BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
CONTRACT SELLER,
BANK OF AMERICA, FSB,
acting through its division,
BANKAMERICA HOUSING SERVICES,
CONTRACT SELLER AND SERVICER,
and
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 1998
BankAmerica Manufactured Housing Contract Trust V
Senior/Subordinate Pass-Through Certificates
Series 1998-2
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS............................................................ 1
Section 1.01 Terms............................................................. 1
Section 1.02 Construction...................................................... 26
ARTICLE II CONVEYANCE OF CONTRACTS, REPRESENTATIONS AND WARRANTIES................ 26
Section 2.01 Conveyance of Contracts........................................... 26
Section 2.02 Filing and Assignment, Name Change or Relocation.................. 28
Section 2.03 Acceptance by Trustee............................................. 28
Section 2.04 Certificate Ratings............................................... 29
Section 2.05 Representations and Warranties Regarding the Servicer............. 29
Section 2.06 Covenants of the Contract Sellers, Trustee and Servicer........... 30
Section 2.07 Authentication and Delivery of Certificates....................... 30
Section 2.08 Covenants of the Servicer......................................... 31
ARTICLE III REPRESENTATIONS AND WARRANTIES BY THE CONTRACT SELLERS................. 31
Section 3.01 Representations and Warranties of the Contract Sellers............ 31
Section 3.02 Representations and Warranties Regarding Each Contract............ 32
Section 3.03 Representations and Warranties Regarding the Contracts
in the Aggregate....................................................... 36
Section 3.04 Representations and Warranties Regarding the Contracts............ 37
Section 3.05 Repurchases of Contracts or Substitution of Contracts
for Breach of Representations and Warranties........................... 37
Section 3.06 General........................................................... 40
ARTICLE IV ADMINISTRATION AND SERVICING OF CONTRACTS.............................. 41
Section 4.01 Responsibility for Contract Administration and Servicing.......... 41
Section 4.02 Standard of Care.................................................. 41
Section 4.03 Records........................................................... 41
Section 4.04 Inspection........................................................ 42
Section 4.05 Establishment of and Deposits in Certificate Accounts............. 42
Section 4.06 Payment of Taxes.................................................. 43
Section 4.07 Enforcement....................................................... 43
Section 4.08 Transfer of Certificate Account................................... 44
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Section 4.09 Maintenance of Hazard Insurance Policies.......................... 44
Section 4.10 Fidelity Bond and Errors and Omissions Insurance.................. 46
Section 4.11 Collections under Hazard Insurance Policies, Consent
to Transfers of Manufactured Homes, Assumption Agreements.............. 46
Section 4.12 Realization upon Defaulted Contracts.............................. 47
Section 4.13 Costs and Expenses................................................ 47
Section 4.14 Trustee to Cooperate.............................................. 48
Section 4.15 Servicing and Other Compensation.................................. 48
Section 4.16 Custody of Contracts.............................................. 49
Section 4.17 REMIC Compliance.................................................. 51
Section 4.18 Management of REO Property........................................ 55
Section 4.19 Reports to the Securities and Exchange Commission................. 57
Section 4.20 Annual Statement as to Compliance................................. 57
Section 4.21 Annual Independent Public Accountants' Servicing Report........... 57
Section 4.22 Retitling of Land Home Contracts.................................. 58
ARTICLE V PAYMENTS, MONTHLY ADVANCES AND MONTHLY REPORTS......................... 58
Section 5.01 Monthly Advances by the Servicer.................................. 58
Section 5.02 Payments.......................................................... 59
Section 5.03 Permitted Withdrawals from the Certificate Account................ 62
Section 5.04 Monthly Reports................................................... 63
Section 5.05 Certificate of Servicing Officer.................................. 68
Section 5.06 Other Data........................................................ 68
Section 5.07 Statements to Certificateholders.................................. 68
Section 5.08 Reserve Account................................................... 73
ARTICLE VI THE CERTIFICATES....................................................... 74
Section 6.01 The Certificates.................................................. 74
Section 6.02 Certificate Register; Registration of Transfer and
Exchange of Certificates............................................... 75
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates................. 79
Section 6.04 Persons Deemed Owner.............................................. 80
Section 6.05 Access to List of Certificateholders' Names and
Addresses.............................................................. 80
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(CONTINUED)
PAGE
Section 6.06 Global Certificates............................................... 80
Section 6.07 Notices to Depository............................................. 81
Section 6.08 Definitive Certificate............................................ 81
ARTICLE VII THE CONTRACT SELLERS AND THE SERVICER.................................. 82
Section 7.01 Liabilities to Obligors........................................... 82
Section 7.02 Servicer's Indemnities............................................ 82
Section 7.03 Operation of Indemnities.......................................... 83
Section 7.04 Merger or Consolidation of the Contract Sellers or the
Servicer............................................................... 83
Section 7.05 Limitation on Liability of the Contract Sellers, the
Servicer and Others.................................................... 83
Section 7.06 Assignment by Servicer............................................ 84
Section 7.07 Successor to the Servicer......................................... 84
ARTICLE VIII EVENTS OF DEFAULT...................................................... 86
Section 8.01 Events of Default................................................. 86
Section 8.02 Waiver of Defaults................................................ 87
Section 8.03 Trustee to Act, Appointment of Successor.......................... 87
Section 8.04 Notification to Certificateholders................................ 87
Section 8.05 Effect of Transfer................................................ 88
Section 8.06 Transfer of the Account........................................... 88
ARTICLE IX CONCERNING THE TRUSTEE................................................. 88
Section 9.01 Duties of Trustee................................................. 88
Section 9.02 Certain Matters Affecting the Trustee............................. 89
Section 9.03 Trustee not Liable for Certificates or Contracts.................. 91
Section 9.04 Trustee May Own Certificates...................................... 91
Section 9.05 Servicer to Pay Fees and Expenses of Trustee, Paying
Agent and Certificate of Administrator................................. 91
Section 9.06 Eligibility Requirements for Trustee.............................. 92
Section 9.07 Resignation and Removal of the Trustee............................ 92
Section 9.08 Successor Trustee ................................................ 93
Section 9.09 Merger or Consolidation of Trustee................................ 93
Section 9.10 Appointment of Co-Trustee or Separate Trustee..................... 94
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Section 9.11 Appointment of Office or Agency................................... 95
Section 9.12 Certificate Administrator......................................... 95
Section 9.13 Appointment of Paying Agent....................................... 95
ARTICLE X TERMINATION............................................................ 96
Section 10.01 Termination...................................................... 96
ARTICLE XI MISCELLANEOUS PROVISIONS............................................... 100
Section 11.01 Amendment........................................................ 100
Section 11.02 Recordation of Agreement; Counterparts........................... 101
Section 11.03 Governing Law.................................................... 102
Section 11.04 Calculations..................................................... 102
Section 11.05 Notices.......................................................... 102
Section 11.06 Severability of Provisions....................................... 103
Section 11.07 Assignment....................................................... 103
Section 11.08 Limitations on Rights of Certificateholders...................... 103
Section 11.09 Inspection and Audit Right....................................... 104
Section 11.10 Certificates Nonassessable and Fully Paid........................ 104
Section 11.11 Official Record.................................................. 104
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This POOLING AND SERVICING AGREEMENT, dated as of June 1, 1998 (the
"Agreement"), is executed by and among Bank of America National Trust and
Savings Association ("Bank of America"), as a contract seller (a "Contract
Seller"), Bank of America, FSB ("BAFSB"), acting through its division,
BankAmerica Housing Services, as a contract seller (in such capacity, a
"Contract Seller," and, together with Bank of America, the "Contract
Sellers") and the servicer (in such capacity and together with its permitted
successor servicer, the "Servicer"), and The First National Bank of Chicago,
as trustee (together with its permitted successors in trust, the "Trustee").
Bank of America, as a Contract Seller, and BAFSB, acting through
its division, BankAmerica Housing Services, as a Contract Seller and
Servicer, have duly authorized the execution and delivery of this Agreement
to provide for the issuance of BankAmerica Manufactured Housing Contract
Trust V, Senior/Subordinate Pass-Through Certificates, Series 1998-2 (the
"Certificates"). The Certificates issued hereunder shall be limited to the
amount herein described. All covenants and agreements made by the Contract
Sellers herein are for the benefit and security of the Certificateholders.
The Contract Sellers are entering into this Agreement, and the Trustee is
accepting the trusts created hereby for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged.
In consideration of the premises and the mutual agreements
hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 TERMS.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
ADVERSE REMIC EVENT: As defined in Section 4.17(f) hereof.
ADVISOR: As defined in Section 10.01(b)(3) hereof.
AFFILIATE: As 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" or
"controlled" have meanings correlative to the foregoing.
AGGREGATE NET LIQUIDATION LOSSES: With respect to the time of reference
thereto, the aggregate of the amounts by which (i) the outstanding principal
balance of each Contract that during such time of reference had become a
Liquidated Contract, plus accrued and unpaid interest thereon at the related
Contract Rate to the Due Date for such Contract in the Collection Period in
which such Contract became a Liquidated Contract exceeds (ii) the Net
Liquidation Proceeds for such Contract.
AGREEMENT: This Pooling and Servicing Agreement and any and all
amendments or supplements hereto.
ANNUAL SERVICING RATE: 1.00% per annum (or, in the case of a successor
Servicer engaged at any time after BAFSB is no longer the Servicer, the
percentage agreed upon pursuant to Section 7.07).
ASSIGNMENT: An individual assignment of a Mortgage, notice or transfer
or equivalent instrument in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect of
record the sale or transfer of the related Land Home Contract.
AUCTION DATE: As defined in Section 10.01(b) hereof.
AVAILABLE DISTRIBUTION AMOUNT: As to any Distribution Date, the sum of
(a) the amount on deposit or otherwise credited to the Certificate Account as
of the end of the Collection Period ending immediately prior to such
Distribution Date, less the portion of such amount (i) permitted to be
withdrawn by the Servicer pursuant to Section 5.03 or (ii) constituting
Excess Contract Payments and (b) the Monthly Advance for such Distribution
Date actually made in respect of such Distribution Date.
AVERAGE SIXTY-DAY DELINQUENCY RATIO: As to any Distribution Date, the
arithmetic average of the Sixty-Day Delinquency Ratios for such Distribution
Date and the two preceding Distribution Dates.
AVERAGE THIRTY-DAY DELINQUENCY RATIO: As to any Distribution Date, the
arithmetic average of the Thirty-Day Delinquency Ratios for such Distribution
Date and the two preceding Distribution Dates.
BAFSB: Bank of America, FSB, its successors or assigns.
BANK OF AMERICA: Bank of America National Trust and Savings Association,
its successors or assigns.
BUSINESS DAY: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which banking institutions in the City of New York, New York, or the
State of California or the city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law or executive order to
be closed.
CAP RATE: With respect to each of the Class A-7 Certificates, Class M
Certificates, Class B-1 Certificates and the Class B-2 Certificates, that
interest rate set forth in subparagraph (a) of the definitions of Class A-7
Pass-Through Rate, Class M Pass-Through Rate, Class B-1 Pass-Through Rate and
Class B-2 Pass-Through Rate, respectively.
CERTIFICATE: Any of the BankAmerica Manufactured Housing Contract Trust
V, Senior/Subordinate Pass-Through Certificates, Series 1998-2.
2
CERTIFICATE ACCOUNT: The separate Eligible Account created and
initially maintained by the Trustee pursuant to Section 4.05 in the name of
the Trustee for the benefit of the Holders of the Certificates. Funds in the
Certificate Account shall be held in trust for the aforementioned
Certificateholders for the uses and purposes set forth in this Agreement.
CERTIFICATE ADMINISTRATOR: The Person appointed by the Trustee from
time to time pursuant to Section 9.12.
CERTIFICATE BALANCE: When used with respect to a single Class, the
Class A-1 Certificate Balance, Class A-2 Certificate Balance, Class A-3
Certificate Balance, Class A-4 Certificate Balance, Class A-5 Certificate
Balance, Class A-6 Certificate Balance, Class A-7 Certificate Balance, Class
M Certificate Balance, Class B-1 Certificate Balance or Class B-2 Certificate
Balance, as applicable; and when used with respect to more than one Class of
Certificates, the sum of the Class A-1 Certificate Balance, Class A-2
Certificate Balance, Class A-3 Certificate Balance, Class A-4 Certificate
Balance, Class A-5 Certificate Balance, Class A-6 Certificate Balance, Class
A-7 Certificate Balance, Class M Certificate Balance, Class B-1 Certificate
Balance and Class B-2 Certificate Balance, as applicable.
CERTIFICATE OWNER: With respect to a Global Certificate, the person
that is the beneficial owner of an interest in such Global Certificate.
CERTIFICATE REGISTER: The register maintained pursuant to Section 6.02
hereof.
CERTIFICATEHOLDER or HOLDER: The person in whose name a Certificate is
registered in the Certificate Register (initially, Cede & Co., as nominee for
the Depository, in the case of any Global Certificates), except that solely
for the purpose of giving any consent pursuant to this Agreement, any
Certificate registered in the name of a Contract Seller, the Servicer or any
Affiliate of a Contract Seller or the Servicer shall be deemed not to be
Outstanding and the Percentage Interest evidenced thereby shall not be taken
into account in determining whether the requisite amount of Percentage
Interests necessary to effect such consent has been obtained; PROVIDED,
HOWEVER, that if any such Person (including a Contract Seller) owns 100% of
the Percentage Interests evidenced by a Class of Certificates, such
Certificates shall be deemed to be Outstanding for purposes of any provision
hereof that requires the consent of the Holders of Certificates of a
particular Class as a condition to the taking of any action hereunder. The
Trustee is entitled to rely conclusively on a certification of the Contract
Sellers, the Servicer or any Affiliate of the Contract Sellers or the
Servicer in determining which Certificates are registered in the name of an
Affiliate of the Contract Sellers or the Servicer.
CLASS or CLASS A-1, CLASS ▇-▇, ▇▇▇▇▇ ▇-▇, CLASS A-4, CLASS A-5, CLASS
A-6, CLASS A-7, CLASS M, CLASS B-1, CLASS B-2 or CLASS R: Pertaining to Class
A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-5 Certificates, Class A-6 Certificates, Class A-7
Certificates, Class M Certificates, Class B-1 Certificates, Class B-2
Certificates or Class R Certificates, as the case may be.
CLASS A-1 CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in
EXHIBIT B-1 and Exhibit C hereto.
3
CLASS A-1 CERTIFICATE BALANCE: At any time, the Initial Class A-1
Certificate Balance minus the sum of all principal distributions previously
made to the Class A-1 Certificateholders (including distributions made
pursuant to clause (x) of Section 5.02).
CLASS A-1 DISTRIBUTION AMOUNT: As to any Distribution Date, the total
amount distributed to the Class A-1 Certificateholders pursuant to Section
5.02.
CLASS A-1 INTEREST DISTRIBUTION AMOUNT: As to any Distribution Date, an
amount equal to the sum of (a) one month's interest at the Class A-1
Pass-Through Rate on the Class A-1 Certificate Balance as of such
Distribution Date (before giving effect to the principal distributions on
such Distribution Date) and (b) any Class A-1 Unpaid Interest Shortfall.
CLASS A-1 INTEREST SHORTFALL: As to any Distribution Date, any amount
by which the amount distributed to Holders of Class A-1 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of
the definition of "Class A-1 Interest Distribution Amount."
CLASS A-1 PASS-THROUGH RATE: 5.89% per annum.
CLASS A-1 UNPAID INTEREST SHORTFALL: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class A-1 Interest Shortfalls
for prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class A-1 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at
the Class A-1 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
CLASS A-2 CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in
EXHIBIT B-2 and Exhibit C hereto.
CLASS A-2 CERTIFICATE BALANCE: At any time, the Initial Class A-2
Certificate Balance minus the sum of all principal distributions previously
made to the Class A-2 Certificateholders.
CLASS A-2 DISTRIBUTION AMOUNT: As to any Distribution Date, the total
amount distributed to the Class A-2 Certificateholders pursuant to Section
5.02.
CLASS A-2 INTEREST DISTRIBUTION AMOUNT: As to any Distribution Date, an
amount equal to the sum of (a) one month's interest at the Class A-2
Pass-Through Rate on the Class A-2 Certificate Balance as of such
Distribution Date (before giving effect to the principal distributions on
such Distribution Date) and (b) any Class A-2 Unpaid Interest Shortfall.
CLASS A-2 INTEREST SHORTFALL: As to any Distribution Date, any amount
by which the amount distributed to Holders of Class A-2 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of
the definition of "Class A-2 Interest Distribution Amount."
CLASS A-2 PASS-THROUGH RATE: 6.04% per annum.
CLASS A-2 UNPAID INTEREST SHORTFALL: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class A-2 Interest Shortfalls
for prior Distribution Dates exceeds all
4
prior distributions made pursuant to Section 5.02 in respect of prior Class
A-2 Interest Shortfalls, plus accrued interest thereon (to the extent payment
thereof is legally permissible) at the Class A-2 Pass-Through Rate on such
amount with respect to such prior Distribution Dates.
CLASS A-3 CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in
EXHIBIT B-3 and EXHIBIT C hereto.
CLASS A-3 CERTIFICATE BALANCE: At any time, the Initial Class A-3
Certificate Balance minus the sum of all principal distributions previously
made to the Class A-3 Certificateholders.
CLASS A-3 DISTRIBUTION AMOUNT: As to any Distribution Date, the total
amount distributed to the Class A-3 Certificateholders pursuant to Section
5.02.
CLASS A-3 INTEREST DISTRIBUTION AMOUNT: As to any Distribution Date, an
amount equal to the sum of (a) one month's interest at the Class A-3
Pass-Through Rate on the Class A-3 Certificate Balance as of such
Distribution Date (before giving effect to the principal distributions on
such Distribution Date) and (b) any Class A-3 Unpaid Interest Shortfall.
CLASS A-3 INTEREST SHORTFALL: As to any Distribution Date, any amount
by which the amount distributed to Holders of Class A-3 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of
the definition of "Class A-3 Interest Distribution Amount."
CLASS A-3 PASS-THROUGH RATE: 6.04% per annum.
CLASS A-3 UNPAID INTEREST SHORTFALL: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class A-3 Interest Shortfalls
for prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class A-3 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at
the Class A-3 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
CLASS A-4 CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in
EXHIBIT B-4 and EXHIBIT C hereto.
CLASS A-4 CERTIFICATE BALANCE: At any time, the Initial Class A-4
Certificate Balance minus the sum of all principal distributions previously
made to the Class A-4 Certificateholders.
CLASS A-4 DISTRIBUTION AMOUNT: As to any Distribution Date, the total
amount distributed to the Class A-4 Certificateholders pursuant to Section
5.02.
CLASS A-4 INTEREST DISTRIBUTION AMOUNT: As to any Distribution Date, an
amount equal to the sum of (a) one month's interest at the Class A-4
Pass-Through Rate on the Class A-4 Certificate Balance as of such
Distribution Date (before giving effect to the principal distributions on
such Distribution Date) and (b) any Class A-4 Unpaid Interest Shortfall.
CLASS A-4 INTEREST SHORTFALL: As to any Distribution Date, any amount
by which the amount distributed to Holders of Class A-4 Certificates on such
Distribution Date is less than the
5
amount computed pursuant to clause (a) of the definition of "Class A-4
Interest Distribution Amount."
CLASS A-4 PASS-THROUGH RATE: 6.11% per annum.
CLASS A-4 UNPAID INTEREST SHORTFALL: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class A-4 Interest Shortfalls
for prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class A-4 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at
the Class A-4 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
CLASS A-5 CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in
EXHIBIT B-5 and EXHIBIT C hereto.
CLASS A-5 CERTIFICATE BALANCE: At any time, the Initial Class A-5
Certificate Balance minus the sum of all principal distributions previously
made to the Class A-5 Certificateholders.
CLASS A-5 DISTRIBUTION AMOUNT: As to any Distribution Date, the total
amount distributed to the Class A-5 Certificateholders pursuant to Section
5.02.
CLASS A-5 INTEREST DISTRIBUTION AMOUNT: As to any Distribution Date, an
amount equal to the sum of (a) one month's interest at the Class A-5
Pass-Through Rate on the Class A-5 Certificate Balance as of such
Distribution Date (before giving effect to the principal distributions on
such Distribution Date) and (b) any Class A-5 Unpaid Interest Shortfall.
CLASS A-5 INTEREST SHORTFALL: As to any Distribution Date, any amount
by which the amount distributed to Holders of Class A-5 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of
the definition of "Class A-5 Interest Distribution Amount."
CLASS A-5 PASS-THROUGH RATE: 6.20% per annum.
CLASS A-5 UNPAID INTEREST SHORTFALL: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class A-5 Interest Shortfalls
for prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class A-5 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at
the Class A-5 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
CLASS A-6 CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in
EXHIBIT B-6 and EXHIBIT C hereto.
CLASS A-6 CERTIFICATE BALANCE: At any time, the Initial Class A-6
Certificate Balance minus the sum of all principal distributions previously
made to the Class A-6 Certificateholders.
CLASS A-6 DISTRIBUTION AMOUNT: As to any Distribution Date, the total
amount distributed to the Class A-6 Certificateholders pursuant to Section
5.02.
6
CLASS A-6 INTEREST DISTRIBUTION AMOUNT: As to any Distribution Date, an
amount equal to the sum of (a) one month's interest at the Class A-6
Pass-Through Rate on the Class A-6 Certificate Balance as of such
Distribution Date (before giving effect to the principal distributions on
such Distribution Date) and (b) any Class A-6 Unpaid Interest Shortfall.
CLASS A-6 INTEREST SHORTFALL: As to any Distribution Date, any amount
by which the amount distributed to Holders of Class A-6 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of
the definition of "Class A-6 Interest Distribution Amount."
CLASS A-6 PASS-THROUGH RATE: 6.24% per annum.
CLASS A-6 UNPAID INTEREST SHORTFALL: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class A-6 Interest Shortfalls
for prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class A-6 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at
the Class A-6 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
CLASS A-7 CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in
EXHIBIT B-7 and EXHIBIT C hereto.
CLASS A-7 CERTIFICATE BALANCE: At any time, the Initial Class A-7
Certificate Balance minus the sum of all principal distributions previously
made to the Class A-7 Certificateholders.
CLASS A-7 DISTRIBUTION AMOUNT: As to any Distribution Date, the total
amount distributed to the Class A-7 Certificateholders pursuant to Section
5.02.
CLASS A-7 INTEREST DISTRIBUTION AMOUNT: As to any Distribution Date, an
amount equal to the sum of (a) one month's interest at the Class A-7
Pass-Through Rate on the Class A-7 Certificate Balance as of such
Distribution Date (before giving effect to the principal distributions on
such Distribution Date) and (b) any Class A-7 Unpaid Interest Shortfall.
CLASS A-7 INTEREST SHORTFALL: As to any Distribution Date, any amount
by which the amount distributed to the Holders of Class A-7 Certificates on
such Distribution Date is less than the amount computed pursuant to clause
(a) of the definition of "Class A-7 Interest Distribution Amount."
