obligations, liabilities, losses, damages, injuries, penalties, stamp
or other similar taxes, actions, suits, judgments, reasonable costs and expenses
(including reasonable attorney's and agent's fees and expenses) of whatever kind
or nature regardless of their merit, demanded, asserted or claimed against the
Backup Servicer directly or indirectly relating to, or arising from, claims
against the Backup Servicer by reason of its participation in the transactions
contemplated hereby, including without limitation all reasonable costs required
to be associated with claims for damages to persons or property, and reasonable
attorneys' and consultants' fees and expenses and court costs except for any
claims, damages, losses or expenses arising from the Backup Servicer's own gross
negligence, bad faith or willful misconduct. The obligations of the Servicer
under this Section 4.18(g) shall survive the satisfaction and discharge of this
Agreement or the earlier resignation or removal of the Backup Servicer
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In the absence of bad faith on the part of the Backup Servicer, the
Backup Servicer may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or pinions
furnished to the Backup Servicer which conform to the requirements of this
Agreement.
The Backup Servicer shall not be liable for any error of judgment made
in good faith by an officer or officers of the Backup Servicer, unless it shall
be conclusively determined by a court of competent jurisdiction that the Backup
Servicer was grossly negligent in ascertaining the pertinent facts.
Whenever in the administration of the provisions of this Agreement the
Backup Servicer shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering any action to be taken hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of gross negligence or bad faith on the part of
the Backup Servicer, be deemed to be conclusively proved and established by a
certificate signed by one of the Servicer's officers, and delivered to the
Backup Servicer and such certificate, in the absence of gross negligence or bad
faith on the part of the Backup Servicer, shall be full warrant to the Backup
Servicer of any action taken, suffered or omitted by it under the provisions of
this Agreement upon the faith thereof.
The Backup Servicer, in its capacity as such, may consult with counsel
and the advice or any opinion of counsel shall be full and complete
authorization and protection in respect of any action taken or omitted by it
hereunder in good faith and in accordance with such advice or opinion of
counsel.
The Backup Servicer, in its capacity as such, shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
entitlement order, approval or other paper or document.
The Backup Servicer, in its capacity as such, may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or by
or through agents, attorneys, custodians or nominees appointed with due care,
and shall not be responsible for any willful misconduct or negligence on the
part of any agent, attorney, custodian or nominee so appointed.
Section 4.19 Retention of Servicer. OSHC hereby covenants and agrees to
act as Servicer under this Agreement until such time as the Class A Note Agent,
acting at the direction of a majority of the Percentage Interests in of the
Notes, delivers notice to OSHC that OSHC has been terminated as Servicer
hereunder. The Class A Note Agent may deliver such notice at any time and for
any reason. OSHC hereby agrees that, as of the date hereof and until and unless
the Class A Note Agent delivers notice of termination, OSHC shall be bound to
continue as the Servicer subject to and in accordance with the other provisions
of this Agreement.
Section 4.20 Advances by the Servicer.
Not later than the close of business on the Business Day prior to each
Payment Date, the Servicer may, at its option, remit to the Indenture Trustee
for deposit in the Note Account an amount to be distributed on such Payment Date
pursuant to Section 3.2, equal to the amount due and payable on each Receivable
through the related Payment Date, but not received as of the
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close of business on the last day of the related Collection Period or, with
respect to any newly originated Receivable, interest accrued thereon for the
period from the date of origination to the Due Date related to such Payment
Date; such amount being defined herein as the "Delinquency Advance".
Notwithstanding anything herein to the contrary, no Delinquency Advance shall be
made hereunder if the Servicer determines in its good faith business judgment,
that such Delinquency Advance would, if made, constitute a Nonrecoverable
Advance.
Section 4.21 Servicing Advances. If any Obligor is in default in the
payment of premiums on its Standard Hazard Insurance Policy or Policies or if
any Obligor is in default in the payment of personal property taxes or real
estate taxes due in respect of its Manufactured Home or Mortgaged Property, the
Servicer may pay such premiums or taxes out of its own funds. If any Obligor is
in default in the payment of premiums on its Standard Hazard Insurance Policy or
Policies and coverage is not provided in respect of the related Asset under a
blanket policy maintained by the Servicer, or if any Obligor is in default in
the payment of personal property taxes or real estate taxes due in respect of
its Manufactured Home or Mortgaged Property, the Servicer may pay such premiums
or taxes out of its own funds in a timely manner, as Servicing Advances, unless
the Servicer, in its reasonable judgment, determines that any such Servicing
Advance would be a Non-Recoverable Advance. In addition, the Servicer may pay in
a timely manner, as Servicing Advances, any and all personal property taxes and
real estate taxes due in respect of any Repo Property or REO Property it holds
on behalf of the Issuer and all premiums for any Standard Hazard Insurance
Policy maintained for such Repo Property or REO Property (except as similar
coverage may be provided under a blanket policy maintained by the Servicer)
unless the Servicer, in its reasonable judgment, determines that any such
Servicing Advance would be a Non-Recoverable Advance.