CLASS A-7 PASS-THROUGH RATE: The lesser of (a) 6.55% per annum and (b)
the Net Weighted Average Contract Rate.
CLASS A-7 UNPAID INTEREST SHORTFALL: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class A-7 Interest Shortfalls
for prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class A-7 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at
the Class A-7 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
7
CLASS B CERTIFICATE BALANCE: As to any Distribution Date, the sum of
the Class B-1 and Class B-2 Certificate Balances (before giving effect to the
principal distributions on such Distribution Date).
CLASS B-1 CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in
EXHIBIT B-9 and EXHIBIT C hereto.
CLASS B-1 CERTIFICATE BALANCE: At any time, the Initial Class B-1
Certificate Balance minus the sum of all principal distributions previously
made to the Class B-1 Certificateholders.
CLASS B-1 DISTRIBUTION AMOUNT: As to any Distribution Date, the total
amount distributed to the Class B-1 Certificateholders pursuant to Section
5.02.
CLASS B-1 INTEREST DISTRIBUTION AMOUNT: As to any Distribution Date, an
amount equal to the sum of (a) one month's interest at the Class B-1
Pass-Through Rate on the Class B-1 Certificate Balance as of such
Distribution Date (before giving effect to the principal distributions on
such Distribution Date) and (b) any Class B-1 Unpaid Interest Shortfall.
CLASS B-1 INTEREST SHORTFALL: As to any Distribution Date, any amount
by which the amount distributed to Holders of Class B-1 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of
the definition of "Class B-1 Interest Distribution Amount."
CLASS B-1 PASS-THROUGH RATE: The lesser of (a) 7.93% per annum and (b)
the Net Weighted Average Contract Rate.
CLASS B-1 UNPAID INTEREST SHORTFALL: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class B-1 Interest Shortfalls
for prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class B-1 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at
the Class B-1 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
CLASS B-2 CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in
EXHIBIT B-10 and EXHIBIT C hereto.
CLASS B-2 CERTIFICATE BALANCE: At any time, the Initial Class B-2
Certificate Balance minus the sum of all principal distributions previously
made to the Class B-2 Certificateholders.
CLASS B-2 DISTRIBUTION AMOUNT: As to any Distribution Date, the total
amount distributed to the Class B-2 Certificateholders pursuant to Section
5.02.
CLASS B-2 INTEREST DISTRIBUTION AMOUNT: As to any Distribution Date, an
amount equal to the sum of (a) one month's interest at the Class B-2
Pass-Through Rate on the Class B-2 Certificate Balance as of such
Distribution Date (before giving effect to the principal distributions on
such Distribution Date) and (b) any Class B-2 Unpaid Interest Shortfall.
CLASS B-2 INTEREST SHORTFALL: As to any Distribution Date, any amount
by which the amount distributed to Holders of Class B-2 Certificates on such
Distribution Date is less than the
8
amount computed pursuant to clause (a) of the definition of "Class B-2
Interest Distribution Amount."
CLASS B-2 PASS-THROUGH RATE: The lesser of (a) 7.60% per annum and (b)
the Net Weighted Average Contract Rate.
CLASS B-2 UNPAID INTEREST SHORTFALL: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class B-2 Interest Shortfalls
for prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class B-2 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at
the Class B-2 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
CLASS M CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in
EXHIBIT B-8 and EXHIBIT C hereto.
CLASS M CERTIFICATE BALANCE: At any time, the Initial Class M
Certificate Balance minus the sum of all principal distributions previously
made to the Class M Certificateholders.
CLASS M DISTRIBUTION AMOUNT: As to any Distribution Date, the total
amount distributed to the Class M Certificateholders pursuant to Section 5.02.
CLASS M INTEREST DISTRIBUTION AMOUNT: As to any Distribution Date, an
amount equal to the sum of (a) one month's interest at the Class M
Pass-Through Rate on the Class M Certificate Balance as of such Distribution
Date (before giving effect to the principal distributions on such
Distribution Date) and (b) any Class M Unpaid Interest Shortfall.
CLASS M INTEREST SHORTFALL: As to any Distribution Date, any amount by
which the amount distributed to Holders of Class M Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of
the definition of "Class M Interest Distribution Amount."
CLASS M PASS-THROUGH RATE: The lesser of (a) 6.83% per annum and (b)
the Net Weighted Average Contract Rate.
CLASS M UNPAID INTEREST SHORTFALL: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class M Interest Shortfalls for
prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class M Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at
the Class M Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
CLASS R CERTIFICATE: Any one of the Certificates, executed and
authenticated as provided herein, substantially in the form set forth in
EXHIBIT D hereto.
CLOSING DATE: June 25, 1998.
CODE: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
9
COLLECTED SCHEDULED PAYMENTS: As to any Distribution Date, (a) the
amount on deposit in the Certificate Account as of the end of the related
Collection Period, less (b) the sum of (i) the aggregate of all Partial
Prepayments collected during such Collection Period, (ii) the aggregate of
all payments collected during such Collection Period on Contracts that were
prepaid in full during such Collection Period (less the aggregate of the
scheduled payments due on such Contracts that were delinquent as of the
beginning of such Collection Period and recovered out of such collections),
(iii) the aggregate of the Net Liquidation Proceeds collected in respect of
all Contracts that became Liquidated Contracts during such Collection Period
(less the aggregate of scheduled payments due on such Contracts that were
delinquent at the beginning of such Collection Period and recovered out of
such collections and less any Repossession Profits collected during such
Collection Period), (iv) the aggregate of the Repurchase Prices of all
Contracts that were repurchased by a Contract Seller pursuant to Section 3.05
(less the aggregate of scheduled payments due on such Contracts that were
delinquent at the beginning of such Collection Period and recovered out of
such collections), (v) the amounts permitted to be withdrawn by the Servicer
from the Certificate Account pursuant to clauses (i), (ii), (iii), (iv), (v)
and (vii) of Section 5.03, and (vi) amounts representing Excess Contract
Payments.
COLLECTION PERIOD: With respect to any Distribution Date, the calendar
month preceding the month of the Distribution Date.
COMPUTER TAPE: The computer tape generated by the Servicer on behalf of
the Contract Sellers which provides information relating to the Contracts
sold by the Contract Sellers, and includes the master file and the history
file.
CONTRACT: Any one of the manufactured housing installment sale
contracts or installment loan agreements, including any Land Home Contracts,
described in the Contract Schedule and constituting part of the corpus of the
Trust Fund, which Contracts are to be sold and assigned by the Contract
Sellers to the Trustee and which are the subject of this Agreement. The
Contracts include all related security interests and any and all rights to
receive payments which are due pursuant thereto from and after the Cut-Off
Date, but exclude any rights to receive payments which were due pursuant
thereto prior to the Cut-Off Date.
CONTRACT FILE: As to each Contract other than a Land Home Contract, (a)
the original copy of the Contract, (b) the original title document issued to
BankAmerica Housing Services as secured lender or agent therefor for the
related Manufactured Home, unless the laws of the jurisdiction in which the
related Manufactured Home is located do not provide for the issuance of any
title documents for manufactured housing to secured lenders, (c) evidence of
one or more of the following types of perfection of the security interest in
favor of BankAmerica Housing Services as secured lender or agent therefor in
the related Manufactured Home granted by such Contract, as appropriate: (1)
notation of such security interest on the title document, (2) a financing
statement meeting the requirements of the UCC, with evidence of recording in
the appropriate offices indicated thereon, or (3) such other evidence of
perfection of a security interest in a manufactured housing unit as is
customary in such jurisdiction, (d) the assignment of the Contract from the
manufactured housing dealer to BankAmerica Housing Services, if any,
including any intervening assignments, and (e) any extension, modification or
waiver agreement(s).
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CONTRACT POOL: The pool of Contracts held in the Trust Fund.
CONTRACT RATE: With respect to each Contract, the per annum rate of
interest borne by such Contract, as set forth in such Contract.
CONTRACT SCHEDULE: The list identifying each Contract, as amended from
time to time, constituting part of the corpus of the Trust Fund, which list is
attached hereto as EXHIBIT A and which (a) identifies each Contract by contract
number and name and address of the Obligor, and (b) sets forth as to each
Contract (i) the Scheduled Principal Balance as of the Cut-Off Date, (ii) the
amount of each monthly payment due from the Obligor, (iii) the Contract Rate,
and (iv) the maturity date.
CONTRACT SELLERS: As to any Contract sold by it, BAFSB or Bank of America,
as the case may be, in each case in its capacity as seller of certain Contracts
to the Trust Fund pursuant to this Agreement; it being understood that wherever
the term "Contract Seller" is used hereunder, it is meant to refer to each such
Contract Seller with respect to the Contracts sold by it.
CORPORATE TRUST OFFICE: The principal corporate trust office of the
Trustee at which, at any particular time, its corporate trust business shall be
administered, which office at the date of execution of this Agreement is located
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate
Trust Services Division, except that for purposes of Section 9.11, such term
shall mean the office or agency of the Trustee in the Borough of Manhattan, the
City of New York, which office at the date hereof is located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
CUMULATIVE REALIZED LOSSES: As to any Distribution Date, the Aggregate Net
Liquidation Losses for the period from the Cut-Off Date through the end of the
Collection Period preceding the month of such Distribution Date.
CURRENT REALIZED LOSS RATIO: As to any Distribution Date, the annualized
percentage equivalent of the fraction, the numerator of which is the sum of the
Aggregate Net Liquidation Losses for the three preceding Collection Periods and
the denominator of which is the arithmetic average of the Pool Scheduled
Principal Balances for such Distribution Date and the preceding two Distribution
Dates.
CUT-OFF DATE: The close of business on May 31, 1998.
CUT-OFF DATE POOL PRINCIPAL BALANCE: $685,982,617.84.
DEFICIENCY: With respect to any Contract that is a Liquidated Contract,
the amount by which (i) the outstanding principal balance of such Contract, plus
accrued and unpaid interest thereon at the related Contract Rate to the Due Date
for such Contract in the Collection Period in which such Contract became a
Liquidated Contract exceeds (ii) the Net Liquidation Proceeds for such Contract.
DEFICIENCY AMOUNT: With respect to any Contract, the amount, if any, that
the Servicer collects directly from the Obligor with respect to any Deficiency.
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DEFICIENCY EVENT: As defined in Secion 5.02(a).
DEFICIENCY PERCENTAGE: 35%.
DEFINITIVE CERTIFICATES: As defined in Section 6.08.
DENOMINATION: With respect to each Regular Certificate, the amount set
forth on the face thereof as the "Initial Principal Balance of this
Certificate." With respect to each Class R Certificate, the Percentage Interest
appearing on the face thereof.
DEPOSITORY: The initial Depository shall be the Depository Trust Company,
the nominee of which is Cede & Co., or any other organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended. The Depository shall initially be the registered Holder of
the Global Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of the Uniform Commercial Code of
the State of New York.
DEPOSITORY AGREEMENT: The agreement among the Contract Sellers, the
Trustee and the initial Depository, dated as of the Closing Date, substantially
in the form of EXHIBIT I.
DEPOSITORY PARTICIPANT: A broker, dealer, bank or other financial
institution or other person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
DETERMINATION DATE: With respect to any Distribution Date, the third
Business Day prior to such Distribution Date.
DISQUALIFIED ORGANIZATION: Any organization defined as a "disqualified
organization" under Section 860E(e)(5) of the Code, which includes any of the
following: (i) the United States, any State or political subdivision thereof,
any possession of the United States, or any agency or instrumentality of any of
the foregoing (other than an instrumentality which is a corporation if all of
its activities are subject to tax and, except for the FHLMC, a majority of its
board of directors is not selected by such governmental unit), (ii) a foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381(a)(2)(C) of the Code and
(v) any other Person so designated by the Trustee based upon an Opinion of
Counsel that the holding of an Ownership Interest in a Class R Certificate by
such Person may cause the Trust Fund, or any Person having an Ownership Interest
in any Class of Certificates (other than such Person) to incur a liability for
any federal tax imposed under the Code that would not otherwise be imposed but
for the Transfer of an Ownership Interest in a Certificate to such Person. The
terms "United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
12
DISTRIBUTION DATE: The 10th day of each calendar month after the initial
issuance of the Certificates, or if such 10th day is not a Business Day, the
next succeeding Business Day, commencing July, 1998.
DUE DATE: The day of the month on which each scheduled payment of
principal and interest is due on a Contract, exclusive of any days of grace.
ELIGIBLE ACCOUNT: An account that is one of the following (i) an account
maintained with a FDIC-insured depository institution which is subject to
examination by federal or state authorities and the commercial paper of which
has a rating of P-1 from ▇▇▇▇▇'▇ (if rated by ▇▇▇▇▇'▇) and F-1 from Fitch (if
rated by Fitch) or the long-term deposits or long-term unsecured senior debt
obligations of which are in one of the two highest rating categories of ▇▇▇▇▇'▇
and Fitch (if rated by Fitch), or maintained with a depository institution that
is otherwise acceptable to each Rating Agency (as evidenced by a letter from
each Rating Agency to such effect), (ii) a trust account maintained with the
Trustee or, if the Certificate Administrator is not the Trustee, with the
Certificate Administrator, in which the funds are either held uninvested or
invested solely in Eligible Investments, or (iii) an account that is otherwise
acceptable to the Rating Agencies, as evidenced by a letter from each Rating
Agency, without a reduction or withdrawal of the rating of the Certificates.
ELIGIBLE INVESTMENTS: One or more of the following in the order of
priority specified herein:
(a) any common trust fund, collective investment trust or money
market fund acceptable to Fitch and rated Aaa by ▇▇▇▇▇'▇; and
(b) other obligations or securities that are acceptable to each
Rating Agency as an Eligible Investment hereunder and will not result in a
reduction in or withdrawal of the then current rating or ratings of the
Certificates, as evidenced by a letter to such effect from each Rating Agency;
provided, however, that no investments in "interest only" stripped obligations
shall qualify as an Eligible Investment pursuant to this definition.
ELIGIBLE SUBSTITUTE CONTRACT: As to any Replaced Contract for which such
Eligible Substitute Contract is being substituted pursuant to Section 3.05(b), a
Contract that (a) as of the date of its substitution, satisfies all of the
representations and warranties (which, except when expressly stated to be as of
origination, shall be deemed to be determined as of the date of its substitution
rather than as of the Cut-Off Date or the Closing Date) in Section 3.02 and does
not cause any of the representations and warranties in Section 3.03, after
giving effect to such substitution, to be incorrect, (b) after giving effect to
the scheduled payment due in the month of such substitution, has a Scheduled
Principal Balance that is not greater than the Scheduled Principal Balance of
such Replaced Contract, (c) has a Contract Rate that is at least equal to the
Contract Rate of such Replaced Contract, (d) has a remaining term to scheduled
maturity that is not greater than the remaining term to scheduled maturity of
the Replaced Contract, and (e) has not been delinquent for more than 31 days as
to any scheduled payment due within twelve months
13
of the date of its substitution. In addition, a Substitute Contract which is
a Land Home Contract may only be used to replace a Replaced Contract which
was a Land Home Contract.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA RESTRICTED CERTIFICATE: Any Class M, Class B-1, Class B-2 or Class R
Certificate.
EVENT OF DEFAULT: Any one of the Events of Default described in Section
8.01 hereof.
EXCESS CONTRACT PAYMENT: With respect to any Contract, any portion of a
payment of principal and interest on such Contract, that (a) is in excess of the
scheduled payment (or is an integral multiple thereof and has not been
identified by the Obligor as a Principal Prepayment), (b) is not a Principal
Prepayment and (c) is not part of the Liquidation Proceeds of such Contract or
the Repurchase Price of such Contract paid pursuant to Section 3.05.
EXTENSION FEE: Any extension fee paid by the Obligor on a Contract.
FDIC: The Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
FIDELITY BOND: A fidelity bond to be maintained by the Servicer pursuant
to Section 4.10.
FIRST DISTRIBUTION DATE: July 10, 1998.
FITCH: Fitch IBCA, Inc. or any successor thereto.
FNMA: The Federal National Mortgage Association, a federally chartered and
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, or any successor thereto.
FORMULA PRINCIPAL DISTRIBUTION AMOUNT: As to any Distribution Date, an
amount equal to the sum of (a) the Total Regular Principal Amount for such
Distribution Date and (b) any previously undistributed shortfalls in the
distribution of the Total Regular Principal Amount in respect of prior
Distribution Dates.
FRACTIONAL INTEREST: As to any Certificate, the product of (a) the
Percentage Interest evidenced by such Certificate multiplied by (b) the amount
derived from dividing the Certificate Balance of the Class represented by such
Certificate by the aggregate Certificate Balances of each Class.
GCC: GreenPoint Credit Corporation, a Delaware corporation, its successors
or assigns.
GLOBAL CERTIFICATE: Any Certificate registered in the name of the
Depository or its nominee, ownership of which is reflected on the books of the
Depository or on the books of a Person maintaining an account with such
Depository (directly or as an indirect participant in accordance with the rules
of such Depository and as described in Section 6.06). On the Closing
14
Date, only the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class
A-6, Class A-7, Class M and Class B-1 Certificates will be Global
Certificates.
HAZARD INSURANCE POLICY: With respect to each Contract, the policy of fire
and extended coverage insurance (and federal flood insurance, if applicable)
required to be maintained for the related Manufactured Home, as provided in
Section 4.09 (which may be a blanket insurance policy maintained by the Servicer
in accordance with the terms and conditions of Section 4.09).
INDEPENDENT CONTRACTOR: Either (i) any Person (other than the Servicer or
the Trustee) that would be an "independent contractor" with respect to the Trust
Fund within the meaning of Section 856(d)(3) of the Code if the Trust Fund were
a real estate investment trust (except that the ownership test set forth in that
Section shall be considered to be met by any Person that owns, directly or
indirectly, 35 percent or more of any Class of Certificates, or such other
interest in any Class of Certificates as is set forth in an Opinion of Counsel,
which shall be at no expense to the Trustee or the Trust Fund, delivered to the
Trustee), so long as the Trust Fund does not receive or derive any income from
such person and provided that the relationship between such Person and the Trust
Fund is at arm's length, all within the meaning of Treasury Regulation Section
1.856-4(b)(5), or (ii) any other Person (including the Servicer and the Trustee)
upon receipt by the Trustee of an Opinion of Counsel, which shall be at no
expense to the Trustee or the Trust Fund, to the effect that the taking of any
action in respect of any REO Property by such Person, subject to any conditions
therein specified, that is otherwise herein contemplated to be taken by an
Independent Contractor will not cause such REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(determined without regard to the exception applicable for purposes of Section
860D(a) of the Code).
INITIAL CLASS A-1 CERTIFICATE BALANCE: As set forth in Section 6.01.
INITIAL CLASS A-2 CERTIFICATE BALANCE: As set forth in Section 6.01.
INITIAL CLASS A-3 CERTIFICATE BALANCE: As set forth in Section 6.01.
INITIAL CLASS A-4 CERTIFICATE BALANCE: As set forth in Section 6.01.
INITIAL CLASS A-5 CERTIFICATE BALANCE: As set forth in Section 6.01.
INITIAL CLASS A-6 CERTIFICATE BALANCE: As set forth in Section 6.01.
INITIAL CLASS A-7 CERTIFICATE BALANCE: As set forth in Section 6.01.
INITIAL CLASS M CERTIFICATE BALANCE: As set forth in Section 6.01.
INITIAL CLASS B-1 CERTIFICATE BALANCE: As set forth in Section 6.01.
INITIAL CLASS B-2 CERTIFICATE BALANCE: As set forth in Section 6.01.
INTEREST ACCRUAL PERIOD: With respect to any Distribution Date and each
Class of Regular Certificates, the one month period beginning on the tenth day
of the month of the month
15
preceding the month in which such Distribution Date occurs and ending on the
ninth day of the month in which such Distribution Date.
LAND HOME CONTRACT: A Contract that is secured by a mortgage or deed of
trust on real estate on which the related Manufactured Home is situated (as
well as by such related Manufactured Home).
LAND HOME CONTRACT FILE: As to each Land Home Contract, (a) the
original copy of the Land Home Contract, (b) the original related Mortgage
with evidence of recording thereon (or, if the original Mortgage has not yet
been returned by the applicable recording office, a copy thereof, certified
by such recording office, which will be replaced by the original Mortgage
when it is so returned) and any title document for the related Manufactured
Home, (c) the assignment of the Land Home Contract from the originator (if
other than a Contract Seller) to the applicable Contract Seller, (d) if such
Land Home Contract was originated by a Contract Seller, an endorsement of
such Land Home Contract by the applicable Contract Seller, and (e) any
extension, modification or waiver agreement(s).
LATE PAYMENT FEES: Any late payment fees paid by Obligors on Contracts
after all sums received have been allocated first to regular installments due
or overdue and all such installments are then paid in full.
LATEST DUE DATE: The latest date on which any Contract matures.
LIQUIDATED CONTRACT: Any defaulted Contract as to which the Servicer
has determined that all amounts (other than amounts in respect of any
Deficiency) which it expects to recover from or on account of such Contract
have been recovered; PROVIDED that any defaulted Contract in respect of which
the related Manufactured Home and, in the case of Land Home Contracts,
Mortgaged Property, has been realized upon and liquidated and the proceeds of
such disposition have been received shall be deemed to be a Liquidated
Contract.
LIQUIDATION EXPENSES: All reasonable out-of-pocket expenses (exclusive
of overhead expenses) which are incurred by the Servicer in connection with
the liquidation of any defaulted Contract, on or prior to the date on which
the related Manufactured Home, and, in the case of Land Home Contracts,
Mortgaged Property, is liquidated, including legal fees and expenses, any
unreimbursed amount expended by the Servicer pursuant to Sections 4.06, 4.07,
4.09 or 4.13 (to the extent such amount is reimbursable under the terms of
Sections 4.06, 4.07, 4.09 or 4.13, as the case may be) with respect to such
Contract, and any unreimbursed expenditures for property taxes or other taxes
or charges or for property restoration or preservation that are related to
such liquidation.
LIQUIDATION PROCEEDS: Cash (including insurance proceeds other than
those applied to the restoration of the related Manufactured Home or
Mortgaged Property or released to the related Obligor in accordance with the
normal servicing procedures of the Servicer, but excluding deficiency
amounts) received in connection with the liquidation of defaulted Contracts,
whether through repossession or otherwise.
16
LOAN-TO-VALUE RATIO: The fraction, expressed as a percentage, the
numerator of which is the original principal balance of the related Contract
and the denominator of which is the Original Value of the related
Manufactured Home.
MAJORITY IN INTEREST: As to any Class of Regular Certificates, the
Holders of Certificates of such Class evidencing, in the aggregate, at least
51% of the Percentage Interests evidenced by all Certificates of such Class.
MANUFACTURED HOME: A unit of manufactured housing which meets the
requirements of Section 25(e)(10) of the Code, securing the indebtedness of
the Obligor under the related Contract.