Section 4.22 Recovery of Advances. The Servicer shall be entitled to
reimbursement for any Delinquency Advances or Servicing Advances made by it in
respect of any Receivable out of subsequent collections in respect of the
Receivables, including late collections from the related Obligor or from
Insurance Proceeds, Liquidation Proceeds or a Loan Purchase Price recovered by
it in respect of such Receivable ("Related Proceeds") and shall be entitled to
reimburse itself for unreimbursed Delinquency Advances and Servicing Advances
made that have become Non-Recoverable Advances in accordance with Section 3.2.
Section 4.23 Continuation of Servicing. Upon any sale or other
disposition of some or all of the Receivables by the Indenture Trustee following
an Event of Default under the Indenture, if requested by the Indenture Trustee
(acting at the direction of the Majority Noteholders) in writing, the Servicer
will continue to service such Receivables in accordance with the terms hereof in
consideration for continued payment of the Servicing Fee to the Servicer in
accordance with the terms hereof.
END OF ARTICLE IV
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ARTICLE V
THE SELLER, THE DEPOSITOR, THE TRANSFEROR AND THE SERVICER
Section 5.1 Liability. The Seller, the Depositor, the Transferor, the
Servicer and, except if the servicing rights and obligations of the OAC, as
Subservicer, pursuant to the OAC Subservicing Agreement have terminated, OAC, as
Subservicer, shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by the Seller, the
Depositor or the Servicer, as the case may be herein.
Section 5.2 Merger or Consolidation. Any Person into which the
Depositor, the Transferor, the Seller, the Servicer or OAC, as Subservicer, may
be merged or consolidated, or any Person resulting from any merger, conversion
or consolidation to which the Depositor, the Transferor, the Seller the Servicer
or OAC, as Subservicer, shall be a party, or any Person succeeding to the
business of the Depositor, the Transferor, the Seller, the Servicer or OAC, as
Subservicer, shall be the successor of the Depositor, the Seller, the
Transferor, the Servicer or OAC, as Subservicer, 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 Section 6.2(a) with respect to the qualifications of a successor
Servicer; provided, further, however, that the Majority Noteholders shall have
consented in writing to any such merger or consolidation with respect to the
Servicer or the Depositor. The Depositor, the Seller, the Transferor, the
Servicer or OAC, as Subservicer, shall provide the Class A Note Agent with 30
days' prior notice of any such merger or consolidation.
Section 5.3 Limitation on Liability of the Servicer and Others. Neither
the Servicer, OAC, as Subservicer, the Seller, the Depositor, the Transferor nor
any of their respective directors or officers or employees or agents shall be
under any liability to the Issuer, the Indenture Trustee, the Owner Trustee, the
Certificateholders or the Owners for any action taken or for refraining from the
taking of any action by such Person in good faith pursuant to this Agreement, or
for errors in judgment; provided, however, that this provision shall not protect
the Seller, the Depositor or the Transferor or any of their respective directors
or officers or employees or agents against any liability which would otherwise
be imposed by reason of its willful misfeasance, bad faith or negligence in the
performance of its duties hereunder or by reason of its reckless disregard of
its obligations and duties hereunder and that this provision shall not protect
the Servicer or OAC, as Subservicer, or any of their respective directors or
officers or employees or agents against any liability which would otherwise be
imposed by reason of its willful misfeasance, bad faith or gross negligence in
the performance of its duties hereunder or by reason of its reckless disregard
of its obligations and duties hereunder. The Servicer and any director or
officer or employee or agent of the 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.
Section 5.4 Servicer Not to Resign. Subject to the provisions of
Sections 4.19 and 5.2, the Servicer shall not 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
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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 or its subsidiaries or Affiliates at the date of this
Agreement or (ii) the Servicer has proposed a successor servicer to the
Indenture Trustee and the Owners in writing and such proposed successor servicer
is reasonably acceptable to the Majority Noteholders; provided, however, that no
such resignation by the Servicer shall become effective until such successor
servicer or, in the case of (i) above, the Backup Servicer shall have assumed
the Servicer's responsibilities and obligations hereunder or the Indenture
Trustee shall have designated a successor servicer in accordance with Section
6.2. Any such resignation shall not relieve the Servicer of responsibility for
any of the obligations specified in Sections 6.1 and 6.2 as obligations that
survive the resignation or termination of the Servicer. Any such determination
permitting the resignation of the Servicer pursuant to clause (i) above shall be
evidenced by an Opinion of Counsel to such effect delivered to the Indenture
Trustee.