MINIMUM TERMINATION AMOUNT: As of any time after the Pool Scheduled
Principal Balance is less than 10% of the Cut-Off Date Pool Principal
Balance, whether in the case of a Termination Auction or a purchase of
Contracts by the Servicer pursuant to Section 10.01(a)(ii) hereof, an amount
equal to the sum of (a) the Class A-1 Certificate Balance, (b) any shortfall
in interest due to the Class A-1 Certificateholders in respect of prior
Distribution Dates, (c) one month's interest on the Class A-1 Certificate
Balance at the Class A-1 Pass-Through Rate, (d) the Class A-2 Certificate
Balance, (e) any shortfall in interest due to the Class A-2
Certificateholders in respect of prior Distribution Dates, (f) one month's
interest on the Class A-2 Certificate Balance at the Class A-2 Pass-Through
Rate, (g) the Class A-3 Certificate Balance, (h) any shortfall in interest
due to the Class A-3 Certificateholders in respect of prior Distribution
Dates, (i) one month's interest on the Class A-3 Certificate Balance at the
Class A-3 Pass-Through Rate, (j) the Class A-4 Certificate Balance, (k) any
shortfall in interest due to the Class A-4 Certificateholders in respect of
prior Distribution Dates, (l) one month's interest on the Class A-4
Certificate Balance at the Class A-4 Pass-Through Rate, (m) the Class A-5
Certificate Balance, (n) any shortfall in interest due to the Class A-5
Certificateholders in respect of prior Distribution Dates, (o) one month's
interest on the Class A-5 Certificate Balance at the Class A-5 Pass-Through
Rate, (p) the Class A-6 Certificate Balance, (q) any shortfall in interest
due to the Class A-6 Certificateholders in respect of prior Distribution
Dates, (r) one month's interest on the Class A-6 Certificate Balance at the
Class A-6 Pass-Through Rate, (s) the Class A-7 Certificate Balance, (t) any
shortfall in interest due to the Class A-7 Certificateholders in respect of
prior Distribution Dates, (u) one month's interest on the Class A-7
Certificate Balance at the Class A-7 Pass-Through Rate, (v) the Class M
Certificate Balance, (w) any shortfall in interest due to the Class M
Certificateholders in respect of prior Distribution Dates, (x) one month's
interest on the Class M Certificate Balance at the Class M Pass-Through Rate,
(y) the Class B-1 Certificate Balance, (z) any shortfall in interest due to
the Class B-1 Certificateholders in respect of prior Distribution Dates,
(aa) one month's interest on the Class B-1 Certificate Balance at the Class B-1
Pass-Through Rate, (bb) the Class B-2 Certificate Balance, (cc) any shortfall
in interest due to the Class B-2 Certificateholders in respect of prior
Distribution Dates, and (dd) one month's interest on the Class B-2
Certificate Balance at the Class B-2 Pass-Through Rate.
MONTHLY ADVANCE: As to any Distribution Date, the lesser of (1) (a) the
amount, if any, by which (i) the Scheduled Amount exceeds (ii) the Collected
Scheduled Payments, less (b) the amount of any scheduled payment on a
Contract due during the related Collection Period which the Servicer has
determined would be a Nonrecoverable Advance if an advance in respect of such
scheduled payment were made and (2) the amount by which the Available
Distribution Amount
17
(exclusive of the Monthly Advance component thereof) for such Distribution
Date is less than the sum of (a) the Total Regular Principal Amount and
(b) the sum of the Class A-1 Interest Distribution Amount, the Class A-2
Interest Distribution Amount, the Class A-3 Interest Distribution Amount, the
Class A-4 Interest Distribution Amount, the Class A-5 Interest Distribution
Amount, the Class A-6 Interest Distribution Amount, the Class A-7 Interest
Distribution Amount, the Class M Interest Distribution Amount, the Class B-1
Interest Distribution Amount and the Class B-2 Interest Distribution Amount.
MONTHLY ADVANCE REIMBURSEMENT AMOUNT: Any amount received or deemed to
be received by the Servicer pursuant to Section 5.01(b) or (c) in reimbursement
of a Monthly Advance made out of its own funds.
MONTHLY REPORT: The monthly report described in Section 5.04.
MONTHLY SERVICING FEE: As of any Distribution Date, an amount equal to
one-twelfth of 1.00% per annum (or, in the case of a successor Servicer
engaged at any time after BAFSB is no longer the Servicer, the percentage
agreed upon pursuant to Section 7.07) of the Pool Scheduled Principal Balance
for such Distribution Date.
MOODY'S: ▇▇▇▇▇'▇ Investors Service, Inc. or any successor thereto.
MORTGAGE: The mortgage, deed of trust, security deed or similar
evidence of lien, creating a first lien on an estate in fee simple in the
real property securing a Land Home Contract.
MORTGAGED PROPERTY: The property subject to the lien of a Mortgage.
NET CONTRACT RATE: The rate of interest per annum borne by a Contract
minus the Annual Servicing Rate.
NET LIQUIDATION PROCEEDS: As to any Liquidated Contract, Liquidation
Proceeds net of the sum of (i) Liquidation Expenses, (ii) all accrued and
unpaid interest thereon through the date the related Contract becomes a
Liquidated Contract and (iii) any amount required to be paid to the Obligor
or any other Person with an interest in the Manufactured Home or Mortgaged
Property that is senior to the interest of the Trust Fund.
NET WEIGHTED AVERAGE CONTRACT RATE: As to any Distribution Date, the
weighted average (weighted by outstanding principal balance) of the Net
Contract Rates of all of the Contracts at the beginning of the related
Collection Period.
NON-UNITED STATES PERSON: Any Person other than a United States Person.
NONRECOVERABLE ADVANCE: Any advance made or proposed to be made
pursuant to Section 5.01 which the Servicer believes, in its good faith
judgment, is not, or if made would not be, ultimately recoverable from late
payments, Liquidation Proceeds or otherwise. In determining whether an
advance is or will be nonrecoverable, the Servicer need not take into account
that it might receive any amounts in a deficiency judgment. The
determination by the Servicer that any advance is, or if made would
constitute, a Nonrecoverable Advance, shall be evidenced by an
18
Officers' Certificate of the Servicer delivered to the Trustee and stating
the reasons for such determination.
OBLIGOR: Each Person who is indebted under a Contract or who has
acquired a Manufactured Home subject to a Contract.
OFFICER'S CERTIFICATE: A certificate (i) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Vice President
(however denominated), an Assistant Vice President, the Treasurer, the
Secretary, or one of the assistant treasurers or assistant secretaries of a
Contract Seller or the Servicer (or any other officer customarily performing
functions similar to those performed by any of the above designated officers
and also to whom, with respect to a particular matter, such matter is
referred because of such officer's knowledge of and familiarity with a
particular subject) or (ii) if provided for in this Agreement, signed by a
Servicing Officer and delivered to a Contract Seller and the Trustee, as the
case may be, as required by this Agreement.
OPINION OF COUNSEL: A written opinion of counsel, who may be the
in-house counsel for a Contract Seller or the Servicer, reasonably acceptable
to the Trustee and the Contract Sellers, as the case may be.
ORIGINAL VALUE: With respect to any Manufactured Home that was new at
the time the related Contract was originated, the retail stated cash sale
price of such Manufactured Home, plus taxes and, to the extent financed under
such Contract, closing fees paid to third parties, insurance and prepaid
finance charges. With respect to any Manufactured Home that was used at the
time the related Contract was originated, the total delivered sales price of
such Manufactured Home, plus taxes and, to the extent financed under such
Contract, closing fees paid to third parties, insurance and prepaid finance
charges.
OUTSTANDING: With respect to any Contract as to the time of reference
thereto, a Contract that has not been fully prepaid, has not become a
Liquidated Contract, and has not been repurchased pursuant to Section 3.05
prior to such time of reference.
OUTSTANDING AMOUNT ADVANCED: As to any Distribution Date, the aggregate
of all Monthly Advances made by the Servicer out of its own funds pursuant to
Section 5.01 less the aggregate of all Monthly Advance Reimbursement Amounts
actually received by the Servicer prior to such Distribution Date.
OWNERSHIP INTEREST: Any legal or beneficial, direct or indirect,
ownership or other interest.
PARTIAL PREPAYMENT: Any Principal Prepayment other than a Principal
Prepayment in Full.
PAYING AGENT: Any paying agent appointed pursuant to Section 9.13.
PERCENTAGE INTEREST: As to any Certificate (other than a Class R
Certificate) of any Class, the percentage interest evidenced thereby in
distributions required to be made on the Certificates of such Class, such
percentage interest being equal to the percentage obtained by dividing the
original denomination of such Certificate by the aggregate of the original
denominations of all of
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the Certificates of such Class; and as to a Class R Certificate, the
percentage set forth on the face thereof.
PERMITTED TRANSFEREE: Any Person other than (i) a Disqualified
Organization or (ii) a Non-United States Person.
PERSON: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
POOL FACTOR: As of any Distribution Date and as to any Class of
Certificates, the percentage obtained by dividing the Class A-1 Certificate
Balance, the Class A-2 Certificate Balance, the Class A-3 Certificate
Balance, Class A-4 Certificate Balance, the Class A-5 Certificate Balance,
the Class A-6 Certificate Balance, the Class A-7 Certificate Balance, the
Class M Certificate Balance, the Class B-1 Certificate Balance or the Class B-2
Certificate Balance, as the case may be (after giving effect to the principal
distributions on such Distribution Date), by the Initial Class A-1
Certificate Balance, the Initial Class A-2 Certificate Balance, the Initial
Class A-3 Certificate Balance, the Initial Class A-4 Certificate Balance, the
Initial Class A-5 Certificate Balance, the Initial Class A-6 Certificate
Balance, the Initial Class A-7 Certificate Balance, the Initial Class M
Certificate Balance, the Initial Class B-1 Certificate Balance or the Initial
Class B-2 Certificate Balance, as the case may be, carried out to seven
decimal places.
POOL SCHEDULED PRINCIPAL BALANCE: As to any Distribution Date, the
Cut-Off Date Pool Principal Balance less the aggregate of the Total Regular
Principal Amounts for all prior Distribution Dates.
PRINCIPAL PREPAYMENT: (i) Subject to clause (ii) of this definition,
with respect to any Contract, any payment or any portion thereof or other
recovery on such Contract (other than a Liquidated Contract or a Contract
repurchased pursuant to Section 3.05) that exceeds the amount necessary to
bring such Contract current as of any Due Date unless (A) the related Obligor
has notified or confirmed with the Servicer that such payment is to be
applied as Scheduled Payments for future Due Dates or (B) the amount of such
excess payment is approximately equal (subject to a variance of plus or minus
10%) to the amount of the Scheduled Payment on the next Due Date;
(ii) notwithstanding the provisions of the preceding clause (i), if any
payment or any portion thereof or other recovery on a Contract (other than a
Liquidated Contract or a Contract repurchased pursuant to Section 3.05) is
sufficient to pay the outstanding principal balance of such Contract, all
accrued and unpaid interest at the Contract Rate to the payment date and, at
the option of the Servicer, all other outstanding amounts owing on such
Contract, the portion of the payments or recoveries on such Contract during
such Collection Period that is equal to the Scheduled Principal Balance of
such Contract after giving effect to the scheduled payment on such Contract
due in such Collection Period; and (iii) any cash deposit made with respect
to a Contract pursuant to Section 3.05.
PRINCIPAL PREPAYMENT IN FULL: Any Principal Prepayment specified in
clause (ii) of the definition of the term "Principal Prepayment."
PRIVATE CERTIFICATE: Any Class B-2 or Class R Certificate.
20
RATING AGENCY: Either Moody's or Fitch.
RECORD DATE: With respect to any Distribution Date, the close of
business on the Business Day preceding such Distribution Date.
REGULAR CERTIFICATES: Any one of the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3,
Class A-4, Class A-5, Class A-6, Class A-7, Class M, Class B-1 or Class B-2
Certificates.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
REMIC ADMINISTRATOR: BAFSB, or any successor thereto meeting the
requirements set forth in Section 4.17 (c).
REMIC PROVISIONS: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and proposed, temporary and final regulations and published
rulings, notices and announcements promulgated thereunder, as the foregoing
may be in effect from time to time as well as provisions of applicable state
laws.
REO ACCOUNT: As defined in Section 4.17.
REO PROPERTY: As defined in Section 4.17.
REPLACED CONTRACT: A Contract as to which a Contract Seller has a
Repurchase Obligation and which, at a Contract Seller's option, is replaced
in the Trust Fund by an Eligible Substitute Contract pursuant to Section 3.05.
REPOSSESSION PROFITS: As to any Distribution Date, the excess, if any,
of Net Liquidation Proceeds in respect of each Contract that became a
Liquidated Contract during the related Collection Period over the sum of the
remaining principal balance of such Contract plus accrued and unpaid interest
at the related Contract Rate on the remaining principal balance thereof from
the Due Date to which interest was last paid by the Obligor to the Due Date
in the month in which such Contract became a Liquidated Contract.
REPURCHASE OBLIGATION: The obligation of a Contract Seller, set forth
in Section 3.05, to repurchase the related Contracts as to which there exists
an uncured breach of a representation or warranty contained in Sections 3.02
or 3.03.
REPURCHASE PRICE: With respect to any Contract required to be
repurchased hereunder, an amount equal to the remaining principal amount
outstanding on such Contract as of the beginning of the month of repurchase
plus accrued interest from the Due Date with respect to which the Obligor
last made a payment to the Due Date in the Collection Period in which such
Contract is repurchased.
RESERVE ACCOUNT: The separate Eligible Account created and initially
maintained by the Trustee pursuant to Section 5.08 in the name of the Trustee
for the benefit of the Holders of the Certificates and designated "[Trustee]
in trust for registered holders of BankAmerica
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Manufactured Housing Contract Trust V, Senior/Subordinate Pass-Through
Certificates, Series 1998-2". Funds in the Reserve Account shall be held in
trust for the aforementioned Certificateholders for the uses and purposes set
forth in this Agreement.
RESERVE ACCOUNT CAP: As to any Distribution Date (after giving effect
to distributions due thereon) after the Closing Date and until none of the
Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7,
Class M and Class B-1 Certificates remain outstanding, the Reserve Account
Cap shall be the greater of $6,859,826 (which is 1.00% of the Cut-Off Date
Pool Principal Balance) or, if a Reserve Account Trigger has occurred,
$13,719,652 (which is 2.00% of the Cut-Off Date Pool Principal Balance) and
(ii) as to any Distribution Date (after giving effect to distributions due
thereon) after none of the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7, Class M and Class B-1 Certificates remain
outstanding, the Reserve Account Cap shall be the lesser of the then
outstanding Class B-2 Certificate Balance and the amount calculated pursuant
to clause (i).
RESERVE ACCOUNT DRAW AMOUNT: An amount which is equal to the lesser of
(a) the amount then on deposit in the Reserve Account and (b) the amount, if
any, by which the aggregate of amounts due to Certificateholders in clauses (i)
through (viii) of Section 5.02(a) exceeds the Available Distribution Amount on
such Distribution Date.
RESERVE ACCOUNT TRIGGER: As of any Distribution Date, a Reserve Account
Trigger will be in effect if any of the following conditions are in effect as
of such Distribution Date or were in effect for any of the immediately
preceding eleven Distribution Dates:
(1) the Cumulative Realized Losses as of such Distribution Date
exceed (a) if such Distribution Date is from and including July 1998 and up
to and including December 1998, 0.50% of the Cut-Off Date Pool Principal
Balance, (b) if such Distribution Date is from and including January 1999
and up to and including June 1999, 1.00% of the Cut-Off Date Pool Principal
Balance, (c) if such Distribution Date is from and including July 1999 and
up to and including December 1999, 1.50% of the Cut-Off Date Pool Principal
Balance, (d) if such Distribution Date is from and including January 2000
and up to and including June 2000, 2.25% of the Cut-Off Date Pool Principal
Balance, (e) if such Distribution Date is from and including July 2000 and
up to and including December 2000, 3.00% of the Cut-Off Date Pool Principal
Balance, (f) if such Distribution Date is from and including January 2001
and up to and including June 2001, 4.00% of the Cut-Off Date Pool Principal
Balance, (g) if such Distribution Date is from and including July 2001 and
up to and including December 2001, 5.00% of the Cut-Off Date Pool Principal
Balance, (h) if such Distribution Date is from and including January 2002
and up to and including June 2003, 6.00% of the Cut-Off Date Pool Principal
Balance, (i) if such Distribution Date is from and including July 2003 and
up to and including June 2004, 7.00% of the Cut-Off Date Pool Principal
Balance, (j) if such Distribution Date is from and including July 2004 and
up to and including June 2005, 8.50% of the Cut-Off Date Pool Principal
Balance, (k) if such Distribution Date is in or after July 2005, 9.5% of
the Cut-Off Date Pool Principal Balance;
(2) the Current Realized Loss Ratio as of such Distribution Date
exceeds 2.5%;
22
(3) the Average Sixty-Day Delinquency Ratio as of such Distribution
Date exceeds 3.5%; or
(4) the Average Thirty-Day Delinquency Ratio as of such Distribution
Date exceeds 5.5%.
RESPONSIBLE OFFICER: When used with respect to the Trustee, the Paying
Agent or the Certificate Administrator, the chairman or vice chairman of the
board of directors, the chairman or vice chairman of any executive committee
of the board of directors, the president, any vice president, any assistant
vice president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any assistant controller, or any
other officer customarily performing functions similar to those performed by
any of the above designated officers and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
SCHEDULED AMOUNT: As to any Distribution Date, the amount equal to the
aggregate of the scheduled payments that were due during the Collection
Period ending immediately prior to such Distribution Date in respect of
Contracts that were Outstanding immediately following such Collection Period
or whose last scheduled payment was due during such Collection Period.
SCHEDULED PAYMENT: As to any Distribution Date and each Contract, the
amount equal to the scheduled payment that was due during the Collection
Period ending immediately prior to such Distribution Date in respect of each
such Contract that was Outstanding immediately following such Collection
Period or whose last scheduled payment was due during such Collection Period.
SCHEDULED PRINCIPAL BALANCE: As to any Contract and any Distribution
Date, the principal balance of such Contract (before any adjustment by reason
of bankruptcy, moratorium or similar waiver or grace period) as of the Due
Date in the Collection Period next preceding such Distribution Date (or, with
respect to the First Distribution Date, as of the Cut-Off Date) as specified
in the amortization schedule for such Contract at the time relating thereto,
after giving effect to all previous Partial Prepayments, all previous
scheduled principal payments (whether or not paid) and to the scheduled
payment of principal due on such Due Date.
SCHEDULED PRINCIPAL REDUCTION AMOUNT: As to any Distribution Date,
(a) the sum of the scheduled payments due during the Collection Period ending
immediately prior to such Distribution Date in respect of all Contracts that
are Outstanding at the beginning of such Collection Period less (b) 1/12th of
the product of (i) the Pool Scheduled Principal Balance prior to giving
effect to the Total Regular Principal Amount for such Distribution Date, and
(ii) the weighted average Contract Rate for such Contracts, calculated on the
basis of the remaining principal balances of such Contracts as of the first
day of such Collection Period; PROVIDED that, on each anniversary of the
First Distribution Date (or, at the option of the Servicer, on more than one
Distribution Date, as selected by the Servicer, in each year), the Scheduled
Principal Reduction Amount shall equal the amount, reflecting any adjustments
by reason of bankruptcy, moratorium or similar waiver or grace period,
Principal Payments in Full, and other reductions, if any, necessary to cause
the Pool Scheduled Principal Balance for the Distribution Date next
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succeeding such Distribution Date to equal the aggregate of the Scheduled
Principal Balances for such Distribution Date.
SECURITIES ACT: The Securities Act of 1933, as amended.
SENIOR CERTIFICATES: The Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates, the Class A-4 Certificates, the
Class A-5 Certificates, the Class A-6 Certificates and the Class A-7
Certificates.
SENIOR CERTIFICATE BALANCE: As to any Distribution Date, the sum of the
Class A-1 Certificate Balance, the Class A-2 Certificate Balance, the Class A-3
Certificate Balance, the Class A-4 Certificate Balance, the Class A-5
Certificate Balance, the Class A-6 Certificate Balance and the Class A-7
Certificate Balance.
SERVICER: BAFSB, or its successors in interest or any successor Servicer
under this Agreement as provided by Section 7.06 or 7.07.
SERVICER DEFICIENCY AMOUNT: With respect to any Distribution Date, the
product of the Deficiency Percentage and the aggregate of the Deficiency
Amounts received during the immediately preceding Collection Period.
SERVICING FILE: All documents, records, and other items maintained by
the Servicer with respect to a Contract and not included in the corresponding
Contract File or the Land Home Contract, as applicable, including the credit
application, credit reports and verifications, appraisals, tax and insurance
records, payment records, insurance claim records, correspondence, and all
historical computerized data files.
SERVICING OFFICER: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Contracts whose name
appears on a list of servicing officers furnished to the Trustee by the
Servicer, as such list may from time to time be amended.
SIXTY-DAY DELINQUENCY RATIO: As to any Distribution Date, the
percentage equivalent of the fraction, the numerator of which is the
aggregate of the outstanding principal balances (as of the end of the
preceding Collection Period) of all Contracts (including Contracts in respect
of which the related Manufactured Home has been repossessed but not yet
liquidated) as to which a scheduled monthly payment thereon (without giving
effect to any adjustments thereto by reason of a bankruptcy or similar
proceeding of the Obligor or any extension or modification granted to such
Obligor) is delinquent 60 days or more as of the end of such Collection
Period and the denominator of which is the Pool Scheduled Principal Balance
for such Distribution Date.
STARTUP DAY: As defined in Section 4.17(b) hereof.
TAX: As defined in Section 4.17(g) hereof.
TAX MATTERS PERSON: The person designated as "tax matters person" in the
manner provided under Treasury regulation Section 1.860F-4(d) and Section 6231
of the Code. Initially, this person shall be the Servicer.
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TERMINATION AUCTION: As defined in Section 10.01(b) hereof.
THIRTY-DAY DELINQUENCY RATIO: As to any Distribution Date, the
percentage equivalent of the fraction, the numerator of which is the
aggregate of the outstanding principal balances (as of the end of the
preceding Collection Period) of all Contracts (including Contracts in respect
of which the related Manufactured Home has been repossessed but not yet
liquidated) as to which a scheduled monthly payment thereon (without giving
effect to any adjustments thereto by reason of a bankruptcy or similar
proceeding of the Obligor or any extension or modification granted to such
Obligor) is delinquent 30 days or more as of the end of such Collection
Period and the denominator of which is the Pool Scheduled Principal Balance
for such Distribution Date.
TOTAL REGULAR PRINCIPAL AMOUNT: As to any Distribution Date, an amount
equal to the sum of (a) the Scheduled Principal Reduction Amount for such
Distribution Date, (b) all Partial Prepayments received during the
immediately preceding Collection Period, (c) the Scheduled Principal Balance
of each Contract for which a Principal Prepayment in Full was received during
the immediately preceding Collection Period, (d) the Scheduled Principal
Balance of each Contract that became a Liquidated Contract during the
immediately preceding Collection Period, and (e) the Scheduled Principal
Balance of each Contract that was repurchased during the immediately
preceding Collection Period pursuant to Section 3.05.
TRANSFER: Any direct or indirect transfer or sale of any Ownership
Interest in a Class R Certificate.