Section 5.5 Delegation of Duties. In the ordinary course of business,
the Servicer at any time may delegate any of its duties hereunder to any Person,
including any of its Affiliates, who agrees to conduct such duties in accordance
with standards comparable to those set forth in Section 4.1. Such delegation
shall not relieve the Servicer of its liabilities and responsibilities with
respect to such duties and shall not constitute a resignation within the meaning
of Section 5.4. The Servicer shall provide the Indenture Trustee and the Backup
Servicer with written notice prior to the delegation of any of its duties to any
Person other than any of the Servicer's Affiliates or their respective
successors and assigns.
Section 5.6 Indemnification of the Issuer by the Servicer. The Servicer
shall indemnify and hold harmless the Issuer, the Owners, the Custodian and the
Indenture Trustee for the benefit of the Owners and their respective officers,
directors, agents and employees from and against any loss, liability, expense,
damage or injury suffered or sustained by reason of the Servicer's willful
misfeasance, bad faith or gross negligence in the performance of its activities
in servicing or administering the Receivables 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 gross negligence. Any such
indemnification shall not be payable from the assets of the Issuer. 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
5.6 shall survive termination of the Agreement or the earlier of the resignation
or removal of the Indenture Trustee. To the Extent not paid in accordance with
Article VIII of the Trust Agreement, the Seller shall be secondarily liable for
amounts owing under such Article VIII.
ARTICLE VI
DEFAULT
Section 6.1 Servicer Termination Events.
(a) If any one of the following events ("Servicer
Termination Events") shall occur and be continuing:
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(i) The failure by the Servicer to deposit in the
Note Account any deposit required to be made by it under the terms of
this Agreement which continues unremedied for a period of one Business
Day after the date upon which such deposit is required to be made; or
(ii) The failure by the Servicer or, prior to the
termination of the OAC Subservicing Agreement, OAC, duly to observe or
perform, in any material respect, any other covenants, obligations or
agreements of the Servicer as set forth in this Agreement or the OAC,
as Subservicer, pursuant to the OAC Subservicing Agreement, as
applicable, 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 or OAC, as
Subservicer, as applicable, by the Indenture Trustee or to the Servicer
or OAC, as Subservicer, as applicable, and the Indenture Trustee by any
holder of a Note evidencing an aggregate undivided interest in the
Notes of a Percentage Interest of at least 25%; or
(iii) The entry against the Servicer, the Seller (if
an Affiliate of the Servicer) or, prior to the termination of the OAC
Subservicing Agreement, OAC, of a decree or order by a court or agency
or supervisory authority having jurisdiction in the premises for the
appointment of a trustee, conservator, receiver or liquidator in any
insolvency, conservatorship, receivership, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for
the winding up or liquidation of its affairs and the failure of such
decree or order to be discharged or stayed for 60 days; or
(iv) The Servicer, the Seller (if an Affiliate of the
Servicer) or, prior to the termination of the OAC Subservicing
Agreement, OAC, shall, after November 15, 2002, voluntarily go into
liquidation, consent to the appointment of a conservator or receiver or
liquidator or similar person in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to the Servicer or the Seller or of or relating to all or
substantially all of its property, or the Servicer or the Seller shall
admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the
benefit of its creditors or voluntarily suspend payment of its
obligations; or
(v) So long as the Seller is the Servicer or an
Affiliate of the Servicer, any failure of the Seller to repurchase any
Receivable as required by Section 2.4; or
(vi) Any of the Servicer, prior to the termination of
the OAC Subservicing Agreement, OAC, or the Depositor shall consolidate
or merge with or into any other Person; or
(vii) Any default, after the Closing Date, of a
payment or performance obligation under any other loan facility, debt
instrument or any similar financing arrangement (such facility,
instrument or financing arrangement to be an obligation of $10,000,000
or greater) of the Servicer or, prior to the termination of the OAC
Subservicing Agreement, OAC, and the lapse of all relevant grace
periods thereunder if the effect of the default is to cause, or permit
the holders of such obligation to cause, such
- 63 -
loan facility, debt instrument or any similar financing arrangement to
become due and payable; or
(viii) [Intentionally deleted]; or
(ix) There shall have occurred any material adverse
change in the operations of the Servicer since the Closing Date, or any
other event shall have occurred which materially affects the Servicer's
ability to either collect the Receivables or to perform under this
Agreement; or
(x) An Event of Default shall have occurred and be
continuing under the Indenture.