TRANSFEREE: Any Person who is acquiring by Transfer any Ownership
Interest in a Class R Certificate.
TRUSTEE: The First National Bank of Chicago, or its successors or
assigns or any successor under this Agreement.
TRUST FUND: The corpus of the trust created by this Agreement, to the
extent described herein, consisting of the Contracts (including the security
interest created thereby), including all rights to receive payments on the
Contracts due on or after the Cut-Off Date, such assets as shall from time to
time be identified as deposited in the Certificate Account, the amounts, if
any, on deposit in the Reserve Account, each Manufactured Home and Mortgaged
Property which secured a Contract (which has not been repurchased pursuant to
Section 3.05) and which has been acquired in realizing upon such Contract,
the Repurchase Obligation, and the proceeds of the Hazard Insurance Policies.
UCC: The Uniform Commercial Code, as in effect in the relevant
jurisdiction.
UNITED STATES PERSON: A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under
the laws of, the United States, any state thereof or the District of Columbia
(other than a partnership not treated as a United States person under any
applicable Treasury Regulations), or an estate or trust whose income is
subject to United States federal income tax regardless of the source of
income.
VOTING RIGHTS: The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. As of any date of
determination, 99% of the Voting Rights shall be allocated
25
among Holders of the Regular Certificates in proportion to the Certificate
Balances of their respective Certificates on such date and 1% of the Voting
Rights shall be allocated among Holders of the Class R Certificates, in each
case allocated among the Certificates of each such Class in accordance with
their respective Percentage Interests.
Section 1.02 CONSTRUCTION.
Unless the context of this Agreement otherwise clearly requires,
references to the plural include the singular, the singular the plural and
the part the whole and "or" has the inclusive meaning sometimes represented
by the phrase "and/or." The words "include" or "including" shall be deemed
followed by the phrase "without limitation." The words "hereof," "herein,"
"hereunder" and similar terms in this Agreement refer to the Agreement as a
whole and not to any particular provision of this Agreement. The Section and
other headings contained in this Agreement are for reference purposes only
and shall not control or affect the construction of this Agreement or the
interpretation thereof in any respect. Section, subsection, Schedule,
Appendix and Exhibit references are to this Agreement unless otherwise
specified. The date as of which this Agreement is dated has been assigned
solely for purposes of identification, and does not signify the date as of
which assets are transferred, securities are issued, or any other actions are
taken hereunder, and the parties specifically acknowledge and agree that the
conveyance of the Contracts pursuant to Section 2.01 and the delivery of the
Certificates pursuant to Section 2.07 have occurred on and are effective as
of the Closing Date.
ARTICLE II
CONVEYANCE OF CONTRACTS, REPRESENTATIONS AND WARRANTIES
Section 2.01 CONVEYANCE OF CONTRACTS.
(a) BAFSB, as a Contract Seller, concurrently with the execution and
delivery hereof, does hereby transfer, sell, assign, set over and otherwise
convey to the Trustee without recourse (i) all of the right, title and
interest of such Contract Seller in and to the Contracts listed in Exhibit
A-1 of the Contract Schedule, as amended from time to time, (including the
security interests created thereby), including all principal of and interest
due on or with respect to such Contracts on or after the Cut-Off Date (other
than payments of principal and interest due on such Contracts before the
Cut-Off Date), (ii) all of the rights under all Hazard Insurance Policies
relating to the Manufactured Homes securing such Contracts for the benefit of
the creditors under such Contracts, (iii) all documents contained in the
Contract Files and in the Land Home Contract Files with respect to the
related Contracts, and (iv) all proceeds of any of the foregoing. Bank of
America, as a Contract Seller, concurrently with the execution and delivery
hereof, does hereby transfer, sell, assign, set over and otherwise convey to
the Trustee without recourse (i) all of the right, title and interest of such
Contract Seller in and to the Contracts listed in Exhibit A-2 of the Contract
Schedule, as amended from time to time, (including the security interests
created thereby), including all principal of and interest due on or with
respect to such Contracts on or after the Cut-Off Date (other than payments
of principal and interest due on such Contracts before the Cut-Off Date),
(ii) all of the rights under all Hazard Insurance Policies relating to the
Manufactured Homes securing such Contracts for the benefit of the creditors
under such
26
Contracts, (iii) all documents contained in the Contract Files and in the
Land Home Contract Files with respect to the related Contracts, and (iv) all
proceeds of any of the foregoing.
The ownership of each Contract and the contents of the related Contract
File or Land Home Contract File, as applicable, and Servicing File are vested
in the Trustee. The Servicer hereby disclaims any and all right, title and
other ownership interest in and to the Contracts (including the security
interests created thereby). The contents of each Contract File and, except
as provided in Section 4.16(e), the contents of each Land Home Contract File,
as applicable, and Servicing File are and shall be held by the Servicer for
the benefit of the Trustee as the owner thereof (it being understood that the
Servicer's possession of the contents of each Contract File or Land Home
Contract File, as applicable, and Servicing File so retained is for the sole
purpose of servicing the related Contract, and such retention and possession
by the Servicer is in a custodial capacity only). Neither of the Contract
Sellers nor the Servicer shall take any action inconsistent with the
Trustee's ownership of the Contracts, and the Contract Sellers and the
Servicer shall promptly indicate to all inquiring parties that the Contracts
have been sold, transferred, assigned, set over and conveyed to the Trustee
and shall not claim any ownership interest in the Contracts.
(b) Although the parties intend that the conveyance of the Contract
Sellers' right, title and interest in and to the Contracts pursuant to this
Agreement shall constitute a purchase and sale and not a loan, if such
conveyances are deemed to be a loan, the parties intend that the rights and
obligations of the parties to such loan shall be established pursuant to the
terms of this Agreement. The parties also intend and agree that BAFSB shall
be deemed to have granted to the Trustee, and BAFSB does hereby grant to the
Trustee, a perfected first-priority security interest in (i) all of its
right, title and interest, whether now owned or hereafter acquired, in and to
the Contracts listed in Exhibit A-1 of the Contract Schedule, as amended from
time to time (including the security interests created thereby), including
all principal of and interest due on or with respect to such Contracts on or
after the Cut-Off Date (other than payments of principal and interest due on
such Contracts before the Cut-Off Date), (ii) all of the rights under all
Hazard Insurance Policies relating to the Manufactured Homes securing such
Contracts for the benefit of the creditors under such Contracts, (iii) all
documents contained in the Contract Files and in the Land Home Contract Files
with respect to the related Contracts, and (iv) all proceeds of any of the
foregoing. The parties also intend and agree that Bank of America shall be
deemed to have granted to the Trustee, and Bank of America does hereby grant
to the Trustee, a perfected first-priority security interest in (i) all of
its right, title and interest, whether now owned or hereafter acquired, in
and to the Contracts listed in Exhibit A-2 of the Contract Schedule, as
amended from time to time (including the security interests created thereby),
including all principal of and interest due on or with respect to such
Contracts on or after the Cut-Off Date (other than payments of principal and
interest due on such Contracts before the Cut-Off Date), (ii) all of the
rights under all Hazard Insurance Policies relating to the Manufactured Homes
securing such Contracts for the benefit of the creditors under such
Contracts, (iii) all documents contained in the Contract Files and in the
Land Home Contract Files with respect to the related Contracts, and (iv) all
proceeds of any of the foregoing. The parties intend and agree that this
Agreement shall constitute a security agreement under applicable law. If the
trust created by this Agreement terminates prior to the satisfaction of the
claims of any Person under any Certificates, the security interests created
hereby shall continue in full force and effect and the Trustee shall be
deemed to be the collateral agent for the benefit of such Person.
27
Section 2.02 FILING AND ASSIGNMENT, NAME CHANGE OR RELOCATION.
(a) On or prior to the Closing Date, the Servicer shall cause to be
filed in the office of the Secretary of State of California
(i) For any Contracts sold by BAFSB, a UCC-1 financing statement
signed by BAFSB describing the related Contracts as collateral and naming
BAFSB as debtor and the Trustee as secured party.
(ii) For any Contracts sold by Bank of America, a UCC-1 financing
statement signed by Bank of America and describing such Contracts as
collateral and naming Bank of America as debtor and the Trustee as secured
party.
From time to time, the Servicer shall take and cause to be taken such
actions and execute such documents as are necessary to perfect and protect
the Certificateholders' interests in the Contracts and their proceeds and the
Manufactured Homes and the Mortgaged Properties against all other Persons,
including the filing of financing statements, amendments thereto and
continuation statements, the execution of transfer instruments and the making
of notations on or taking possession of all records or documents of title;
PROVIDED, HOWEVER, that BAFSB, so long as it is the Servicer, shall not be
required to cause notations to be made on any document of title relating to
any Manufactured Home or to execute any transfer instrument relating to any
Manufactured Home (other than a notation or a transfer instrument necessary
to show the applicable Contract Seller as the lienholder or legal title
holder) or, except as provided in Section 4.22, to file documents in real
property records with respect to a Manufactured Home or related Contract,
absent notice from the Trustee or the related Contract Seller or actual
knowledge that such Manufactured Home that does not secure a Land Home
Contract has become real property under applicable state law; and FURTHER
PROVIDED, that the Servicer shall have no obligation pursuant to this
sentence with respect to any failure to maintain a first-priority perfected
security interest which results from a breach of any representation or
warranty in Section 3.02(j) or (u) as to the Trustee's security interest in a
Manufactured Home, except to enforce the related Contract Seller's
obligations in respect thereof in Section 3.05. The Trustee and the Contract
Sellers agree to take whatever action is necessary to enable the Servicer to
fulfill its obligations as set forth in this Section 2.02(a).
(b) The Servicer agrees to pay all reasonable costs and disbursements
in connection with its duties specified in this Section 2.02.
Section 2.03 ACCEPTANCE BY TRUSTEE.
The Trustee hereby acknowledges conveyance of the Contracts to the
Trustee and declares that the Trustee, directly or through a custodian (which
shall be the Servicer pursuant to Section 4.16, except as provided under
Section 4.16(e)), holds and will hold such Contract Files in trust for the
use and benefit of all present and future Certificateholders. The Trustee
hereby certifies (without any independent investigation) that it has no
notice or knowledge of (i) any adverse claim, lien or encumbrance with
respect to any Contract, (ii) any Contract being overdue or dishonored, (iii)
any evidence on the face of any Contract of any security interest therein
adverse to the Trustee's interest, or (iv) any defense against or claim
against any Contract by the
28
Obligor or by any other party. Nothing in this Agreement shall be construed
to constitute acceptance by the Trustee or the Trust Fund of any liability or
obligation of any Contract Seller, whether on any Contract, to any Obligor,
or otherwise.
Section 2.04 CERTIFICATE RATINGS.
On the Closing Date, the Trustee shall authenticate and deliver the
Certificates upon instructions from the Contract Sellers pursuant to Section
2.07 and the following documents:
(a) A letter from each Rating Agency confirming that the Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class M,
Class B-1 and Class B-2 Certificates have been assigned the rating of "Aaa",
"Aaa", "Aaa", "Aaa", "Aaa", "Aaa", "Aaa", "Aa3," "Baa2", and "Ba2",
respectively (in the case of ▇▇▇▇▇'▇) and "AAA", "AAA", "AAA", "AAA", "AAA",
"AAA", "AAA", "AA-", "BBB" and "BB", respectively (in the case of Fitch), and
(b) An Officer's Certificate from the Servicer to the effect that the
Servicer has deposited in the Certificate Account $6,989,030.15, which is an
estimate of all amounts received on the Contracts from and including the
Cut-Off Date up to and including June 22, 1998.
Notwithstanding anything in this Agreement to the contrary, the Servicer
shall deposit into the Certificate Account all amounts in respect of the
Contracts received on or after June 1, 1998 or otherwise required to be
deposited in the Certificate Account by other provisions of this Agreement
pursuant to Section 4.05.
Section 2.05 REPRESENTATIONS AND WARRANTIES REGARDING THE SERVICER.
The Servicer makes the following representations and warranties to the
Trustee and the Certificateholders:
(a) ORGANIZATION AND GOOD STANDING. The Servicer is a federal savings
bank, duly organized, validly existing and in good standing under the laws of
the United States, and the Servicer has the corporate power to own its assets
and to transact the respective business in which it is currently engaged. The
Servicer is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction in which its type of organization and 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 its business, properties, assets, or
condition (financial or other).
(b) AUTHORIZATION; BINDING OBLIGATIONS. The Servicer has the power and
authority to make, execute, deliver and perform this Agreement and all of the
transactions contemplated under the Agreement, and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Agreement. When executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of the Servicer enforceable in accordance
with its terms, except as enforcement of such terms may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by the availability of equitable remedies.
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(c) NO CONSENT REQUIRED. The Servicer is not required to obtain the
consent of any other party or any consent, license, approval or authorization
from, or registration or declaration with, any governmental authority, bureau
or agency in connection with the execution, delivery, performance, validity
or enforceability of this Agreement, except such as have been obtained or
where the failure to obtain any such consent, license, approval or
authorization, or to make any registration or declaration does not materially
adversely affect the interests of the Trust Fund or the interests of the
Certificateholders therein.
(d) NO VIOLATIONS. The execution, delivery and performance of this
Agreement by the Servicer will not violate any provision of any existing law
or regulation or any order or decree of any court applicable to the Servicer
or the charter or bylaws of the Servicer, or constitute a material breach of
any mortgage, indenture, contract or other agreement to which the Servicer is
a party or by which the Servicer may be bound except where such violation or
breach does not materially adversely affect the interests of the Trust Fund
or the interests of the Certificateholders therein.
(e) LITIGATION. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending, or, to
the knowledge of the Servicer, threatened, against the Servicer or any of
its properties or with respect to this Agreement or the Certificates which,
if adversely determined, would in the opinion of the Servicer have a material
adverse effect on the transactions contemplated by this Agreement.
Within 60 days of the earlier of discovery by the Servicer or receipt of
notice by the Servicer of the breach of any representation, warranty or covenant
of the Servicer set forth in this Section 2.05 which materially and adversely
affects the interests of the Certificateholders in any Contract, the Servicer
shall cure such breach in all material respects.
Section 2.06 COVENANTS OF THE CONTRACT SELLERS, TRUSTEE AND SERVICER.
Upon discovery by any of the Contract Sellers, the Servicer or the
Trustee of a breach of any of the representations, warranties and covenants
set forth in Article III hereof which materially and adversely affects the
value of the Contracts or the interests of the Certificateholders in the
Contracts (or which materially and adversely affects the value of or the
interest of the Certificateholders in the related Contract in the case of a
representation, warranty or covenant set forth in Article III hereof and
relating to a particular Contract), the party discovering such breach shall
give prompt written notice to the other parties. The cure of such breach or
the repurchase or substitution for any affected Contract shall be done in
accordance with Section 3.05.
Section 2.07 AUTHENTICATION AND DELIVERY OF CERTIFICATES.
The Trustee acknowledges the transfer and assignment to it of the Trust
Fund and, concurrently with such transfer and assignment, has executed,
authenticated and delivered to or upon the order of the Contract Sellers, the
Certificates in authorized denominations evidencing the entire ownership of
the Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the
rights referred to above for the benefit of all present and future Holders of
the Certificates.
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Section 2.08 COVENANTS OF THE SERVICER.
The Servicer hereby covenants to the Contract Sellers and the Trustee
that no written information, certificate of an officer, statement furnished
in writing or written report delivered to the Contract Sellers, any Affiliate
of the Contract Sellers or the Trustee and prepared by the Servicer pursuant
to this Agreement will contain any untrue statement of a material fact or
omit to state a material fact necessary to make the information, certificate,
statement or report not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES BY THE CONTRACT SELLERS
Section 3.01 REPRESENTATIONS AND WARRANTIES OF THE CONTRACT SELLERS.
Each Contract Seller makes the following representations and warranties
to the Trustee (to the extent that such representations and warranties are
applicable to such Contract Seller):
(a) ORGANIZATION AND GOOD STANDING; LICENSING. It is a national
banking association (in the case of Bank of America) and is a federal savings
bank (in the case of BAFSB), duly organized, validly existing and in good
standing under the laws of the United States, and it has the corporate power
to own its assets and to transact the business in which it is currently
engaged. It is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction in which its type of organization and
the character of the business transacted by it or properties owned or leased
by it requires such qualification and in which the failure so to qualify
would have a material adverse effect on the business, properties, assets, or
condition (financial or other) of such Contract Seller. It was properly
licensed in each jurisdiction at the time of purchase or origination of each
Contract originated or purchased on an individual basis by it in such
jurisdiction to the extent required by the laws of such jurisdiction as
applied to the purchase or origination and servicing of such Contract, except
where the failure to be so licensed does not materially adversely affect the
interests of the Trust Fund or the Certificateholders in and to such Contract.
(b) AUTHORIZATION; BINDING OBLIGATIONS. It has the power and authority
to make, execute, deliver and perform this Agreement and all of the
transactions contemplated under this Agreement, and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Agreement. When executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of such Contract Seller enforceable in
accordance with its terms, except as enforcement of such terms may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by the availability of equitable remedies.
(c) NO CONSENT REQUIRED. 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, except such as have been obtained or where
the failure to obtain any such consent, license, approval or authorization,
or to make any
31
registration or declaration does not materially adversely affect the
interests of the Trust Fund or the interests of the Certificateholders
therein.
(d) NO VIOLATIONS. The execution, delivery and performance of this
Agreement by such Contract Seller will not violate any provision of any
existing law or regulation or any order or decree of any court applicable to
such Contract Seller or the charter or bylaws of such Contract Seller, or
constitute a material breach of any mortgage, indenture, contract or other
agreement to which such Contract Seller is a party or by which such Contract
Seller may be bound except where such violation or breach does not materially
adversely affect the interests of the Trust Fund or the interests of the
Certificateholders therein.
(e) LITIGATION. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending or, to
its knowledge, threatened, against it or any of its properties or with
respect to this Agreement or the Certificates which, if adversely determined,
would in the opinion of such Contract Seller have a material adverse effect
on the transactions contemplated by this Agreement.
(f) CHIEF EXECUTIVE OFFICE. As of the Closing Date, its chief
executive office is in California.
(g) NAME CHANGE OR RELOCATION. During the term of this Agreement, it
will not change its name, identity or structure or relocate its chief
executive office without first giving written notice to the Trustee. If any
change in such Contract Seller's name, identity or structure or the
relocation of its chief executive office would make any financing or
continuation statement or notice of lien filed under this Agreement seriously
misleading within the meaning of applicable provisions of the UCC or any
title statute, such Contract Seller, no later than five days after the
effective date of such change, shall file such amendments as may be required
to preserve and protect the Certificateholders' interests in the Contracts
and proceeds thereof and in the Manufactured Homes and the Mortgaged
Properties.
Section 3.02 REPRESENTATIONS AND WARRANTIES REGARDING EACH CONTRACT.
The Contracts listed in Exhibit A-1 to the Contract Schedule and in
Exhibit A-2 to the Contract Schedule have been sold by BAFSB and Bank of
America, respectively, in their respective capacities as Contract Seller, to
the Trust Fund on the date of execution and delivery hereof. As a condition
of the purchase by the Trust Fund, such Contract Seller represents and
warrants to the Trustee as to each Contract sold by it to the Trust Fund as
of the Closing Date (except as otherwise expressly stated):
(a) PAYMENTS. As of the Cut-Off Date, no Contract was more than 59
days delinquent.
(b) NO WAIVERS. The terms of the Contract have not been waived,
altered or modified in any respect, except by instruments or documents
identified in the Contract File or the Land Home Contract File, as applicable.
(c) BINDING OBLIGATION. The Contract is the legal, valid and binding
obligation of the Obligor thereunder and is enforceable in accordance with
its terms, except as such enforceability
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may be limited by laws affecting the enforcement of creditors' rights
generally and by general principles of equity.
(d) NO DEFENSES. The Contract is not subject to any right of
rescission, setoff, counterclaim or defense, including the defense of usury,
and the operation of any of the terms of the Contract or the exercise of any
right thereunder will not render the Contract unenforceable in whole or in
part or subject to any right of rescission, setoff, counterclaim or defense,
including the defense of usury, and no such right of rescission, setoff,
counterclaim or defense has been asserted with respect thereto.
(e) INSURANCE. The Manufactured Home securing the Contract is covered
by a Hazard Insurance Policy in the amount required by Section 4.09. All
premiums due as of the Closing Date on such insurance have been paid in full
to the applicable providers of such insurance.
(f) ORIGINATION. To the knowledge of such Contract Seller, the
Contract was either (i) originated by a manufactured housing dealer acting in
the regular course of its business, and purchased on an individual basis by
BAFSB, acting through its division, BankAmerica Housing Services or (ii)
originated by BAFSB, acting through its division, BankAmerica Housing
Services in the ordinary course of its business.
(g) LAWFUL ASSIGNMENT. The Contract was not originated in and is not
subject to the laws of any jurisdiction whose laws would make the transfer of
such Contract from such Contract Seller to the Trust Fund under this
Agreement unlawful.
(h) COMPLIANCE WITH LAW. All requirements of any federal, state or
local law, including usury, truth-in-lending and equal credit opportunity
laws and lender licensing laws, applicable to the Contract have been complied
with.
(i) CONTRACT IN FORCE. The Contract has not been satisfied or
subordinated in whole or in part or rescinded, the Manufactured Home securing
the Contract has not been released from the lien of the Contract in whole or
in part and, in the case of a Land Home Contract, the related Mortgaged
Property has not been released from the related Mortgage.
(j) VALID SECURITY INTEREST. The Contract, other than any Land Home
Contract, creates a valid, subsisting and enforceable first-priority security
interest in favor of BankAmerica Housing Services as secured lender, or agent
thereof, in the Manufactured Home covered thereby; such security interest has
been assigned by such Contract Seller as secured lender to the Trustee in
accordance with the terms herein and; the Trustee has a valid and perfected
first-priority security interest in such Manufactured Home. Each Mortgage is
a valid first lien in favor of BankAmerica Housing Services on real property
securing the amount owed by the Obligor under the related Land Home Contract
subject only to (a) the lien of current real property taxes and assessments,
(b) covenants, conditions and restrictions, rights of way, easements and
other matters of public record as of the date of recording of such Mortgage,
such exceptions appearing of record being acceptable to mortgage lending
institutions generally in the area wherein the property subject to the
Mortgage is located or specifically reflected in the appraisal obtained in
connection with the origination of the related Land Home Contract obtained by
BankAmerica Housing Services and (c) other matters to which like properties
are commonly subject which do
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not materially interfere with the benefits of the security intended to be
provided by such Mortgage. The applicable Contract Seller has assigned all
of its right, title and interest in such Land Home Contract and related
Mortgage, including the security interest in the Manufactured Home covered
thereby, to the Trustee. The Trustee has and will have a valid and perfected
and enforceable first priority security interest in such Land Home Contract.
(k) CAPACITY OF PARTIES. All parties to the Contract had capacity to
execute the Contract.