(b) then, and in each and every such case, so long as a
Servicer Termination Event shall not have been remedied within the applicable
grace period, the Indenture Trustee shall, at the direction of the Majority
Noteholders, by notice then given in writing to the Servicer, terminate all of
the rights and obligations of the Servicer as servicer under this Agreement. Any
such notice to the Servicer shall also be given to the Seller, the Issuer, the
Depositor and the Backup Servicer. On or after the receipt by the Servicer of
such written notice, all authority and power of the Servicer under this
Agreement, whether with respect to the Notes or the Receivables or otherwise,
shall pass to and be vested in the Backup Servicer pursuant to and under this
Section; and, without limitation, the Backup Servicer is hereby 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 or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement of each Receivable and related documents or otherwise. The Servicer
agrees to cooperate with the Backup Servicer in effecting the termination of the
responsibilities and rights of the Servicer hereunder, including, without
limitation, the transfer to the Backup Servicer for the administration by it of
all cash amounts that shall at the time be held by the Servicer and to be
deposited by it in the Note Account, or that have been deposited by the Servicer
in the Note Account or thereafter received by the Servicer with respect to the
Receivables. All reasonable costs and expenses (including attorneys' fees)
incurred in connection with transferring the Files to the successor servicer and
amending this Agreement to reflect such succession as servicer pursuant to this
Section shall be paid by the Servicer (or if the Servicer is the Backup
Servicer, the initial Servicer) upon presentation of reasonable documentation of
such costs and expenses.
Section 6.2 Trustee to Act; Appointment of Successor.
(a) On and after the time the Servicer receives a notice
of termination pursuant to Section 6.1 or 5.4, the Backup Servicer shall be the
successor in all respects to the Servicer in its capacity as servicer under this
Agreement and the transactions set forth or provided for herein and shall be
subject to all the responsibilities, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions hereof arising on and after
its succession. As compensation therefor, the Backup Servicer shall be entitled
to such compensation as the Servicer would have been entitled to hereunder if no
such notice of termination had been given. Notwithstanding the above, if the
Backup Servicer is legally unable
- 64 -
so to act, the Indenture Trustee shall appoint or petition a court of competent
jurisdiction to appoint, any established housing and home finance institution,
bank or other mortgage loan or contract servicer having a net worth of not less
than $50,000,000 as the successor to the Servicer hereunder in the assumption of
all or any part of the responsibilities, duties or liabilities of the Servicer
hereunder. In the event that JPMorgan Chase Bank, as Backup Servicer, is legally
unable to act as Servicer under this Agreement and another entity is appointed
as successor servicer under this Section, JPMorgan Chase Bank shall have no
further obligation to perform the obligations of Servicer or Backup Servicer
under this Agreement. Pending appointment of a successor to the Servicer
hereunder, unless the Backup Servicer is prohibited by law from so acting, the
Backup Servicer shall act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the successor shall be entitled
to receive compensation out of payments on Receivables in an amount equal to the
compensation which the Servicer would otherwise have received pursuant to
Section 4.8 (or such lesser compensation as the Indenture Trustee and such
successor shall agree). The appointment of a successor servicer shall not affect
any liability of the Servicer which may have arisen under this Agreement prior
to its termination as Servicer to pay any deductible under an insurance policy
pursuant to Section 4.5 or to indemnify the Indenture Trustee pursuant to
Section 5.6, nor shall any successor servicer be liable for any acts or
omissions of the Servicer or for any breach by the Servicer of any of its
representations or warranties contained herein or in any related document or
agreement. The Trustee and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession.
(b) Any successor, including the Backup Servicer, to the
Servicer as servicer shall during the term of its service as servicer (i)
continue to service and administer the Receivables for the benefit of the Issuer
and the Indenture Trustee, for the benefit of the Owners, and (ii) maintain in
force a policy or policies of insurance covering errors and omissions in the
performance of its obligations as Servicer hereunder and a fidelity bond in
respect of its officers, employees and agents to the same extent as the Servicer
is so required pursuant to Section 4.5.
Section 6.3 Waiver of Defaults. The Owners of a majority of the
Percentage Interests of the Notes (the "Majority Noteholders") may, on behalf of
all Owners, waive any events permitting removal of the Servicer as servicer
pursuant to this Article VI, provided, however, that the Majority Noteholders
may not waive a default in making a required distribution on a Note without the
consent of the Owner of such Note. Upon any waiver of a past default, such
default shall cease to exist and any Servicer Termination Event arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereto except to the extent expressly so waived.
Section 6.4 Notification to Owners. Upon any termination or appointment
of a successor to the Servicer pursuant to this Article VI or Section 5.4, the
Indenture Trustee shall give prompt written notice thereof to the Owners at
their respective addresses appearing in the Register.
Notwithstanding anything else herein to the contrary, in no event shall
the Indenture Trustee or the Backup Servicer be liable for any servicing fee or
for any differential in the amount of the servicing fee paid hereunder and the
amount necessary to induce any successor
- 65 -
Servicer to act as successor Servicer under this Agreement and the transactions
set forth or provided for herein.
END OF ARTICLE VI
- 66 -
ARTICLE VII
TERMINATION
Section 7.1 Termination. This Agreement will terminate upon notice to
the Indenture Trustee of the later of (i) the satisfaction and discharge of the
Indenture pursuant to Section 4.1 of the Indenture or (ii) the disposition of
all funds with respect to the last Receivable and the remittance of all funds
due hereunder and the payment of all amounts due and payable to the Indenture
Trustee, the Custodian, the Owner Trustee and the Issuer.
END OF ARTICLE VII
- 67 -
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Acts of Owners. Except as otherwise specifically provided
herein, whenever Owner action, consent or approval is required under this
Agreement, such action, consent or approval shall be deemed to have been taken
or given on behalf of, and shall be binding upon, all Owners if the Majority
Noteholders agree to take such action or give such consent or approval.
Section 8.2 Recordation of Agreement. To the extent permitted by
applicable law, this Agreement, or a memorandum thereof if permitted under
applicable law, is subject to recordation in all appropriate public offices for
real property records in all of the counties or other comparable jurisdictions
in which any or all of the Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Servicer at the Owners' expense on direction of the Majority
Noteholders, but only when accompanied by an opinion of counsel to the effect
that such recordation materially and beneficially affects the interests of the
Owners or is necessary for the administration or servicing of the Receivables.
Section 8.3 Duration of Agreement. This Agreement shall continue in
existence and effect until terminated as herein provided.
Section 8.4 Successors and Assigns. All covenants and agreements in
this Agreement by any party hereto shall bind its successors and assigns,
whether so expressed or not.
Section 8.5 Severability. In case any provision in this Agreement or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 8.6 Governing Law; Submission to Jurisdiction.
(a) This Agreement and each Note shall be construed in
accordance with and governed by the laws of the State of New York applicable to
agreements made and to be performed therein.
(b) The parties hereto hereby irrevocably submit to the
jurisdiction of the United States District Court for the Southern District of
New York and any court in the State of New York located in the City and County
of New York, and any appellate court from any thereof, in any action, suit or
proceeding brought against it or in connection with this Agreement or any of the
related documents or the transactions contemplated hereunder or for recognition
or enforcement of any judgment, and the parties hereto hereby irrevocably and
unconditionally agree that all claims in respect of any such action or
proceeding may be heard or determined in such New York State court or, to the
extent permitted by law, in such federal court. The parties hereto agree that a
final judgment in any such action, suit or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. To the extent permitted by applicable law, the parties
hereto hereby waive and agree not to assert by way of motion, as a defense or
otherwise in any such suit, action or proceeding, any
- 68 -
claim that it is not personally subject to the jurisdiction of such courts, that
the suit, action or proceeding is brought in an inconvenient forum, that the
venue of the suit, action or proceeding is improper or that the related
documents or the subject matter thereof may not be litigated in or by such
courts.
(c) Nothing contained in this Agreement shall limit or
affect the right of the Depositor, the Transferor, the Issuer, the Seller or the
Servicer or third-party beneficiary hereunder, as the case may be, to start
legal proceedings relating to any of the Receivables against any Obligor in the
courts of any jurisdiction.
Section 8.7 Counterparts. This instrument may be 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 8.8 Amendment. The Indenture Trustee, the Custodian, the
Depositor, the Issuer, the Seller and the Servicer, may at any time and from
time to time, with the prior written consent of the Majority Noteholders, amend
this Agreement, and the Indenture Trustee shall consent to the amendment for the
purposes of (i) curing any ambiguity, (ii) correcting or supplementing any
provisions of this Agreement which are inconsistent with any other provisions of
this Agreement or adding provisions to this Agreement which are not inconsistent
with the provisions of this Agreement, or (iii) adding any other provisions with
respect to matters or questions arising under this Agreement. Notwithstanding
anything to the contrary, no such amendment shall (A) change in any manner the
amount of, or delay the timing of, payments which are required to be distributed
to any Owner without the consent of the Owner of such Note or (B) change the
percentages of Percentage Interest which are required to consent to any such
amendments, without the consent of the Owners of all Notes then outstanding.