(l) GOOD TITLE. It purchased the Contract for value and took
possession thereof, without knowledge that the Contract was subject to any
security interest. It has not sold, assigned or pledged the Contract to any
Person other than the Trust Fund, and prior to the transfer of the Contract
by such Contract Seller to the Trust Fund, it had good and marketable title
thereto free and clear of any encumbrance, equity, loan, pledge, charge,
claim or security interest and was the sole owner thereof with full right to
transfer the Contract to the Trust Fund.
(m) NO DEFAULTS. As of the Cut-Off Date, there was no default, breach,
violation or event permitting acceleration existing under the Contract and to
its knowledge, no event which, with notice and the expiration of any grace or
cure period, would constitute such a default, breach, violation or event
permitting acceleration under such Contract (except payment delinquencies
permitted by clause (a) above). Such Contract Seller has not waived any such
default, breach, violation or event permitting acceleration.
(n) NO LIENS. As of the Closing Date, there are, to its knowledge,
no liens or claims which have been filed for work, labor or materials affecting
the Manufactured Home or any related Mortgaged Property securing the Contract
which are or may be liens prior to, or equal or coordinate with, the lien of the
Contract.
(o) EQUAL INSTALLMENTS. The Contract has a fixed Contract Rate and
provides for level monthly payments of principal and interest which fully
amortize the loan over its term. The scheduled monthly payment allocable to
interest on the Contract is calculated on the basis that each scheduled monthly
payment is applied on its Due Date, regardless of when it is actually made.
(p) ENFORCEABILITY. The Contract contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the collateral of the benefits of the
security.
(q) CONTRACT SCHEDULE. The information set forth in Exhibit A-1 to
the Contract Schedule (in the case of BAFSB) and Exhibit A-2 to the Contract
Schedule (in the case of Bank of America) is true and correct.
(r) ONE ORIGINAL. There is only one original executed Contract.
Such original Contract is in the custody of the Servicer on the Closing Date.
(s) LOAN-TO-VALUE RATIO. At the time of its origination, such
Contract had a Loan-to-Value Ratio (rounded to the nearest 1%) not greater than
95%.
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(t) NOT REAL ESTATE. With respect to each Contract other than a Land
Home Contract, the related Manufactured Home is personal property and is not
considered or classified as part of the real estate on which it is located under
the laws of the jurisdiction in which it is located and was personal property
and was not considered or classified as part of the real estate on which it was
located under the laws of the jurisdiction in which it was located at the time
the related Contract was executed by the parties thereto, and with respect to
each Contract including Land Home Contracts the related Manufactured Home is, to
such Contract Seller's knowledge, free of damage (including earthquake or
hurricane damage) and in good repair.
(u) NOTATION OF SECURITY INTEREST. With respect to each Contract other
than a Land Home Contract, if the related Manufactured Home is located in a
state in which notation of a security interest on the title document is
required or permitted to perfect such security interest, the title document
shows, or, if a new or replacement title document with respect to such
Manufactured Home is being applied for, such title document will be issued
within 180 days and will show, BankAmerica Housing Services as the holder of
a first-priority security interest in such Manufactured Home. If the related
Manufactured Home is located in a state in which the filing of a financing
statement or the making of a fixture filing under the UCC is required to
perfect a security interest in manufactured housing, such filings have been
duly made and show BankAmerica Housing Services as the secured party. If the
related Manufactured Home secures a Land Home Contract, such Manufactured
Home is subject to a Mortgage properly filed in the appropriate public
recording office or such Mortgage will be properly filed in the appropriate
public recording office within 180 days, naming BankAmerica Housing Services
as mortgagee. In either case, the Trustee has the same rights as the secured
party of record would have (if such secured party were still the owner of the
Contract) against all Persons (including the related Contract Seller and any
trustee in bankruptcy of BankAmerica Housing Services) claiming an interest
in such Manufactured Home. Assuming consummation of the transactions
contemplated herein the Trustee has the same rights as the secured party of
record would have (if such secured party were still the owner of the
Contract) against all Persons claiming an interest in such Manufactured Home
and, if applicable, such Mortgaged Property.
(v) SECONDARY MORTGAGE MARKET ENHANCEMENT ACT. The related
Manufactured Home is a "manufactured home" within the meaning of ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Code, Section 5402(6); BAFSB was a federally-chartered savings bank, as
of the time of each Contract's origination or purchase by BAFSB as required
under Section 3(a)(41)(A)(ii) of the Securities Exchange Act of 1934, as
amended.
(w) QUALIFIED MORTGAGE FOR REMIC. Each Contract 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 each Contract was at
least equal to 80% of the adjusted issue price of the Contract at either (i) the
time the Contract was originated (determined pursuant to the REMIC Provisions)
or (ii) the time the Contract is transferred to the Trust Fund. Each Contract
is a "qualified mortgage" under Section 860G(a)(3) of the Code.
(x) STAMPING OF CONTRACTS. Within 60 days of the Closing Date, each
original Contract will have been stamped with the following legend: "This
Contract has been assigned to The First National Bank of Chicago, as Trustee
under the Pooling and Servicing Agreement dated
35
as of June 1, 1998 (among such Trustee, Bank of America National Trust and
Savings Association and Bank of America, FSB) or to any successor Trustee
thereunder."
(y) ACTUARIAL CONTRACTS. Each Contract is an actuarial manufactured
housing installment loan agreement or a manufactured housing installment
sales contract.
(z) LAND HOME CONTRACTS. No Contract other than a Land Home Contract
is secured, or intended to be secured, in whole or in part by the lien of a
mortgage or deed of trust creating a first lien or an estate in fee simple in
the real property.
(aa) FINANCING OF REAL PROPERTY. No Contract other than a Land Home
Contract has financed any amount in respect of real property.
(bb) MINIMUM AND MAXIMUM CONTRACT RATE. The Contract with the lowest
Contract Rate has a Contract Rate of 7.00% and the Contract with the highest
Contract Rate has a Contract Rate of 15.00%.
Section 3.03 REPRESENTATIONS AND WARRANTIES REGARDING THE CONTRACTS IN THE
AGGREGATE.
Each Contract Seller, jointly and severally, represents and warrants that:
(a) AMOUNTS. The aggregate principal amounts payable by Obligors
under the Contracts as of the Cut-Off Date (including scheduled principal
payments due on or after the Cut-Off Date but paid prior to the Cut-Off Date)
equal or exceed the Cut-Off Date Pool Principal Balance. The percentage (by
outstanding principal balance as of the Cut-Off Date) of the Contracts having
a Net Contract Rate that is less than the Cap Rate on the Class A-7
Certificates is approximately 6.47%, the percentage (by outstanding principal
balance as of the Cut-Off Date) of the Contracts having a Net Contract Rate
that is less than the Cap Rate on the Class M Certificates is approximately
11.55%, the percentage (by outstanding principal balance as of the Cut-Off
Date) of the Contracts having a Net Contract Rate that is less than the Cap
Rate on the Class B-1 Certificates is approximately 17.87%, and the
percentage (by outstanding principal balance as of the Cut-Off Date) of the
Contracts having a Net Contract Rate that is less than the Cap Rate on the
Class B-2 Certificates is approximately 16.67%.
(b) CHARACTERISTICS. The Contracts have the following characteristics
as of the Cut-Off Date: (i) Contracts representing approximately 85% of the
Contracts by remaining principal balance are attributable to loans for
purchases of new Manufactured Homes, and approximately 15% thereof is
attributable to loans for purchases of used Manufactured Homes; (ii) not more
than approximately 9.10% of the Contracts by remaining principal balance as
of the Cut-Off Date are secured by Manufactured Homes located in any one
state, not more than 1.00% of the Contracts by remaining principal balance
are secured by Manufactured Homes located in an area with the same zip code,
not more than 1.00% of the Contracts by remaining principal balance are
secured by Manufactured Homes located in the same manufactured housing park,
(iii) no Contract has a remaining maturity of more than 360 months; (iv) no
Contract was originated before January, 1993; and (v) the final scheduled
payment date on the Contract with the latest maturity is in May, 2028.
36
(c) COMPUTER TAPE. The Computer Tape made available by the Servicer
as of the close of business on May 31, 1998 was accurate as of its date and
includes a description of the same Contracts that are described in the
Contract Schedule.
(d) MARKING RECORDS. Within 7 days following the Closing Date, the
related Contract Seller will have caused the portions of the electronic
master record of its manufactured housing installment sales contracts and
installment loan agreements relating to the Contracts sold by it as of the
Closing Date to be clearly and unambiguously marked to indicate that such
Contracts constitute part of the Trust Fund and are owned by the Trust Fund
in accordance with the terms of the trust created hereunder.
(e) NO ADVERSE SELECTION. Except to ensure compliance with the
representations and warranties made in Sections 3.02 and 3.03, no selection
procedures have been intentionally employed to achieve an adverse effect in
selecting the Contracts.
Section 3.04 REPRESENTATIONS AND WARRANTIES REGARDING THE CONTRACTS.
Each Contract Seller, for itself, represents and warrants that:
(a) POSSESSION. Immediately prior to the Closing Date, the Servicer
will have possession of each original Contract and the related Contract File
or Land Home Contract File, as applicable (except for any certificate of
title that has not yet been returned from the appropriate public recording
office). There are and there will be no custodial agreements in effect
materially and adversely affecting the right of the related Contract Seller
to make, or to cause to be made, any delivery required hereunder.
(b) BULK TRANSFER LAWS. The transfer, assignment and conveyance of
the Contracts, the Contract Files and the Land Home Contract Files by related
Contract Seller to the Trust Fund as contemplated by this Agreement are not
subject to the bulk transfer or any similar statutory provisions in effect in
any applicable jurisdiction.
Section 3.05 REPURCHASES OF CONTRACTS OR SUBSTITUTION OF CONTRACTS FOR BREACH OF
REPRESENTATIONS AND WARRANTIES.
(a) Each Contract Seller shall either (i) repurchase a Contract sold
by it to the Trust Fund at such Contract's Repurchase Price, or (ii) if such
Contract Seller is able to satisfy the conditions of Section 3.05(b), remove
such Contract from the Trust Fund and substitute therefor an Eligible
Substitute Contract in accordance with and subject to the limitations of
Section 3.05(b), in each case within 90 days after such Contract Seller
becomes aware, or receives written notice from the Servicer or the Trustee,
of a breach of a representation or warranty of such Contract Seller set forth
in Section 3.02 or 3.03 of this Agreement that materially adversely affects
the Trust Fund's interest in such Contract, unless such breach has been
cured; PROVIDED, HOWEVER, that with respect to any Contract incorrectly
described on the Contract Schedule with respect to remaining principal
balance, which such Contract Seller would otherwise be required to repurchase
pursuant to this Section 3.05, such Contract Seller may, in lieu of
repurchasing such Contract, deposit in the Certificate Account not later than
one Business Day after such Determination Date cash in an amount sufficient
to cure such deficiency or discrepancy; and FURTHER PROVIDED, that with
respect to a breach of a representation or warranty relating to the
37
Contracts in the aggregate and not to any particular Contract, a Contract
Seller may select Contracts to repurchase or substitute for such that, had
such Contracts not been included as part of the Contract Pool and after
giving effect to such substitution, if any, there would have been no breach
of such representation or warranty; and FURTHER PROVIDED, that in connection
with any Contract that such Contract Seller is required to repurchase, such
Contract Seller shall at its own expense deliver to the Trustee an opinion of
counsel to the effect that the repurchase of such Contract will not cause the
Trust Fund to fail to qualify as a REMIC at any time any Certificate is
outstanding under then applicable REMIC Provisions, be deemed a contribution
to the Trust Fund after the Startup Day or cause any "prohibited
transaction," in each case, that will result in the imposition of a tax under
the applicable REMIC Provisions. It is understood and agreed that the
obligation of either Contract Seller to repurchase or substitute for any
Contract sold by it as to which a breach of a representation or warranty set
forth in Section 3.02 or 3.03 of this Agreement has occurred and is
continuing shall constitute the sole remedy respecting such breach available
to the Certificateholders, the Trust Fund or the Trustee; provided, HOWEVER,
that such Contract Seller shall defend and indemnify the Trustee, the
Certificate Administrator, the Trust Fund and the Certificateholders against
all costs, expenses, losses, damages, claims and liabilities, including
reasonable fees and expenses of counsel, which may be asserted against or
suffered by any of them as a result of third-party claims arising out of any
breach of a representation or warranty set forth in Section 3.02(c), (d),
(g), (h) or (w) of this Agreement. Notwithstanding any other provision of
this Agreement, the obligation of either Contract Seller under this Section
3.05 shall not terminate upon an Event of Default.
Notwithstanding any other provision of this Agreement to the
contrary, any amount received on or recovered with respect to repurchased
Contracts or Replaced Contracts during or after the month of repurchase shall
be the property of the related Contract Seller and need not be deposited in
the Certificate Account.
Notwithstanding the foregoing, no Contract Seller shall deposit
cash into the Certificate Account pursuant to this Section 3.05 after the
three-month period beginning on the Closing Date unless it shall first have
obtained an Opinion of Counsel to the effect that such deposit will not give
rise to any tax under Section 86OF(a) (1) of the Code or Section 86OG(d) of
the Code. Any such deposit shall not be invested.
The Trustee shall have no obligation to pay any taxes pursuant to
this Section 3.05, other than from moneys provided to it by either Contract
Seller or from moneys held therefor pursuant to Section 4.17. The Trustee
shall be deemed conclusively to have complied with this Section 3.05 if it
follows the directions of the Servicer required to be provided in the
preceding paragraph. Upon the repurchase of any Contract by a Contract
Seller, the Trustee shall delete such Contract from the Contract Schedule.
For reasons of administrative convenience in servicing of the
Contracts, notwithstanding the above provisions of this Section 3.05(a), no
Contract Seller shall be required to repurchase or substitute for any
Contract relating to a Manufactured Home located in any jurisdiction on
account of a breach of the representation or warranty contained in Section
3.02(j) or (u) of this Agreement solely on the basis of failure by the
related Contract Seller to cause notations to be made on any document of
title relating to any such Manufactured Home or to execute any transfer
instrument (including any UCC-3 assignments) relating to any such
38
Manufactured Home (other than a notation or a transfer instrument necessary
to show such Contract Seller as lienholder or legal title holder) unless (i)
a court of competent jurisdiction has adjudged that, because of such failure,
the Trustee does not have a perfected first-priority security interest in
such related Manufactured Home, or (ii) (A) the Servicer has received written
advice of counsel to the effect that a court of competent jurisdiction has
held that, solely because of a substantially similar failure on the part of a
pledgor or assignor of manufactured housing contracts (who has perfected the
assignment or pledge of such contracts), a perfected first-priority security
interest was not created in favor of the pledgee or assignee (as the case may
be) in a related manufactured home which is located in such jurisdiction and
which is subject to the same laws regarding the perfection of security
interests therein as apply to Manufactured Homes located in such
jurisdiction, and (B) the Servicer shall not have completed all appropriate
remedial action with respect to such Manufactured Home within 90 days after
receipt of such written advice. Any such advice shall be from counsel
selected by the Servicer on a nondiscriminatory basis from among the counsel
used by the Servicer in its general business in the jurisdiction in question.
The Servicer shall have no obligation on an ongoing basis to seek any advice
with respect to the matters described in clause (ii) above. However, the
Servicer shall seek advice with respect to such matters whenever information
comes to the attention of its general counsel which causes such general
counsel to determine that a holding of the type described in clause (ii)(A)
might exist. If any counsel selected by the Servicer informs the Servicer
that no holding of the type described in clause (ii)(A) exists, such advice
shall be conclusive and binding on the parties with respect to the applicable
date and jurisdiction.
(b) On or prior to the date that is the second anniversary of the
Closing Date, either Contract Seller, at its election, may substitute a
Contract for any Contract that it is otherwise obligated to repurchase
pursuant to Section 3.05(a) (such Contract being referred to as the "Replaced
Contract") upon satisfaction of the following conditions:
(i) the Contract to be substituted for the Replaced Contract is
an Eligible Substitute Contract and such Contract Seller delivers an
Officer's Certificate, substantially in the form of EXHIBIT E, to the
Trustee certifying that such Contract is an Eligible Substitute
Contract, describing in reasonable detail how such Contract satisfies
the definition of the term "Eligible Substitute Contract" (as to
satisfaction of representations and warranties, such description shall
be that such Contract satisfies such representations and warranties) and
certifying that the Contract File or the Land Home Contract File, as
applicable, for such Contract is in the possession of the Servicer;
(ii) the related Contract Seller shall have delivered to the
Trustee evidence of filing with the appropriate office in California of
a UCC-1 financing statement executed by such Contract Seller as debtor
and naming the Trustee as secured party and listing such Contract as
collateral;
(iii) the related Contract Seller shall have delivered to the
Trustee an Opinion of Counsel (a) to the effect that the substitution of
such Contract for such Replaced Contract will not cause the Trust Fund
to fail to qualify as a REMIC at any time any Certificate is outstanding
under then applicable REMIC Provisions, be deemed a contribution to the
Trust Fund after the Startup Day or cause any "prohibited transaction,"
in each case, that will result in the imposition of a tax under the
applicable REMIC Provisions, and (b) to the
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effect that, except as to Contracts that are Land Home Contracts, no
filing or other action other than the filing of financing statements on
Form UCC-1 with the Secretary of State of the State of California,
naming such Contract Seller as debtor and the Trustee as secured party
as required by Section 3.05(a) of this Agreement and the filing of
continuation statements as required by Section 2.02(a) is necessary to
perfect as against third parties the conveyance of the substitute
Contract by the related Contract Seller to the Trustee; and
(iv) if the Scheduled Principal Balance of such Replaced Contract
is greater than the Scheduled Principal Balance of such Contract, the
related Contract Seller shall have deposited in the Certificate Account
the amount of such excess (which amount shall be deemed a Principal
Prepayment on such Contract) and shall have included in the Officer's
Certificate required by clause (i) above a certification that such
deposit has been made.
Upon satisfaction of such conditions, the Trustee shall add such
Contract to, and delete such Replaced Contract from, the Contract Schedule
(or cause such addition and deletion to be accomplished). Such substitution
shall be effected prior to the first Determination Date that occurs more than
90 days after the related Contract Seller becomes aware or receives written
notice from the Servicer or the Trustee, of the breach referred to in Section
3.05(a).
(c) Promptly after the repurchase referred to in Section 3.05(a) or
the substitution referred to in Section 3.05(b), the Trustee shall execute
such documents as are presented to it by the related Contract Seller and are
reasonably necessary to reconvey the repurchased Contract or Replaced
Contract, as the case may be, to the related Contract Seller.
(d) Notwithstanding anything in this Section 3.05 to the contrary, in
the event any Opinion of Counsel referred to in this Section 3.05 indicates
that a repurchase or substitution, as the case may be, of a Contract will
result in the imposition of a tax under the applicable REMIC Provisions with
respect to "prohibited transactions," or deemed a contribution to the REMIC
after the "start-up day," the related Contract Seller shall not be required
to repurchase or substitute the Contract to which such Opinion of Counsel
relates unless and until the Servicer has determined there is an actual or
imminent default with respect thereto or that the defect or breach giving
rise to the repurchase or substitution obligation adversely affects the
enforceability of such Contract.
Section 3.06 GENERAL.
(a) It is understood and agreed that the representations and
warranties in this Article III hereof shall remain operative and in full
force and effect, shall survive the transfer and conveyance of the Contracts
by the Contract Sellers to the Trustee and shall inure to the benefit of the
Trustee.
(b) Any cause of action against either Contract Seller relating to or
arising out of the breach of any of its respective representations and
warranties made in this Article III shall accrue as to any Contract upon (i)
discovery of such breach by either Contract Seller or notice thereof by the
Trustee or Servicer to such Contract Seller, (ii) failure by the related
Contract Seller to cure
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such breach, and (iii) demand upon the related Contract Seller by the Trustee
for all amounts payable in respect of such Contract under this Agreement.
ARTICLE IV
ADMINISTRATION AND SERVICING OF CONTRACTS
Section 4.01 RESPONSIBILITY FOR CONTRACT ADMINISTRATION AND SERVICING.
BankAmerica Housing Services hereby agrees to act as Servicer under this
Agreement. The Certificateholders by their acceptance of the Certificates
consent to BankAmerica Housing Services acting as Servicer. The Servicer shall
service and administer the Contracts and, subject to the terms of this
Agreement, shall have full power and authority to do any and all things which it
may deem necessary or desirable in connection with such servicing and
administration. Subject to Section 4.02, without limiting the generality of the
foregoing, the Servicer hereby is authorized and empowered, when the Servicer
believes it appropriate in its best judgment, to execute and deliver, on behalf
of the Certificateholders and the Trust Fund or any of them, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to the Contracts,
with respect to the Manufactured Homes and with respect to the Mortgaged
Property. The Trustee shall furnish the Servicer with any powers of attorney
and other documents necessary or appropriate to enable the Servicer to service
and administer the Contracts. The relationship of the Servicer (and of any
successor to the Servicer as Servicer under this Agreement) to the Trustee under
this Agreement is intended by the parties to be that of an independent
contractor and not that of a joint venturer, partner or agent of the Trustee.
Section 4.02 STANDARD OF CARE.
In managing, administering, servicing and making collections on the
Contracts pursuant to this Agreement, the Servicer will, consistent with the
terms of this Agreement and applicable law, act with reasonable care, using that
degree of skill and care that it exercises with respect to similar manufactured
housing contracts owned and/or serviced by it, but in no event using a degree of
skill and care that is lower than that used generally in the servicing industry
for such manufactured housing contracts; PROVIDED, HOWEVER, that notwithstanding
the foregoing, the Servicer shall not release or waive the right to collect the
unpaid balance on any Contract except if default or foreclosure on such Contract
has occurred or in the reasonable judgment of the Servicer is imminent and such
waiver or release is in the best interest of the Trust, in the reasonable
judgement of the Servicer. Notwithstanding anything to the contrary contained
in this Agreement, no provision of this Agreement shall be construed so as to
require the Servicer to take any action or fail to take any action in respect of
a Contract which action or failure violates applicable law.
Section 4.03 RECORDS.
The Servicer, during the period it is Servicer hereunder, shall maintain
such books of account and other records as will enable the Trustee (if the
Trustee so elects in its discretion) to determine the status of each Contract.
Without limiting the generality of the preceding sentence,
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the Servicer shall keep such records in respect of Liquidation Expenses as
will enable the Trustee (if the Trustee so elects in its discretion) to
determine that the correct amount of Net Liquidation Proceeds in respect of a
Liquidated Contract has been deposited in the Certificate Account.
Section 4.04 INSPECTION.
(a) At all times during the term hereof, the Servicer shall afford
the Trustee and its authorized agents reasonable access during normal business
hours to the Servicer's records relating to the Contracts and will cause its
personnel to assist in any examination of such records by the Trustee or any of
its authorized agents. The examination referred to in this Section 4.04 will be
conducted in a manner which does not interfere unreasonably with the Servicer's
normal operations or customer or employee relations. Without otherwise limiting
the scope of the examination which the Trustee may make, the Trustee or its
authorized agents, using generally accepted audit procedures, may in their
discretion verify the status of each Contract and review the records relating
thereto for conformity to Monthly Reports prepared pursuant to Article V and
compliance with the standards represented to exist as to each Contract in this
Agreement.