Prior to the execution of any amendment to this Agreement, the
Indenture Trustee and the Backup Servicer shall be entitled to receive and
conclusively rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement and that all conditions
precedent to such execution and delivery have been satisfied. The Indenture
Trustee and the Backup Servicer may, but shall not be obligated to enter into
any such amendment which affects the Indenture Trustee's and the Backup
Servicer's own rights, duties or immunities under this Agreement.
Section 8.9 Specification of Certain Tax Matters. Each Owner shall
provide the Indenture Trustee with a completed and executed Form W-8IMY, W-9,
W-8EXP, W-8ECI or W-8BEN (or any successor form), as applicable, prior to
purchasing a Note. The Indenture Trustee shall comply with all requirements of
the Code, and applicable state and local law, with respect to the withholding
from any distributions made to any Owner of any applicable withholding taxes
imposed thereon and with respect to any applicable reporting requirements in
connection therewith.
Section 8.10 Notices. Except as provided below, all communications and
notices provided for hereunder shall be in writing (including bank wire, telex,
telecopy or electronic facsimile transmission or similar writing) and shall be
given to the other party at its address or telecopy number set forth below or at
such other address or telecopy number as such party may
- 69 -
hereafter specify for the purpose of notice to such party. All notices hereunder
shall be given as follows, until any superseding instructions are given to all
other Persons listed below:
The Indenture Trustee
Backup Servicer JPMorgan Chase Bank
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Institutional Trust Services
Telecopier No.:
Custodian: JPMorgan Chase Bank
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Custody Manager
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
The Issuer: OMI Note Trust 2003-A
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration/
OMI Note Trust 2003-A
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Depositor: Oak Leaf Holdings, LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
The Transferor: Ginkgo Corporation
c/o Lord Securities Corporation
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Subservicer
and Seller: Oakwood Acceptance Corporation, LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
- 70 -
Attention: Treasurer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
The Servicer: Oakwood Servicing Holdings Co., LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Section 8.11 Benefits of Agreement. Nothing in this Agreement or in the
Notes, expressed or implied, shall give to any Person, other than the Owners,
the Owner Trustee and the parties hereto and their successors hereunder, any
benefit or any legal or equitable right, remedy or claim under this Agreement.
Section 8.12 Legal Holidays. In any case where the date of any Payment
Date, any other date on which any distribution to any Owner is proposed to be
paid, or any date on which a notice is required to be sent to any Person
pursuant to the terms of this Agreement shall not be a Business Day, then
(notwithstanding any other provision of the Notes or this Agreement) payment or
mailing need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made or mailed on the nominal
date of any such Payment Date, or such other date for the payment of any
distribution to any Owner or the mailing of such notice, as the case may be, and
no interest shall accrue for the period from and after any such nominal date,
provided such payment is made in full on such next succeeding Business Day.
Section 8.13 No Petition. The Indenture Trustee, the Custodian, the
Depositor, the Seller and the Servicer, by entering into this Agreement, and
each Owner, by accepting a Note, hereby covenant and agree that they will not
institute against the Depositor or the Issuer, or join in any institution
against the Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, this Agreement or any of the Operative
Documents for one year and one day after the payment in full of the Notes.
Section 8.14 Limitation of Liability of Owner Trustee. Notwithstanding
anything contained herein or in any other Operative Document to the contrary, it
is expressly understood and agreed by the parties hereto that (a) this Agreement
is executed and delivered by Wilmington
- 71 -
Trust Company, not individually or personally but solely as Owner Trustee, in
the exercise of the powers and authority conferred and vested in it under the
Trust Agreement, (b) each of the representations, undertakings and agreements
herein made on the part of the Issuer is made and intended not as a personal
representation, undertaking or agreement by Wilmington Trust Company but is made
and intended for the purpose for binding only the Issuer and the Trust Estate,
and (c) under no circumstances shall Wilmington Trust Company be personally
liable for the payment of any indebtedness or expenses of the Issuer or be
liable for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Issuer under this Agreement or any other
related documents.
END OF ARTICLE VIII
- 72 -
IN WITNESS WHEREOF, the Issuer, the Depositor, the Seller, the
Servicer, the Subservicer, the Backup Servicer, the Custodian and the Indenture
Trustee have caused this Agreement to be duly executed by their respective
officers thereunto duly authorized, all as of the day and year first above
written.