(b) At all times during the term hereof, the Servicer shall keep
available a copy of the Contract Schedule at its principal executive office for
inspection by Certificate Owners.
Section 4.05 ESTABLISHMENT OF AND DEPOSITS IN CERTIFICATE ACCOUNTS.
On or before the Closing Date, the Trustee shall have established, and
thereafter shall maintain, a Certificate Account which is an Eligible Account,
in the form of a segregated trust account titled "BankAmerica Manufactured
Housing Contract Trust V, Senior/Subordinate Pass-Through Certificates, Series
1998-2, Certificate Account in trust for the Trustee as trustee for the benefit
of the Certificateholders." As of the Closing Date, the Certificate Account
shall be a segregated trust account established at The First National Bank of
Chicago and shall be invested in the Trustee's Corporate Trust Short-Term
Investment Fund (as long as such fund is an Eligible Investment) or other
similar Eligible Investment selected by the Trustee. Eligible Investments shall
mature or, in the case of a money market fund, be redeemed not later than the
Business Day immediately preceding the Distribution Date next following the date
of such investment (except that, if such Eligible Investment is an obligation of
the institution that maintains the Certificate Account, then such Eligible
Investments shall mature or, in the case of a money market fund, be redeemed not
later than such Distribution Date), and shall not be sold or disposed of prior
to its maturity. All such Eligible Investments shall be made in the name of the
Trustee, as trustee for the benefit of the Certificateholders. Without limiting
the generality of the foregoing, the Trustee shall select obligations for the
investment of the Certificate Account from among the investments specified in
clauses (a) and (b) of the definition of "Eligible Investments." The Trustee
shall select such Eligible Investments, which shall mature as provided above, in
such manner as to achieve the following objectives in the order stated:
(1) preservation of principal values; and (2) maximization of income.
All net income and gain realized from any such investments, to the extent
provided by this Agreement, shall be added to the Certificate Account.
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The Servicer shall deposit in the Certificate Account, as promptly as
practicable (but not later than the close of business of the second Business
Day) following receipt thereof:
(1) All amounts received from Obligors with respect to principal
of and interest on the Contracts (including Excess Contract Payments);
(2) All Net Liquidation Proceeds;
(3) All amounts required to be deposited by either Contract
Seller pursuant to Sections 3.05(a) and (b);
(4) All Monthly Advances pursuant to Section 5.01;
(5) Any proceeds of Hazard Insurance Policies pursuant to
Section 4.11 and any amounts in respect of indemnification pursuant to
Section 7.03;
(6) All amounts required to be withdrawn from an REO Account and
deposited in the Certificate Account in accordance with Section 4.17; and
(7) All Deficiency Amounts.
Section 4.06 PAYMENT OF TAXES.
If the Servicer becomes aware of the nonpayment by an Obligor of a real or
personal property tax or other tax or charge which may result in a lien upon a
Manufactured Home or Mortgaged Property prior to, or equal to or coordinate
with, the lien of the related Contract, the Servicer, consistent with Section
4.02, shall take action, including the payment of such taxes or charges to avoid
the attachment of any such lien. If the Servicer shall have paid any such real
or personal property tax or other tax or charge directly on behalf of an
Obligor, the Servicer shall seek reimbursement therefor only from the related
Obligor (except as provided in the last sentence of this Section 4.06) and may
separately add such amount to the Obligor's obligation as provided by the
Contract, but, for the purposes of this Agreement, may not add such amount to
the remaining principal balance of the Contract. If the Servicer shall have
repossessed a Manufactured Home or Mortgaged Property on behalf of the
Certificateholders and the Trustee, the Servicer shall pay the amount of any
such tax or charge arising during the time such Manufactured Home is in the
Servicer's possession or title to the Mortgaged Property is in the name of the
Servicer (or any Person acting on behalf of the Servicer), unless the Servicer
is contesting in good faith such tax or charge or the validity of the claimed
lien on such Manufactured Home or Mortgaged Property. If the Obligor does not
reimburse the Servicer for payment of such taxes or charges pursuant to this
Section 4.06 and the related Contract is liquidated after a default, the
Servicer shall be reimbursed for its payment of such taxes or charges out of the
related Liquidation Proceeds.
Section 4.07 ENFORCEMENT.
(a) The Servicer, consistent with Section 4.02, shall act with
respect to the Contracts in such manner as will maximize the receipt of
principal and interest on such Contracts.
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(b) The Servicer shall ▇▇▇ to enforce or collect upon Contracts and,
where permitted by applicable law, any Deficiency at its own expense, in its own
name, if possible, or as agent for the Contract Owner in its own name, if
possible, or as agent for the Trust Fund. If the Servicer elects to commence a
legal proceeding to enforce a Contract, the act of commencement shall be deemed
to be an automatic assignment of the Contract to the Servicer for purposes of
collection only. If, however, in any enforcement suit or legal proceeding it is
held that the Servicer may not enforce a Contract on the ground that it is not a
real party in interest or a holder entitled to enforce the Contract, the Trustee
on behalf of the Certificateholders shall, at the Servicer's expense, take such
steps as the Servicer deems necessary to enforce the Contract, including
bringing suit in its name or the names of the Certificateholders. If there has
been a recovery of attorneys' fees in favor of the Servicer or the Trust Fund in
an action involving the enforcement of a Contract, the Servicer shall be
reimbursed out of such recovery for its out-of-pocket attorney's fees and
expenses incurred in such enforcement action.
(c) The Servicer shall exercise any rights of recourse against third
persons that exist with respect to any Contract in accordance with Section 4.02.
In exercising recourse rights, the Servicer is authorized on the Trustee's
behalf to reassign the Contract or to resell the related Manufactured Home and,
if applicable, the Mortgaged Property, to the Person against whom recourse
exists at the price set forth in the document creating the recourse.
(d) The Servicer may grant to the Obligor on any Contract any rebate,
refund or adjustment out of the Certificate Account that is required because of
an overpayment in connection with the partial prepayment or prepayment in full
of the Contract or otherwise. The Servicer may rescind, cancel or make material
modifications of the terms of any Contract (including modifying the amounts and
due dates of scheduled monthly payments); PROVIDED that, unless required by
applicable law or to bring Contracts into conformity with the representations
and warranties contained in Article III, the Servicer will not permit any
rescission or cancellation of any Contract or any material modification of a
Contract other than in connection with a default or an imminent default on such
Contract unless the Servicer obtains an Opinion of Counsel to the effect that
such modification will not cause the Trust Fund to fail to qualify as a REMIC or
result in the imposition of taxes on the Trust Fund under the REMIC Provisions.
Notwithstanding the foregoing, the Servicer may, without an Opinion of Counsel,
make a one-time modification to the Contract Rate with respect to any Contract
by an amount equal to the lesser of (i) 5% of such Contract Rate and (ii) 0.50%.
Section 4.08 TRANSFER OF CERTIFICATE ACCOUNT.
The Trustee may transfer the Certificate Account to a different depository
institution from time to time, so long as the Certificate Account remains an
Eligible Account. The Trustee shall give notice of any transfer of the
Certificate Account to each Rating Agency prior to such transfer.
Section 4.09 MAINTENANCE OF HAZARD INSURANCE POLICIES.
(a) Except as otherwise provided in subsection (b) of this Section
4.09, the Servicer shall cause to be maintained with respect to each Contract
one or more Hazard Insurance Policies which provide, at a minimum, the same
coverage as a standard form fire and extended coverage
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insurance policy that is customary for manufactured housing, issued by a
company authorized to issue such policies in the state in which the
Manufactured Home is located, and in an amount which is not less than the
maximum insurable value of such Manufactured Home or the principal balance of
the related Contract, whichever is less; PROVIDED that such Hazard Insurance
Policies may provide for customary deductible amounts, and FURTHER PROVIDED
that the amount of coverage provided by each Hazard Insurance Policy shall be
sufficient to avoid the application of any co-insurance clause contained
therein. If a Manufactured Home is located within a federally designated
special flood hazard area, the Servicer shall, to the extent required by
applicable law or regulation, also cause flood insurance to be maintained,
which coverage shall be at least equal to the minimum amount specified in the
preceding sentence or such lesser amount as may be available under the
federal flood insurance program. Each Hazard Insurance Policy caused to be
maintained by the Servicer shall contain a standard loss payee clause in
favor of the Servicer and its successors and assigns. If any Obligor is in
default in the payment of premiums on its Hazard Insurance Policy or
Policies, the Servicer shall pay such premiums out of its own funds, and may
add separately such premium to the Obligor's obligation as provided by the
Contract, but may not add such premium to the remaining principal balance of
the Contract for purposes of this Agreement. If the Obligor does not
reimburse the Servicer for payment of such premiums and the related Contract
is liquidated after a default, the Servicer shall be reimbursed for its
payment of such premiums out of the related Liquidation Proceeds.
(b) The Servicer may, in lieu of causing individual Hazard Insurance
Policies to be maintained with respect to each Manufactured Home pursuant to
subsection (a) of this Section 4.09, and shall, to the extent that the related
Contract does not require the Obligor to maintain a Hazard Insurance Policy with
respect to the related Manufactured Home, maintain one or more blanket insurance
policies covering losses as provided in subsection (a) of this Section 4.09
resulting from the absence or insufficiency of individual Hazard Insurance
Policies. Any such blanket policy shall be substantially in the form that is
the industry standard for blanket insurance policies issued to cover
Manufactured Homes and in the amount sufficient to cover all losses on the
Contracts. The Servicer shall pay, out of its own funds, the premium for such
policy on the basis described therein and shall deposit in the Certificate
Account, on the Business Day next preceding the Determination Date following the
Collection Period in which the insurance proceeds from claims in respect of any
Contracts under such blanket policy are or should have been received, the
deductible amount with respect to such claims. The Servicer shall not, however,
be required to deposit any deductible amount with respect to claims under
individual Hazard Insurance Policies maintained pursuant to subsection (a) of
this Section 4.09.
(c) If the Servicer shall have repossessed a Manufactured Home on
behalf of the Trustee, the Servicer shall either (i) maintain at its expense a
Hazard Insurance Policy with respect to such Manufactured Home, except that the
Servicer shall be responsible for depositing any deductible amount with respect
to all claims under individual Hazard Insurance Policies, or (ii) indemnify the
Trust Fund against any damage to such Manufactured Home prior to resale or other
disposition that would have been covered by such Hazard Insurance Policy.
(d) Any cost incurred by the Servicer in maintaining any of the
foregoing insurance, for the purpose of calculating monthly distributions to
Certificateholders, shall not be added to the amount owing under the Contract,
notwithstanding that the terms of the Contract so permit. The Servicer shall
not be entitled to reimbursement from the Contract Sellers, the Trustee or the
45
Certificateholders for such costs. Such costs (other than the cost of the
blanket policy) shall only be recovered out of later payments by the Obligor for
such premiums or, if the related Contract is liquidated after a default, out of
the related Liquidation Proceeds.
Section 4.10 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE.
The Servicer shall maintain, at its own expense, a blanket fidelity bond
and an errors and omissions insurance policy, with broad coverage with
responsible companies acceptable to FNMA and FHLMC, on all officers, employees
or other persons acting in any capacity with regard to the Contracts to handle
funds, money, documents and papers relating to the Contracts. Any such fidelity
bond and errors and omissions insurance shall protect and insure the Servicer
against losses, including forgery, theft, embezzlement, fraud, errors and
omissions and negligent acts of such persons. No provision of this Section 4.10
requiring such fidelity bond and errors and omissions insurance shall diminish
or relieve the Servicer from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such bond and insurance policy shall
be in an amount as is customary for servicers that service a portfolio of
manufactured housing installment sales contracts of $100 million or more and
that are generally acceptable as servicers to institutional investors. On or
before April 1 of every year, the Servicer shall cause to be delivered to the
Trustee a certified true copy of such fidelity bond and insurance policy and a
statement from the surety and the insurer that such fidelity bond or insurance
policy shall in no event be terminated or materially modified without 30 days'
prior written notice to the Trustee.
Section 4.11 COLLECTIONS UNDER HAZARD INSURANCE POLICIES, CONSENT TO
TRANSFERS OF MANUFACTURED HOMES, ASSUMPTION AGREEMENTS.
(a) In connection with its activities as administrator and Servicer
of the Contracts, the Servicer agrees to present, on behalf of itself, the
Trustee and the Certificateholders, claims to the insurer under any Hazard
Insurance Policies and, in this regard, to take such reasonable action as shall
be necessary to permit recovery under any Hazard Insurance Policies or any
blanket policies obtained pursuant to Section 4.09(b). Any amounts collected by
the Servicer under any such Hazard Insurance Policies shall be deposited in the
Certificate Account pursuant to Section 4.05, except to the extent they are
applied to the restoration of the related Manufactured Home or released to the
related Obligor in accordance with the normal servicing procedures of the
Servicer.
(b) In connection with any transfer of ownership of a Manufactured
Home by an Obligor to a Person, the Servicer shall consent to any such transfer
and permit the assumption by such Person of the Contract related to such
Manufactured Home, PROVIDED that (i) such Person, in the judgment of the
Servicer, meets the Servicer's underwriting standards then in effect, (ii) such
Person enters into an assumption agreement, (iii) the Servicer determines that
permitting such assumption by such Person will not materially increase the risk
of nonpayment of such Contract and (iv) such action will not adversely affect or
jeopardize any coverage under any insurance policy required by this Agreement.
In the event the Servicer determines that the conditions of the proviso of the
preceding sentence have not been fulfilled, then the Servicer shall withhold its
consent to any such transfer, but only to the extent permitted under the
Contract and applicable law and governmental regulations and only to the extent
that such action will not adversely affect or jeopardize any coverage under any
insurance policy required by this Agreement. In connection
46
with any such assumption, the rate of interest borne by, and all other
material terms of, the related Contract shall not be changed.
(c) In any case in which a Manufactured Home or Mortgaged Property is
to be conveyed to a Person by an Obligor, and such Person is to enter into an
assumption agreement or modification agreement or supplement to the Contract in
accordance with Section 4.11(b) or Section 4.07(d), upon the closing of such
conveyance, the Servicer shall cause the originals of the assumption agreement,
the release (if any), or the modification or supplement to the Contract to be
deposited with the Contract File or the Land Home Contract File, as applicable,
for such Contract. Any fee collected by the Servicer for entering into an
assumption or substitution of liability agreement with respect to such Contract
will be retained by the Servicer as additional servicing compensation.
Section 4.12 REALIZATION UPON DEFAULTED CONTRACTS.
Subject to applicable law, the Servicer shall repossess, foreclose upon
or otherwise comparably convert the ownership of Manufactured Homes and
Mortgaged Property securing all Contracts that come into default and which
the Servicer believes in its good faith business judgment will not be brought
current. Subject to Section 4.17, the Servicer shall manage, conserve and
protect such Manufactured Homes and Mortgaged Property for the purposes of
their prompt disposition and sale, and shall dispose of such Manufactured
Homes and Mortgaged Property on such terms and conditions as it deems in the
best interests of the Certificateholders. If the Servicer has actual
knowledge that a Mortgaged Property is affected by hazardous waste, then the
Servicer shall not cause the related Contract Seller to acquire title to such
Mortgaged Property in a foreclosure or similar proceeding. For purposes of
the proviso in the preceding sentence, the Servicer shall not be deemed to
have actual knowledge that a Mortgaged Property is affected by hazardous
waste unless it shall have received written notice that hazardous waste is
present on such property and such written notice has been made a part of the
Land Home Contract File with respect to the related Contract. In connection
with such activities, the Servicer shall follow such practices and procedures
as are consistent with Section 4.02.
Section 4.13 COSTS AND EXPENSES.
Except as otherwise expressly provided herein, all costs and expenses
incurred by the Servicer in carrying out its duties under this Agreement,
including all fees and expenses incurred in connection with the enforcement of
Contracts (including enforcement of defaulted Contracts and repossessions of
Manufactured Homes and Mortgaged Property securing such Contracts), shall be
paid by the Servicer, and the Servicer shall not be entitled to reimbursement
hereunder, except to the extent such reimbursement is specifically provided for
in this Agreement. Notwithstanding the foregoing, the Servicer shall be
reimbursed out of the Liquidation Proceeds of a defaulted Contract for
Liquidation Expenses incurred by it in realizing upon the related Manufactured
Home and Mortgaged Property, including, but not limited to: (i) costs of
refurbishing and securing such Manufactured Home; (ii) transportation expenses
incurred in moving the Manufactured Home; (iii) reasonable legal fees and
expenses of outside counsel; and (iv) sales commissions paid to Persons that are
not Affiliates of the Servicer. The Servicer shall not incur any Liquidation
Expenses unless it determines in its good faith business judgment that
47
incurring such expenses will increase the Net Liquidation Proceeds from such
Manufactured Home and Mortgaged Property.
Section 4.14 TRUSTEE TO COOPERATE.
(a) Upon payment in full of any Contract, the Servicer will notify
the Trustee on the next Distribution Date by a certificate of a Servicing
Officer (which certification shall include a statement to the effect that all
amounts received or to be received in connection with such payment which are
required to be deposited in the Certificate Account pursuant to Section 4.05
have been deposited). The Servicer is authorized to execute an instrument in
satisfaction of such Contract and to do such other acts and execute such other
documents as the Servicer deems necessary to discharge the Obligor thereunder
and eliminate the security interest in the Manufactured Home. The Servicer
shall determine when a Contract has been paid in full. To the extent
insufficient payments are received on a Contract mistakenly determined by the
Servicer to be prepaid or paid in full and satisfied, the shortfall shall be
paid by the Servicer out of its own funds by deposit into the Certificate
Account.
(b) From time to time as appropriate for servicing and foreclosure in
connection with any Land Home Contract, the Trustee shall, upon written request
of a Servicing Officer and delivery to the Trustee of a receipt signed by such
Servicing Officer, cause the original Land Home Contract and the related Land
Home Contract File to be released to the Servicer and shall execute such
documents as the Servicer shall deem necessary to the prosecution of any such
proceedings. The Trustee shall stamp the face of each such Land Home Contract
to be released to the Servicer with a notation that the Land Home Contract has
been assigned to the Trustee.
(c) The Servicer's receipt of a Land Home Contract and/or Land Home
Contract File shall obligate the Servicer to return the original Land Home
Contract and the related Land Home Contract File to the Trustee, or any person
acting on behalf of the Trustee, when its need by the Servicer has ceased unless
the Contract shall be liquidated, repurchased or replaced as described in
Section 3.05.
(d) Upon request of a Servicing Officer, the Trustee shall, at the
expense of the Servicer, perform such acts as are reasonably requested by the
Servicer (including the execution of documents) and otherwise cooperate with the
Servicer in the enforcement of rights and remedies with respect to Contracts.
Section 4.15 SERVICING AND OTHER COMPENSATION.
The Servicer, as compensation for its activities hereunder including the
payment of fees and expenses of the Trustee, the Certificate Administrator and
the Paying Agent pursuant to Section 9.05, shall be entitled to receive on each
Distribution Date the Monthly Servicing Fee and Repossession Profits pursuant to
Section 5.03.
Additional servicing compensation in the form of Late Payment Fees or
Extension Fees and any transfer of equity or assumption fees shall be retained
by the Servicer. The Servicer shall not be reimbursed for its costs and
expenses in servicing the Contracts except as otherwise expressly provided
herein.
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No transfer, sale pledge or other disposition of the Servicer's right to
receive all or any portion of the Monthly Servicing Fee shall be made, and any
such attempted transfer, sale, pledge or other disposition shall be void, unless
such transfer is made to a successor Servicer in connection with the assumption
by such successor Servicer of the duties hereunder pursuant to Section 7.07 and
all (and not a portion) of the Monthly Servicing Fee is transferred to such
successor Servicer.
Section 4.16 CUSTODY OF CONTRACTS.
(a) Subject to the terms and conditions of this Section 4.16, the
Servicer agrees to act as custodian of the Contract Files (other than the Land
Home Contract Files) for the benefit of the Certificateholders and the Trust
Fund. The Certificateholders by their acceptance of the Certificates, consent
to the Servicer acting as custodian, and the Servicer agrees to maintain the
Contract Files (other than the Land Home Contract Files) as custodian therefor.
(b) The Servicer agrees to maintain the related Contract Files (other
than the Land Home Contract Files) at its offices where they are presently
maintained, or at such other offices of the Servicer in the State of California
as shall from time to time be identified to the Trustee by ten days' prior
written notice. The Servicer may temporarily move individual Contract Files,
Land Home Contract Files or, in each case, any portion thereof without notice as
necessary to conduct collection and other servicing activities in accordance
with its customary practices and procedures.
(c) As custodian, the Servicer shall have and perform the following
powers and duties:
(i) hold the Contract Files (other than the Land Home Contract
Files) on behalf of the Certificateholders and the Trustee, maintain
accurate records pertaining to each Contract to enable it to comply with
the terms and conditions of this Agreement, maintain a current inventory
thereof and conduct annual physical inspections of Contract Files held by
it under this Agreement;
(ii) implement policies and procedures in writing and signed by a
Servicing Officer, with respect to persons authorized to have access to the
Contract Files on the Servicer's premises and the receipting for Contract
Files taken from their storage area by an employee of the Servicer for
purposes of servicing or any other purposes; and
(iii) attend to all details in connection with maintaining custody
of the Contract Files on behalf of the Certificateholders and the Trustee.
(d) In performing its duties under this Section 4.16, the Servicer
agrees to act in accordance with the standard of care set forth in Section 4.02.
The Servicer shall promptly report to the Trustee any failure by it to hold the
Contract Files as herein provided, and shall promptly take appropriate action to
remedy any such failure. In acting as custodian of the Contract Files, the
Servicer further agrees not to assert any beneficial ownership interests in the
Contracts, or the Contract Files. The Servicer agrees to indemnify the
Certificateholders and the Trustee for any and all liabilities, obligations,
losses, damages, payments, costs or expenses of any kind whatsoever which may be
imposed on, incurred or asserted against the Certificateholders and the Trustee
as the result of any act or omission by the Servicer relating to the maintenance
and
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custody of the Contract Files; PROVIDED, HOWEVER, that the Servicer will not
be liable for any portion of any such amount resulting from the negligence or
willful misconduct of any other Person.
(e) Not later than 60 days from the Closing Date, each Contract
Seller shall deliver, or cause to be delivered, to the Trustee the following:
(i) the Land Home Contract Files;
(ii) the original Land Home Contract endorsed as provided in
Section 3.02(x) (which endorsement may be manual or facsimile signature) on
behalf of the applicable Contract Seller; and
(iii) an Assignment from BAFSB (on behalf of the applicable
Contract Seller) to the Trustee, which Assignment shall be in form and
substance for recording, but shall not be recorded except as required by
Section 4.22 below;
Notwithstanding anything to the contrary contained in this Section 4.16(e), in
those instances where the public recording office retains the original Mortgage,
the Assignment of the Mortgage or the intervening Assignments of the Mortgage
after it has been recorded, the related Contract Seller shall be deemed to have
satisfied its obligations hereunder upon delivery to the Trustee of a copy of
such Mortgage, such Assignment or Assignments of Mortgage certified by the
public recording office to be a true copy of the recorded original thereof.