OMI NOTE TRUST 2003-A
By: Wilmington Trust Company, not
individually, but solely in its
capacity as Owner Trustee
By: ___________________________________
Name: ___________________________________
Title: __________________________________
GINKGO CORPORATION,
as Transferor
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
OAK LEAF HOLDINGS, LLC,
as Depositor
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
OAKWOOD ACCEPTANCE CORPORATION, LLC,
as Seller and Subservicer
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
OAKWOOD SERVICING HOLDINGS CO., LLC,
as Servicer
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
JPMORGAN CHASE BANK, as
Backup Servicer, Indenture Trustee, and
Custodian
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
- S-1 -
STATE OF )
): ss.:
COUNTY OF )
On the ____ day of January, 2003, before me, a notary public in and for
the State of _______, personally appeared _______________, known to me who,
being by me duly sworn, did depose and say that he/she resides at
_________________________; that he/she is ________________________ of Oakwood
Acceptance Corporation, LLC, a Delaware limited liability company; one of the
parties that executed the foregoing instrument; that he/she knows the seal of
said company; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation;
and that he/she signed his/her name thereto by like order.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
NOTARIAL SEAL
______________________________
Notary Public
Notary Public, State of __________
My Commission Expires:
- N-1 -
STATE OF )
): ss.:
COUNTY OF )
On the ____ day of January, 2003, before me, a notary public in and for
the State of _______, personally appeared _______________, known to me who,
being by me duly sworn, did depose and say that he/she resides at
_________________________; that he/she is ________________________ of Oakwood
Servicing Holdings Co., LLC, a Nevada limited liability company; one of the
parties that executed the foregoing instrument; that he/she knows the seal of
said company; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the members or board of managers of said
company; and that he/she signed his/her name thereto by like order.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
NOTARIAL SEAL
______________________________
Notary Public
Notary Public, State of __________
My Commission Expires:
- N-2 -
STATE OF )
: ss.:
COUNTY OF )
On the ____ day of January, 2003, before me, a notary public in and for
the State of _______, personally appeared _______________, known to me who,
being by me duly sworn, did depose and say that he resides at
_________________________; that he is ________________ of Ginkgo Corporation, a
Delaware corporation; one of the parties that executed the foregoing instrument;
that he/she knows the seal of said company; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation; and that he/she signed his/her name thereto by
like order.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
NOTARIAL SEAL
Notary Public
Notary Public, State of __________
My Commission Expires:
- N-3 -
STATE OF )
: ss.:
COUNTY OF )
On the ____ day of January, 2003, before me, a notary public in and for
the State of _______, personally appeared _________________, known to me who,
being by me duly sworn, did depose and say that he resides at
_________________________; that he is ____________________ of Wilmington Trust
Company, a Delaware banking corporation; one of the parties that executed the
foregoing instrument and that he/she signed his/her name thereto by like order..
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
NOTARIAL SEAL
Notary Public
Notary Public, State of __________
My Commission Expires:
- N-4 -
STATE OF )
: ss.:
COUNTY OF )
On the ____ day of January, 2003, before me, a notary public in and for
the State of _______, personally appeared ________________, known to me who,
being by me duly sworn, did depose and say that he resides at
_________________________; that he is _________________ of JPMorgan Chase Bank,
a New York banking corporation; one of the parties that executed the foregoing
instrument; that he/she knows the seal of said company; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation; and that he/she signed his/her name
thereto by like order..
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
NOTARIAL SEAL
Notary Public
Notary Public, State of __________
My Commission Expires:
- N-5 -
STATE OF )
: ss.:
COUNTY OF )
On the ____ day of January, 2003, before me, a notary public in and for
the State of _______, personally appeared ________________, known to me who,
being by me duly sworn, did depose and say that he resides at
_________________________; that he is _________________ of Oak Leaf Holdings,
LLC, a Delaware limited liability company; one of the parties that executed the
foregoing instrument; that he/she knows the seal of said company; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the members or board of managers of said company; and that he/she
signed his/her name thereto by like order.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
NOTARIAL SEAL
Notary Public
Notary Public, State of __________
My Commission Expires:
- N-6 -
SCHEDULE I
SCHEDULE OF RECEIVABLES
A copy of this Schedule is maintained by the Indenture Trustee at the
Corporate Trust Office.