Within 90 days following the Closing Date, the Trustee shall review each
Land Home Contract File to determine that all required documents set forth in
each item of the first paragraph of this Section 4.16(e) have been executed and
received and that such documents relate to the Land Home Contracts identified on
the Contract Schedule. For purposes of this determination, the Trustee may rely
on the purported due execution and genuineness of any signature thereon. If
within such 90 day period the Trustee finds that any document constituting a
part of a Land Home Contract File was not executed, defective or received or is
unrelated to the Land Home Contracts identified in the Contract Schedule (in
this Section 4.16(e), a "defect"), the Trustee shall promptly upon the
conclusion of its review notify the Servicer and the Servicer shall notify the
related Contract Seller. The related Contract Seller shall have a period of 90
days from receipt of such notice within which to correct or cure any such defect
after the Contract Seller has been notified of such. If the Contract Seller
cannot correct or cure any such defect with respect to a Land Home Contract
within such 90 day period, it shall comply with the provisions of Section 3.05
hereof.
If recordation of any Assignment is required hereunder, the original of
each such recorded Assignment shall be delivered to the Trustee within 10 days
following the date on which it is returned to the Contract Seller by the office
with which such Assignment was filed for recordation. Upon receipt by the
Trustee of the recorded Assignment, such recorded Assignment shall become part
of the Land Home Contract File.
(f) CUSTODIAL ARRANGEMENTS. The Trustee may appoint a custodian who
is acceptable to the Servicer and each Contract Seller and who, upon execution
of a custodial agreement, shall maintain possession of the Land Home Contract
Files, together with assignments in recordable
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form, to the Trustee or another custodian designated by the Trustee, and the
Trustee agrees that upon such delivery it shall maintain, or cause such
custodian to maintain, or such part of them as the Trustee shall direct, as
agent of the Trustee pursuant to the terms of such custodial agreement. The
appointment of such custodian shall not relieve the trustee of its
obligations hereunder.
The Trustee shall keep the Servicer apprised at all times after the Closing
Date of the location of the Land Home Contract Files. The Trustee shall take
all steps that are reasonably necessary or appropriate in order to facilitate
the Servicer's access to the Land Home Contract Files during normal business
hours of the Trustee or any custodian and shall cooperate fully with the
Servicer in securing such access.
Section 4.17 REMIC COMPLIANCE.
(a) The REMIC Administrator shall make an election to treat the Trust
Fund as a REMIC under the Code and, if necessary, under applicable state law.
Such election will be made on Form 1066 or other appropriate federal tax or
information return (including Form 8811) or any appropriate state return for the
taxable year ending on the last day of the calendar year in which the
Certificates are issued. For the purposes of the REMIC election in respect of
the Trust Fund, each of the Senior, Class M and Class B Certificates shall be
designated as the "regular interests" and the Class R Certificates shall be
designated as the sole class of "residual interests" in the REMIC. The REMIC
Administrator and the Trustee shall not permit the creation of any "interests"
(within the meaning of Section 860G of the Code) in the REMIC other than the
Certificates.
(b) The Closing Date is hereby designated as the "startup day" (the
"Startup Date") of the Trust Fund within the meaning of Section 860G(a)(9) of
the Code.
(c) The REMIC Administrator shall at all times hold a Class R
Certificate representing a 0.01% Percentage Interest of all Class R Certificates
and shall be designated as "the tax matters person" with respect to the REMIC in
the manner provided under Treasury regulations section 1.860F-4(d) and temporary
Treasury regulations section 301.6231(a)(7)-1T. The REMIC Administrator, as tax
matters person, shall (i) act on behalf of the REMIC in relation to any tax
matter or controversy involving the Trust Fund and (ii) represent the Trust Fund
in any administrative or judicial proceeding relating to an examination or audit
by any governmental taxing authority with respect thereto. The legal expenses,
including without limitation attorneys' or accountants' fees, and costs of any
such proceeding and any liability resulting therefrom shall be expenses of the
Trust Fund and the REMIC Administrator shall be entitled to reimbursement
therefor out of amounts attributable to the Contracts on deposit in the
Certificate Account provided by Section 5.03 unless such legal expenses and
costs are incurred by reason of the Servicer's willful misfeasance, bad faith or
gross negligence. If the REMIC Administrator is no longer the Servicer
hereunder, at its option the REMIC Administrator may continue its duties as tax
matters person and shall be paid reasonable compensation not to exceed $3,000
per year by any successor Servicer hereunder for so acting as the REMIC
Administrator.
(d) The REMIC Administrator shall prepare or cause to be prepared all
of the tax returns that it determines are required with respect to the REMIC
created hereunder and deliver such tax returns in a timely manner to the Trustee
and the Trustee shall sign and file such tax
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returns in a timely manner. The expenses of preparing such returns shall be
borne by the REMIC Administrator without any right of reimbursement therefor.
The REMIC Administrator agrees to indemnify and hold harmless the Trustee
with respect to any tax liability arising from the Trustee's signing of tax
returns that contain errors or omissions. The Trustee and Servicer shall
promptly provide the REMIC Administrator with such information as the REMIC
Administrator may from time to time request for the purpose of enabling the
REMIC Administrator to prepare tax returns.
(e) The REMIC Administrator shall provide (i) to any transferor of a
Class R Certificate such information as is necessary for the application of any
tax relating to the transfer of a Class R Certificate to any Person who is not a
Permitted Transferee, (ii) to the Trustee and the Trustee shall forward to the
Certificateholders such information or reports as are required by the Code or
the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption) and
(iii) to the Internal Revenue Service the name, title, address and telephone
number of the person who will serve as the representative of the REMIC.
(f) The REMIC Administrator and the Servicer shall take such actions
and shall cause the REMIC created hereunder to take such actions as are
reasonably within the REMIC Administrator's or the Servicer's control and the
scope of its duties more specifically set forth herein as shall be necessary or
desirable to maintain the status thereof as a REMIC under the REMIC Provisions
(and the Trustee shall assist the Servicer and the REMIC Administrator, to the
extent reasonably requested by the Servicer and the REMIC Administrator to do
so). The REMIC Administrator and the Servicer shall not knowingly or
intentionally take any action, cause the Trust Fund to take any action or fail
to take (or fail to cause to be taken) any action reasonably within their
respective control that, under the REMIC Provisions, if taken or not taken, as
the case may be, could (i) endanger the status of the REMIC as a REMIC or (ii)
result in the imposition of a tax upon the REMIC (including but not limited to
the tax on prohibited transactions as defined in Section 860F(a)(2) of the Code
and the tax on contributions to a REMIC set forth in Section 860(G)(d) of the
Code) (either such event, in the absence of an Opinion of Counsel or the
indemnification referred to in this sentence, an "Adverse REMIC Event") unless
the REMIC Administrator or the Servicer, as applicable, has received an Opinion
of Counsel (at the expense of the party seeking to take such action or, if such
party fails to pay such expense, and the REMIC Administrator or the Servicer, as
applicable, determines that taking such action is in the best interest of the
Trust Fund and the Certificateholders, at the expense of the Trust Fund, but in
no event at the expense of the REMIC Administrator, the Contract Sellers, the
Servicer or the Trustee) to the effect that the contemplated action will not,
with respect to the REMIC created hereunder, endanger such status or, unless the
REMIC Administrator, the Servicer or both, as applicable, determine in its or
their sole discretion to indemnify the Trust Fund against the imposition of such
a tax, result in the imposition of such a tax. Wherever in this Agreement a
contemplated action may not be taken because the timing of such action might
result in the imposition of a tax on the Trust Fund, or may only be taken
pursuant to an Opinion of Counsel that such action would not impose a tax on the
Trust Fund, such action may nonetheless be taken provided that the indemnity
given in the preceding sentence with respect to any taxes that might be imposed
on the Trust Fund has been given and that all other preconditions to the taking
of such action have been satisfied. The Trustee shall not take or fail to take
any action (whether or not authorized hereunder) as to which the REMIC
Administrator or the Servicer, as applicable, has advised it in writing that it
has received an Opinion of Counsel to the effect that an
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Adverse REMIC Event could occur with respect to such action. In addition,
prior to taking any action with respect to the REMIC or its assets, or
causing the REMIC to take any action, which is not expressly permitted under
the terms of this Agreement, the Trustee will consult with the REMIC
Administrator or the Servicer, as applicable, or its designee, in writing,
with respect to whether such action could cuse an Adverse REMIC Event to
occur with respect to the REMIC, and the Trustee shall not take any such
action or cause the REMIC to take any such action as to which the REMIC
Administrator or the Servicer, as applicable, has advised it in writing that
an Adverse REMIC Event could occur. The REMIC Administrator or the Servicer,
as applicable, may consult with counsel to make such written advice, and the
cost of same shall be borne by the party seeking to take the action not
expressly permitted by this Agreement, but in no event at the expense of the
REMIC Administrator or the Servicer. At all times as may be required by the
Code, the Servicer will to the extent within its control and the scope of its
duties more specifically set forth herein, maintain substantially all of the
assets of the REMIC as "qualified mortgages" as defined in Section 860G(a)(3)
of the Code and "permitted investments" as defined in Section 860G(a)(5) of
the Code.
(g) In the event that any tax, including interest, penalties,
additional amounts or additions to tax (a "Tax"), is imposed on the Trust Fund,
such Tax shall be charged against amounts otherwise required to be distributed
to the Holders of the Class R Certificates. The Trustee is hereby authorized to
retain, or cause the Paying Agent to retain, from amounts otherwise required to
be distributed to the Holders of the Class R Certificates sufficient funds to
pay or provide for the payment of, and to actually pay, or cause the Paying
Agent to pay, such Tax as is legally owed by the Trust Fund (but such
authorization shall not prevent the Servicer from contesting any such Tax in
appropriate proceedings, and withholding payment of such Tax, if permitted by
law, pending the outcome of such proceedings). To the extent that sufficient
amounts cannot be so retained to pay or provide for the payment of any tax
imposed on gain realized from any prohibited transaction (as defined in the
REMIC Provisions), the Trustee is hereby authorized to and shall segregate, into
a separate non-interest-bearing account, the net income from such prohibited
transactions and pay, or cause the Paying Agent to pay, such Tax. In the event
any (i) amounts initially retained from amounts required to be distributed to
the Holders of the Class R Certificates and (ii) income so segregated and
applied towards the payment of such Tax shall not be sufficient to pay such Tax
in its entirety, the amount of the shortfall shall be paid from funds in the
Certificate Account notwithstanding anything to the contrary contained herein.
To the extent any such segregated income or funds from the Certificate Account
are paid to the Internal Revenue Service, the Trustee shall retain, or cause to
be retained, an amount equal to the amount of such income or funds so paid from
future amounts otherwise required to be distributed to the Holders of the
Class R Certificates and shall deposit such retained amounts in the Certificate
Account for distribution to the Holders of the Regular Certificates.
(h) The Trustee and the Servicer shall, for federal income tax
purposes, maintain books and records with respect to the REMIC on a calendar
year and on an accrual basis or as otherwise may be required by the REMIC
Provisions.
(i) Following the Startup Day, neither the Servicer nor the Trustee
shall accept any contributions of assets to the REMIC unless (subject to
Section 4.17(f)) the Servicer and the Trustee shall have received an Opinion of
Counsel (at the expense of the party seeking to make such contributions) to the
effect that the inclusion of such assets in the REMIC will not cause the
53
REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding or subject the REMIC to any tax under the REMIC Provisions or
other applicable provisions of federal, state and local law or ordinances.
(j) Neither the Servicer nor the Trustee shall (subject to
Section 4.17(f)) enter into any arrangement by which the REMIC will receive a
fee or other compensation for services nor permit the REMIC to receive any
income from assets other than "qualified mortgages" as defined in
Section 860G(a)(3) of the Code or "permitted investments" as defined in
Section 860G(a)(5) of the Code.
(k) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date" by which the
Certificate Balance of each Class of Certificates representing a regular
interest in the REMIC would be reduced to zero is October 10, 2027 which is the
Distribution Date immediately following the latest schedule maturity of any
Contract.
(l) Within 30 days after the Closing Date, the REMIC Administrator
shall prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for the REMIC.
(m) Neither the Trustee nor the Servicer shall sell, dispose of or
substitute for any of the Contracts (except in connection with (i) the default,
imminent default or foreclosure of a Contract, including but not limited to, the
acquisition or sale of a Manufactured Home or a Mortgaged Property acquired by
deed in lieu of foreclosure, (ii) the bankruptcy of the REMIC, (iii) the
termination of the REMIC pursuant to Article X of this Agreement or (iv) a
purchase of Contracts pursuant to Article III of this Agreement) nor acquire any
assets for the REMIC, nor sell or dispose of any investments in the Certificate
Account for gain nor accept any contributions to the REMIC after the Closing
Date unless it has received an Opinion of Counsel that such sale, disposition,
substitution or acquisition will not (a) affect adversely the status of the
REMIC as a REMIC or (b) unless the Servicer has determined in its sole
discretion to indemnify the Trust Fund against such tax, cause the REMIC to be
subject to a tax on "prohibited transactions" or "contributions" pursuant to the
REMIC Provisions.
(n) Each Holder of a Class R Certificate, by purchasing such Class
R Certificate, agrees to give the Servicer written notice that it is a
"pass-through interest holder" within the meaning of Temporary Treasury
Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon becoming the Holder
of such Class R Certificate, if it is, or is holding such Class R Certificate
on behalf of, a "pass-through interest holder."
(o) In the event that any Manufactured Home or Mortgaged Property is
acquired in a repossession (an "REO Property"), the Servicer shall sell any REO
Property within three years of its acquisition by the Trust Fund, unless (i) at
least 60 days before such three-year period would otherwise expire, the Servicer
applies for an extension of such three-year period pursuant to Sections
856(e)(3) and 860G(a)(8)(A) of the Code, in which case the Servicer shall sell
such REO Property within the applicable extension period or (ii) at the request
of the Servicer, the Trustee seeks, and subsequently receives, an Opinion of
Counsel, addressed to the Trustee and the Servicer, to the effect that the
holding by the Trust Fund of such REO Property subsequent to three years after
its acquisition will not result in the imposition of taxes on "prohibited
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transactions" of the Trust Fund as defined in Section 860F of the Code or cause
the Trust Fund to fail to qualify as a REMIC at any time that any Certificates
are outstanding. The Servicer shall manage, conserve, protect and operate each
REO Property solely for the purpose of its prompt disposition and sale in a
manner that does not cause any such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or
result in the receipt by the REMIC of any "income from non-permitted assets"
within the meaning of Section 860F(a)(2)(B) of the Code or any "net income from
foreclosure property" which is subject to taxation under the REMIC Provisions.
In connection with its efforts to sell such REO Property, the Servicer shall
either itself or through an agent selected by the Servicer protect and conserve
such REO Property in the same manner and to such extent as is customary in the
locality where such REO Property is located and may, incident to its
conservation and protection of the interests of the Certificateholders, rent the
same, or any part thereof, as the Servicer deems to be in the best interest of
the Servicer and the Certificateholders for the period prior to the sale of such
REO Property.
(p) The Servicer shall segregate and hold all funds collected and
received in connection with the operation of any REO Property separate and apart
from its own funds and general assets and shall establish and maintain with
respect to each REO Property an account held in trust for the Trustee for the
benefit of the Certificateholders (each, an "REO Account"), which shall be an
Eligible Account and the funds therein shall be invested in Eligible Investments
that will mature not later than the Business Day preceding the applicable
Determination Date. The Servicer shall be entitled to retain or withdraw any
interest income paid on funds deposited in each REO Account by the depository.
(q) The Servicer shall deposit, or cause to be deposited, on a daily
basis in each REO Account all revenues received with respect to operation of the
related REO Property and shall withdraw therefrom funds necessary for the proper
operation, management and maintenance of the REO Property. On or before each
Determination Date, the Servicer shall withdraw from each REO Account and
deliver to the Trustee for deposit into the Certificate Account the income from
the REO Property on deposit in the REO Account, net of its reasonable fees and
expenses.
(r) The disposition of REO Property shall be carried out by the
Servicer at such price and upon such terms and conditions as the Servicer shall
deem necessary or advisable, as shall be normal and usual in its general
servicing activities.
(s) The proceeds from the disposition of any REO Property, net of any
reimbursement to the Servicer as provided above, shall be deposited in the REO
Account and shall be deposited in the Certificate Account when the related
Contract becomes a Liquidated Contract.
Section 4.18 MANAGEMENT OF REO PROPERTY.
(a) If the Trustee acquires any REO Property pursuant to Section
4.17, the Servicer shall have full power and authority, subject only to the
specific requirements and prohibitions of this Agreement, to do any and all
things in connection therewith as are consistent with the manner in which the
Servicer manages and operates similar property owned by the Servicer or any of
its Affiliates, all on such terms and for such period as the Servicer deems to
be in the best interests of Certificateholders, and, consistent therewith, shall
withdraw from the REO Account, to the extent
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of amounts on deposit therein with respect to such REO Property, funds
necessary for the proper operation, management and maintenance of such REO
Property, including:
(i) all insurance premiums due and payable in respect to such
REO Property;
(ii) all real estate taxes and assessments in respect to such REO
Property that may result in the imposition of a lien thereon; and
(iii) all costs and expenses necessary to maintain such REO
Property.
To the extent that amounts on deposit in the REO Account in respect of any
REO Property are insufficient for the purposes set forth in (i)-(iii) above with
respect to such REO Property, the Servicer shall advance from its own funds such
amount as is necessary for such purposes if, but only if, the Servicer would
make such advances if the Servicer owned such REO Property and if in the
Servicer's judgment, the payment of such amounts will be recoverable from the
operation or sale of such REO Property.
(b) Notwithstanding the foregoing, the Servicer shall not:
(i) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than ten percent of the construction of such building or
other improvement was completed before default on the related Contract
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(ii) directly operate, or allow any other Person to directly
operate, any REO Property on any date more than 90 days after its date of
acquisition;
unless, in any such case, the Servicer has requested and received an Opinion of
Counsel to the effect that such action will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held by the Trust Fund, in which case the
Servicer may take such actions as are specified in such Opinion of Counsel.
(c) The Servicer may contract with any Independent Contractor for the
operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith;
(ii) any such contract shall require, or shall be administered to
require, that (A) the Independent Contractor pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including those listed in subsection (a) hereof, (B) hold all
related revenues in a segregated account, which shall be an Eligible
Account, and (C) remit all related revenues collected (net of such costs
and expenses and any fees retained by such Independent Contractor) to the
Servicer on a monthly or more frequent basis;
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(iii) none of the provisions of this Section 4.18(c) relating to
any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Servicer of any of its duties and
obligations to the Trustee on behalf of Certificateholders with respect to
the operation and management of any such REO Property; and
(iv) the Servicer shall be obligated with respect thereto to the
same extent as if it alone were performing all duties and obligations in
connection with the operation and management of such REO Property.
The Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Servicer by such Independent
Contractor, and nothing in this Agreement shall be deemed to limit or modify
such indemnification. The Servicer shall be entitled to pay all fees owed to
any such Independent Contractor out of the REO Account pursuant to Section 4.17.
(d) Subject to Section 4.18(b), the Servicer shall itself be entitled
to operate and manage any foreclosure property and, in such event, shall be
entitled to pay itself a monthly management fee in accordance with Section 4.17;
PROVIDED that the amount of such management fee shall not exceed the amount
customarily charged for the operation and management of similar property in the
locality of such REO Property by property managers other than the Servicer or
its Affiliates.
Section 4.19 REPORTS TO THE SECURITIES AND EXCHANGE COMMISSION.
The Servicer shall use reasonable efforts to assist either Contract Seller
in obtaining any information maintained by it in the ordinary course of
performing its duties hereunder that is necessary for either Contract Seller, on
behalf of the Trust Fund, to cause to be filed with the Securities and Exchange
Commission any periodic reports required to be filed under the provisions of the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Securities and Exchange Commission thereunder.
Section 4.20 ANNUAL STATEMENT AS TO COMPLIANCE.
The Servicer will deliver to each Contract Seller, the Trustee and each
Rating Agency on or before April 1 of each year, beginning with the first April
1 that occurs after the Cut-Off Date, an Officer's Certificate (i) stating that
a review of the activities of the Servicer during the preceding calendar year
and of performance under this Agreement has been made under such officer's
supervision, and (ii) stating that to the best of such officer's knowledge,
based on such review, the Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof.
Section 4.21 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
On or before April 1 of each year, commencing in 1999, the Servicer, at its
expense, shall cause a firm of independent public accountants which is a member
of the American Institute of Certified Public Accountants to furnish a statement
to each Contract Seller, the Trustee and each
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Rating Agency to the effect that such firm has examined certain documents and
records relating to the servicing of the Contracts under this Agreement and,
at the option of the Servicer, manufactured housing installment sale
contracts and installment loan agreements under pooling and servicing
agreements substantially similar to this Agreement with regard to servicing
procedures (such statement to have attached thereto a schedule setting forth
the pooling and servicing agreements covered thereby, including this
Agreement) and that, on the basis of such examination conducted substantially
in compliance with this Agreement or such agreements, as the case may be, and
generally accepted auditing standards, such servicing has been conducted
substantially in compliance with this Agreement or such pooling and servicing
agreements, as the case may be, except for such exceptions as such firm
believes to be immaterial and such other exceptions or errors in records that
may be set forth in such statement. For purposes of such statement, such
firm may assume conclusively that all pooling and servicing agreements among
the Contract Sellers, the Servicer and the Trustee relating to certificates
evidencing an interest in actuarial manufactured housing contracts are
substantially similar to one another, except for any such pooling and
servicing agreement which by its terms specifically states otherwise.
Section 4.22 RETITLING OF LAND HOME CONTRACTS.
If a Contract Seller or the Servicer receives actual notice or knowledge
that a Contract Seller is no longer assigned a long-term senior debt rating from
▇▇▇▇▇'▇ of Baa3 or higher, of BBB- or higher from Fitch, or an equivalent rating
from any nationally recognized statistical rating organization, the Servicer
shall promptly provide notice to the Trustee that it no longer has such rating.
If at any time during the term of this Agreement the Trustee receives written
notice from the Servicer or a Contract Seller that a Contract Seller does not
have a long-term senior debt rating from ▇▇▇▇▇'▇ of Baa3 or higher, of BBB- or
higher from Fitch, or an equivalent rating from any nationally recognized
statistical rating organization, or if the Trustee otherwise becomes aware that
a Contract Seller is no longer assigned such rating, the Trustee, at the related
Contract Seller's expense, shall file promptly in the appropriate recording
offices the assignments to the Trustee on behalf of the Trust Fund of each
Mortgage securing a Land Home Contract sold by such Contract Seller to the Trust
Fund.
ARTICLE V
PAYMENTS, MONTHLY ADVANCES AND MONTHLY REPORTS
Section 5.01 MONTHLY ADVANCES BY THE SERVICER.