- I-1 -
SCHEDULE II
LOCK-BOX BANK
Wachovia Bank National Association
(formerly First Union National Bank)
Account Numbers: 2000000733346 and 2000000733605
- II-1 -
EXHIBIT A
FORM OF MONTHLY REPORT
- A-1 -
EXHIBIT B
__________________________
[January __, 2003
[Indenture Trustee]
[address]
Re: OMI Note Trust 2003-A Asset Backed Notes,
Series 2003-A
Ladies and Gentlemen:
This is to advise you that the officers listed on the attached schedule
are Servicing Officers as such term is defined in Article I of the Sale and
Servicing Agreement, dated as of January 23, 2003 (the "Agreement"), among you,
as Indenture Trustee, Backup Servicer and Custodian, OMI Note Trust 2003-A, as
Issuer, Ginkgo Corporation, as Transferor, Oak Leaf Holdings, LLC, as Depositor,
and the undersigned, as Seller and Servicer and relating to the above-referenced
Notes, and such officers are authorized to take all action and sign all
documents described in the Agreement. The list of Servicing Officers may be
amended from time to time by delivery to you of an amended schedule.
Very truly yours,
______________________________________
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
- B-2 -
LIST OF SERVICING OFFICERS
January 23, 2003
Name Title Signature
---- ----- ---------
______________________________________
______________________________________
______________________________________
______________________________________
- B-3 -
Exhibit D
FORM OF LIEN RELEASE
_____________, 20__
OMI Note Trust 2003-A
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration/
OMI Note Trust 2003-A
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Oakwood Acceptance Corporation, LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Oakwood Servicing Holdings Co., LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Oak Leaf Holdings, LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
JPMorgan Chase Bank,
as Custodian under the Custodial Agreement
referred to below
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Ladies and Gentlemen:
Reference is hereby made to (1) the Indenture (as such agreement may be
amended, restated, supplemented or modified from time to time, the "Agreement"),
dated as of January 23, 2003, between OMI Note Trust 2003-A (the "Issuer") and
the undersigned Indenture Trustee, and (2) the Custodial Agreement, dated as of
January 23, 2003, among the Issuer , the Note Agent, Oakwood Acceptance
Corporation and JPMorgan Chase Bank, as custodian (in such capacity, the
"Custodian") and Indenture Trustee, and the other persons from time to time
parties thereto.
The undersigned, as the Indenture Trustee, hereby confirms that it
consents to the release from the security interest created by the Agreement
relating to the Contracts and Mortgage Loans identified on the schedule attached
hereto (the "Released Receivables").
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In accordance with section 3 of the Custodial Agreement, the
undersigned hereby releases the Released Receivables, as well as all related
Documents and all proceeds of such Released Receivables and Documents, and any
other documents, rights or items of property relating to the Released
Receivables heretofore included in the collateral covered by the Agreement, from
the security interest that was granted in such items of Collateral to the
Indenture Trustee pursuant to the Agreement, and that, from the date of delivery
of this letter to you in accordance with the terms of the Custodial Agreement
henceforward, such Contracts and Mortgage Loans do not and shall not constitute
Contracts and Mortgage Loans held under the provisions of the Custodial
Agreement. Notwithstanding anything herein to the contrary, in the event this
letter hereinabove refers to the Released Receivables as those identified on
schedule attached hereto, and such schedule is not so attached, this release is
without effect and such Released Receivables remain subject to the security
interest granted under the Agreement unless and until such a schedule is
prepared and attached hereto.
In addition, notwithstanding (1) the UCC-1 Financing Statement filed on
___________, 2003 with the Delaware Secretary of State bearing file number
______, (2) the UCC-1 Financing Statement filed on ___________, 2003 with the
Delaware Secretary of State bearing file number ______, (3) the UCC-1 Financing
Statement filed on ___________, 2003 with the Delaware Secretary of State
bearing file number ______, and (4) the UCC-1 Financing Statement filed on
___________, 2003 with the Delaware Secretary of State bearing file number
______ (collectively with any further financing statements filed relating to
such UCC-1 Financing Statements, the "Financing Statements"), the undersigned,
as secured party or assignee of the secured party pursuant to each of the
Financing Statements, acknowledges that neither the Released Receivables, nor
any document or collateral relating to any of such Released Receivables, is now
or hereafter will be collateral subject to any of the Financing Statements.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Agreement, or, if not defined therein, in
the Custodial Agreement.
Sincerely yours,
_____________________, as Indenture Trustee
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
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Table of Contents
Page
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SCHEDULE I SCHEDULE OF RECEIVABLES
SCHEDULE II CREDIT AND COLLECTION POLICY
SCHEDULE III LOCK-BOX BANKS
SCHEDULE IV TRADENAMES, ETC.
EXHIBIT A FORM OF MONTHLY REPORT
EXHIBIT B LIST OF SERVICING OFFICERS
EXHIBIT C FORM OF BORROWING BASE CERTIFICATE
EXHIBIT D FORM OF LIEN RELEASE
EXHIBIT E FORM OF SERVICER EXTENSION NOTICE
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