(a) By the close of business on the day prior to each Distribution
Date, the Servicer shall (i) cause to be deposited, out of its own funds, in the
Certificate Account the Monthly Advance for the related Distribution Date,
(ii) direct the Trustee to apply all or a portion of the Excess Contract
Payments in the Certificate Account to make such Monthly Advance, or (iii) do
any combination of clauses (i) and (ii) to make such Monthly Advance. To the
extent that an Excess Contract Payment (or any portion thereof) that has been
applied pursuant to clause (ii) or (iii) is required for application as to all
or a portion of a scheduled payment due on the related Contract, the Servicer
shall deposit, out of its own funds, the amount of such Excess Contract Payment
(or the portion thereof required for such scheduled payment) into the
Certificate
58
Account on the immediately succeeding Due Date, and the amount so deposited
will become part of the Outstanding Amount Advanced.
(b) The Servicer shall reimburse itself for the Outstanding Amount
Advanced out of (i) collections of delinquent payments of principal and interest
on Contracts as to which the Servicer previously made a Monthly Advance,
(ii) available funds in the Certificate Account attributable to Excess Contract
Payments or (iii) any combination of clauses (i) and (ii) above.
(c) If the Servicer determines that any advance made pursuant to
Section 5.01(a) has become a Nonrecoverable Advance and at the time of such
determination there exists an Outstanding Amount Advanced, then the Servicer
shall reimburse itself out of funds in the Certificate Account for the amount of
such Nonrecoverable Advance (but only if there will not be a shortfall in
respect of principal and interest distributions on the Certificates (other than
the Class R Certificates) for the next succeeding Distribution Date) by
withdrawing such amount pursuant to Section 5.03(v), but not in excess of such
Outstanding Amount Advanced. If a Contract becomes a Liquidated Contract and at
such time there exists an Outstanding Amount Advanced, then the Servicer shall
reimburse itself out of funds in the Certificate Account for the portion of
Monthly Advances equal to the aggregate of delinquent scheduled payments on such
Contract to the Due Date in the Collection Period in which such Contract became
a Liquidated Contract, but not in excess of such Outstanding Amount Advanced.
Section 5.02 PAYMENTS.
(a) On each Distribution Date, the Trustee shall withdraw from the
Certificate Account an amount equal to the sum of the Available Distribution
Amount and the Reserve Account Draw Amount, if any, for such Distribution Date
and apply such amount, in the following order of priority, to the distribution
of:
(i) to the Senior Certificateholders, the Class A-1 Interest
Distribution Amount, the Class A-2 Interest Distribution Amount, the
Class A-3 Interest Distribution Amount, the Class A-4 Interest Distribution
Amount, the Class A-5 Interest Distribution Amount, the Class A-6 Interest
Distribution Amount and the Class A-7 Interest Distribution Amount
concurrently to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3, Class A-4, Class A-5,
Class A-6 and Class A-7 Certificateholders, respectively; PROVIDED that if
the Available Distribution Amount, together with the Reserve Account Draw
Amount, is insufficient to make the full distributions of interest referred
to in this clause (i), the Available Distribution Amount, together with the
Reserve Account Draw Amount, shall be distributed on such Classes of
Certificates pro rata based on such full amounts allocable to such Classes;
(ii) to the Senior Certificateholders, the Formula Principal
Distribution Amount in the following order of priority:
(a) to the Class A-1 Certificateholders until the
Certificate Balance of the Class A-1 Certificates is reduced to zero;
(b) to the Class A-2 Certificateholders until the
Certificate Balance of the Class A-2 Certificates is reduced to zero;
59
(c) to the Class A-3 Certificateholders until the
Certificate Balance of the Class A-3 Certificates is reduced to zero;
(d) to the Class A-4 Certificateholders until the
Certificate Balance of the Class A-4 Certificates is reduced to zero;
(e) to the Class A-5 Certificateholders until the
Certificate Balance of the Class A-5 Certificates is reduced to zero;
(f) to the Class A-6 Certificateholders until the
Certificate Balance of the Class A-6 Certificates is reduced to zero;
and
(g) to the Class A-7 Certificateholders until the
Certificate Balance of the Class A-7 Certificates is reduced to zero;
(iii) to the Class M Certificateholders, the Class M Interest
Distribution Amount;
(iv) to the Class M Certificateholders, the Formula Principal
Distribution Amount until the Class M Certificate Balance is reduced to
zero;
(v) to the Class B-1 Certificateholders, the Class B-1 Interest
Distribution Amount;
(vi) to the Class B-1 Certificateholders, the Formula Principal
Distribution Amount until the Class B-1 Certificate Balance is reduced to
zero;
(vii) to the Class B-2 Certificateholders, the Class B-2
Interest Distribution Amount;
(viii) to the Class B-2 Certificateholders, the Formula
Principal Distribution Amount until the Class B-2 Certificate Balance is
reduced to zero;
(ix) to the Reserve Account, any remaining Available Distribution
Amount until the amount on deposit therein equals the Reserve Account Cap;
and
(x) to the Class R Certificateholders, any remaining Available
Distribution Amount.
In addition, notwithstanding the prioritization of the distribution of the
Formula Principal Distribution Amount to the Holders of the Senior Certificates
pursuant to clause (ii) above, on a Distribution Date, if any, in respect of
which a Deficiency Event is in effect, the portion of the Formula Principal
Distribution Amount for such Distribution Date that would otherwise be
distributed sequentially to the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6 and Class A-7 Certificateholders pursuant to clause (ii)
above will instead be distributed to the Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5, Class A-6 and Class A-7 Certificateholders pro rata based
upon the Certificate Balance of each such Class until the Certificate Balances
of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6 and
60
Class A-7 Certificates have been reduced to zero. A "Deficiency Event" will be
in effect for any Distribution Date as to which the Pool Scheduled Principal
Balance is equal to or less than the aggregate of the Certificate Balances of
the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6 and
Class A-7 Certificates.
Furthermore, notwithstanding the foregoing, if the Formula Principal
Distribution Amount allocable to the Holders of the Class A-7 Certificates on
any Distribution Date pursuant to clause (ii) above exceeds the Class A-7
Certificate Balance for such Distribution Date, such excess will be distributed
to the Class M Certificateholders. If the Formula Principal Distribution Amount
allocable to the Class M Certificateholders on any Distribution Date pursuant to
clause (iv) above exceeds the Class M Certificate Balance for any such
Distribution Date, such excess will be distributed to the Class B-1
Certificateholders. If the Formula Principal Distribution Amount allocable to
the Class B-1 Certificateholders on any Distribution Date pursuant to clause
(vi) above exceeds the Class B-1 Certificate Balance for any such Distribution
Date, such excess will be distributed to the Class B-2 Certificateholders.
Such distributions to the Class A-1 Certificateholders, Class A-2
Certificateholders, Class A-3 Certificateholders, Class A-4 Certificateholders,
Class A-5 Certificateholders, Class A-6 Certificateholders, Class A-7
Certificateholders, Class M Certificateholders, Class B-1 Certificateholders and
Class B-2 Certificateholders shall be made such that the Trustee shall
distribute (a) to each Class A-1 Certificateholder as of the preceding Record
Date an amount equal to the product of the aggregate Percentage Interest
evidenced by such Certificateholder's Class A-1 Certificates and the Class A-1
Distribution Amount for such Distribution Date, (b) to each Class A-2
Certificateholder as of the preceding Record Date an amount equal to the product
of the aggregate Percentage Interest evidenced by such Certificateholder's
Class A-2 Certificates and the Class A-2 Distribution Amount for such
Distribution Date, (c) to each Class A-3 Certificateholder as of the preceding
Record Date an amount equal to the product of the aggregate Percentage Interest
evidenced by such Certificateholder's Class A-3 Certificates and the Class A-3
Distribution Amount for such Distribution Date, (d) to each Class A-4
Certificateholder as of the preceding Record Date an amount equal to the product
of the aggregate Percentage Interest evidenced by such Certificateholder's
Class A-4 Certificates and the Class A-4 Distribution Amount for such
Distribution Date, (e) to each Class A-5 Certificateholder as of the preceding
Record Date an amount equal to the product of the aggregate Percentage Interest
evidenced by such Certificateholder's Class A-5 Certificates and the Class A-5
Distribution Amount for such Distribution Date, (f) to each Class A-6
Certificateholder as of the preceding Record Date an amount equal to the product
of the aggregate Percentage Interest evidenced by such Certificateholder's
Class A-6 Certificates and the Class A-6 Distribution Amount for such
Distribution Date, (g) to each Class A-7 Certificateholder as of the preceding
Record Date an amount equal to the product of the aggregate Percentage Interest
evidenced by such Certificateholder's Class A-7 Certificates and the Class A-7
Distribution Amount for such Distribution Date, (h) to each Class M
Certificateholder as of the preceding Record Date an amount equal to the product
of the aggregate Percentage Interest evidenced by such Certificateholder's
Class M Certificates and the Class M Distribution Amount, (i) to each Class B-1
Certificateholder as of the preceding Record Date an amount equal to the product
of the aggregate Percentage Interest evidenced by such Certificateholder's
Class B-1 Certificates and the Class B-1 Distribution Amount for such
Distribution Date and (j) to each Class B-2 Certificateholder as of the
preceding Record Date an
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amount equal to the product of the aggregate Percentage Interest evidenced by
such Certificateholder's Class B-2 Certificates and the Class B-2
Distribution Amount for such Distribution Date. The Trustee shall pay each
Certificateholder of record by check mailed to such Certificateholder at the
address for such Certificateholder appearing on the Certificate Register;
PROVIDED that if such Certificateholder holds Certificates evidencing a
Percentage Interest aggregating 10% or more with respect to such Class and
has given the Trustee appropriate written instructions at least 10 days prior
to the related Distribution Date (which instructions, until revised, shall
remain operative for all Distribution Dates thereafter), the Trustee shall
pay such Certificateholder by wire transfer of funds. If on any
Determination Date the Servicer determines that there are no Contracts
outstanding and no other funds or assets in the Trust Fund other than the
funds in the Certificate Account, the Servicer promptly shall instruct the
Trustee to send the final distribution notice to each Certificateholder and
make provision for the final distribution in accordance with Section
10.01(c). Final payment of any Certificate shall be made only upon
presentation of such Certificate at the office or agency of the Certificate
Registrar.
(b) On each Distribution Date, the Trustee shall withdraw from the
Certificate Account (solely out of the Available Distribution Amount for such
Distribution Date after giving effect to the distributions made to the
Certificateholders pursuant to Section 5.02(a)(i)-(viii) and to the Reserve
Account pursuant to Section 5.02(a)(ix) on such Distribution Date) and
distribute the amount specified in Section 5.02(a)(x) for such Distribution Date
to the Class R Certificateholders by wire transfer of immediately available
funds. Such distribution shall be made by a means that is mutually acceptable
to the Trustee and the Class R Certificateholders.
(c) Each distribution with respect to a Global Certificate shall be
paid to the Depository, which shall credit the amount of such distribution to
the accounts of its Depository Participants in accordance with its normal
procedures. Each Depository Participant shall be responsible for disbursing
such distribution to the Certificate Owners that it represents and to each
indirect participating brokerage firm (a "brokerage firm" or "indirect
participating firm") for which it acts as agent. Each brokerage firm shall be
responsible for disbursing funds to the Certificate Owners that it represents.
All such credits and disbursements with respect to a Global Certificate are to
be made by the Depository and the Depository Participants in accordance with the
provisions of the Certificates. Neither the Trustee, the Certificate Registrar,
the Contract Seller nor the Servicer shall have any responsibility therefor. To
the extent applicable and not contrary to the rules of the Depository, the
Trustee shall comply with the provisions of the forms of the Certificates as set
forth in EXHIBIT ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, EXHIBIT ▇-▇, ▇▇▇▇▇▇▇ ▇-▇,
▇▇▇▇▇▇▇ ▇-▇, EXHIBIT ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, EXHIBIT B-10 and EXHIBIT C
(reverse of Certificates) hereto.
Section 5.03 PERMITTED WITHDRAWALS FROM THE CERTIFICATE ACCOUNT.
The Servicer may, from time to time as provided herein, make withdrawals
from the Certificate Account of amounts deposited therein pursuant to Section
4.05 that are attributable to the Contracts for the following purposes:
(i) to pay to the related Contract Seller with respect to each
Contract sold by it or property acquired in respect thereof that has been
repurchased or replaced pursuant
62
to Section 3.05, all amounts received thereon that are specified in such
Section to be property of such Contract Seller;
(ii) to reimburse itself for the payment of taxes or charges out
of Liquidation Proceeds (to the extent not previously retained from such
Liquidation Proceeds prior to their deposit) or out of payments expressly
made by the related Obligor to reimburse the Servicer for such taxes or
charges, as permitted by Section 4.06;
(iii) to pay to itself the Monthly Servicing Fee and Servicer
Deficiency Amounts and Repossession Profits, if any;
(iv) to reimburse itself or a previous Servicer out of
Liquidation Proceeds (to the extent not previously retained from
Liquidation Proceeds prior to their deposit in the Certificate Account) in
respect of a Manufactured Home and out of payments by the related Obligor
(to the extent of payments expressly made by the Obligor to reimburse the
Servicer for insurance premiums) for expenses incurred by it in respect of
such Manufactured Home that are specified as being reimbursable to it
pursuant to Section 4.07, 4.09, or 4.13 or to a previous Servicer under
Section 7.07;
(v) to reimburse itself for any Nonrecoverable Advances and for
Monthly Advances in respect of Liquidated Contracts, in each case, in
accordance with Section 5.01(c);
(vi) after the Class A-1 Certificate Balance, Class A-2
Certificate Balance, Class A-3 Certificate Balance, Class A-4 Certificate
Balance, Class A-5 Certificate Balance, Class A-6 Certificate Balance,
Class A-7 Certificate Balance, Class M Certificate Balance, Class B-1
Certificate Balance, and Class B-2 Certificate Balance have been reduced to
zero, to reimburse the Servicer and the REMIC Administrator, pro rata, for
expenses incurred and reimbursable to the Servicer pursuant to Section 7.05
and to the REMIC Administrator pursuant to Section 4.17(c); and
(vii) to withdraw any amount deposited in the Certificate
Account that was not required to be deposited therein (including any
collections on the Contracts that, pursuant to Section 2.01(a), are not
part of the Trust Fund).
Since, in connection with withdrawals pursuant to clauses (i), (ii) and
(iv) of this Section 5.03, the Servicer's entitlement thereto is limited to
collections or other recoveries on the related Contract, the Servicer shall keep
and maintain separate accounting, on a Contract by Contract basis, for the
purpose of justifying any withdrawal from the Certificate Account pursuant to
such clauses.
Section 5.04 MONTHLY REPORTS.
At least one Business Day prior to each Distribution Date, the Servicer
shall cause the Trustee, the Rating Agencies, each Contract Seller and the
Certificate Administrator to receive a Monthly Report, which report shall
include the following information with respect to the immediately following
Distribution Date:
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(a) the Class A-1 Distribution Amount for such Distribution Date;
(b) the amount of principal to be distributed to the Class A-1
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(c) the amount of interest to be distributed to Class A-1
Certificateholders on such Distribution Date (separately identifying any
Class A-1 Unpaid Interest Shortfall included in such distribution);
(d) the remaining Class A-1 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
(e) the Class A-2 Distribution Amount for such Distribution Date;
(f) the amount of principal to be distributed to the Class A-2
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(g) the amount of interest to be distributed to Class A-2
Certificateholders on such Distribution Date (separately identifying any
Class A-2 Unpaid Interest Shortfall included in such distribution);
(h) the remaining Class A-2 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
(i) the Class A-3 Distribution Amount for such Distribution Date;
(j) the amount of principal to be distributed to the Class A-3
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(k) the amount of interest to be distributed to Class A-3
Certificateholders on such Distribution Date (separately identifying any
Class A-3 Unpaid Interest Shortfall included in such distribution);
(l) the remaining Class A-3 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
(m) the Class A-4 Distribution Amount for such Distribution Date;
64
(n) the amount of principal to be distributed to the Class A-4
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(o) the amount of interest to be distributed to Class A-4
Certificateholders on such Distribution Date (separately identifying any
Class A-4 Unpaid Interest Shortfall included in such distribution);
(p) the remaining Class A-4 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
(q) the Class A-5 Distribution Amount for such Distribution Date;
(r) the amount of principal to be distributed to the Class A-5
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(s) the amount of interest to be distributed to Class A-5
Certificateholders on such Distribution Date (separately identifying any
Class A-5 Unpaid Interest Shortfall included in such distribution);
(t) the remaining Class A-5 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
(u) the Class A-6 Distribution Amount for such Distribution Date;
(v) the amount of principal to be distributed to the Class A-6
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(w) the amount of interest to be distributed to Class A-6
Certificateholders on such Distribution Date (separately identifying any
Class A-6 Unpaid Interest Shortfall included in such distribution);
(x) the remaining Class A-6 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
(y) the Class A-7 Distribution Amount for such Distribution Date;
(z) the amount of principal to be distributed to the Class A-7
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a)
65
through (e), inclusive, of the definition of Total Regular Principal Amount
and from the amount of clause (b) of the definition of Formula Principal
Distribution Amount;
(aa) the amount of interest to be distributed to Class A-7
Certificateholders on such Distribution Date (separately identifying any
Class A-7 Unpaid Interest Shortfall included in such distribution);
(bb) the remaining Class A-7 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
(cc) the Class M Distribution Amount for such Distribution Date;
(dd) the amount of principal to be distributed to the Class M
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(ee) the amount of interest to be distributed to Class M
Certificateholders on such Distribution Date (separately identifying any Class M
Unpaid Interest Shortfall included in such distribution);
(ff) the remaining Class M Certificate Balance after giving effect to
the payment of principal to be made on such Distribution Date (on which interest
will be calculated on the next succeeding Distribution Date);
(gg) the Class B-1 Distribution Amount for such Distribution Date;
(hh) the amount of principal to be distributed to the Class B-1
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(ii) the amount of interest to be distributed to Class B-1
Certificateholders on such Distribution Date (separately identifying any
Class B-1 Unpaid Interest Shortfall included in such distribution);
(jj) the remaining Class B-1 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
(kk) the Class B-2 Distribution Amount for such Distribution Date;
(ll) the amount of principal to be distributed to the Class B-2
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (e), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
66
(mm) the amount of interest to be distributed to Class B-2
Certificateholders on such Distribution Date (separately identifying any
Class B-2 Unpaid Interest Shortfall included in such distribution);
(nn) the remaining Class B-2 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
(oo) the total amount of Monthly Servicing Fee payable on such
Distribution Date, the amount of any reimbursement to the Servicer pursuant to
Section 7.05, and any Late Payment Fees, Extension Fees and assumption fees paid
during the prior Collection Period, and the amount of any other fees payable out
of the Trust Fund;
(pp) the number of and aggregate remaining principal balance of
Contracts with payments delinquent 31 to 59, 60 to 89, and 90 or more days,
respectively;
(qq) the number of Contracts that were repurchased or replaced by the
Contract Seller in accordance with Section 3.05 during the prior Collection
Period, identifying such Contracts and (i) the Repurchase Price of such
Contracts and (ii) the amount, if any, paid by the Contract Seller due to the
differences, if any, between the remaining principal balances of the replaced
Contracts and the Eligible Substitute Contracts;
(rr) the Pool Factor for the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates, Class A-5
Certificates, Class A-6 Certificates, Class A-7 Certificates, Class M
Certificates, Class B-1 Certificates and Class B-2 Certificates after giving
effect to the payment of principal to be made on such Distribution Date;
(ss) the aggregate principal balances of all Contracts that are not
Liquidated Contracts and in respect of which the related Manufactured Homes have
been repossessed or foreclosed upon;
(tt) the Aggregate Net Liquidation Losses through the Collection
Period immediately preceding such Distribution Date;
(uu) the balance, if any, in the Reserve Account (before and after
giving effect to the distributions on such Distribution Date);
(vv) the Reserve Account Draw Amount, if any, required to be paid for
such Distribution Date and any withdrawals made from the Reserve Account since
the last Distribution Date pursuant to Section 5.03;
(ww) the Average Thirty Day Delinquency Ratio and the Average Sixty
Day Delinquency Ratio for such Distribution Date;
(xx) the Cumulative Realized Losses (as a percentage of the Cut-Off
Date Pool Principal Balance) for such Distribution Date;
(yy) the Current Realized Loss Ratio for such Distribution Date;
67
(zz) the amount of any Monthly Advance and the Outstanding Amount
Advanced with respect to such Distribution Date;
(aaa) the amounts, if any, deposited into the Reserve Account for
such Distribution Date;
(bbb) the amount, if any, to be distributed to the Class R
Certificateholders;
(ccc) the weighted average Contract Rate for the Contract Pool for
the Collection Period immediately preceding the month of such Distribution Date;
(ddd) the number of Manufactured Homes currently held by the
Servicer due to repossessions and the aggregate principal balance of the related
defaulted Contracts;
(eee) the Pool Scheduled Principal Balance, expressed as a
percentage of the Cut-Off Date Pool Principal Balance; and
(fff) the aggregate of the Deficiency Amounts and Servicer
Deficiency Amounts received for the preceding Collection Period.
Copies of all Monthly Reports shall be provided by the Servicer to each
Rating Agency. Neither the Trustee nor the Certificate Administrator shall be
under any duty to recalculate or verify the information provided to it by the
Servicer. The Servicer shall deliver a written notice to the Trustee not later
than three Business Days next preceding a Distribution Date if it cannot provide
the Trustee and the Certificate Administrator with a Monthly Report for such
Distribution Date.
Section 5.05 CERTIFICATE OF SERVICING OFFICER.
Each Monthly Report pursuant to Section 5.04 shall be accompanied by a
certificate of a Servicing Officer substantially in the form of EXHIBIT F,
certifying the accuracy of the Monthly Report and that such officer is not aware
of the occurrence of an Event of Default or of an event that, with notice or
lapse of time or both, would become an Event of Default, or if such officer is
aware that such an event has occurred and is continuing, specifying the event
and its status.
Section 5.06 OTHER DATA.
In addition, the Servicer, on request of the Trustee or the Certificate
Administrator, shall furnish the Trustee or the Certificate Administrator (as
the case may be) such underlying data as may reasonably be requested.
Section 5.07 STATEMENTS TO CERTIFICATEHOLDERS.
Concurrently with each distribution to Certificateholders pursuant to this
Article V, the Trustee shall mail, or cause the Paying Agent to mail, to each
Certificateholder at the address appearing on the Certificate Register a
statement as of the related Distribution Date prepared by the Servicer setting
forth:
(1) the Class A-1 Distribution Amount for such Distribution
Date;
68
(2) the amount of principal to be distributed to the Class A-1
Certificateholders, separately stating the contribution thereto from each
of the amounts specified in clauses (a) through (e), inclusive, of the
definition of Total Regular Principal Amount and from the amount of clause
(b) of the definition of Formula Principal Distribution Amount;
(3) the amount of interest to be distributed to Class A-1
Certificateholders on such Distribution Date (separately identifying any
Class A-1 Unpaid Interest Shortfall included in such distribution);
(4) the remaining Class A-1 Certificate Balance after giving
effect to the payment of principal to be made on such Distribution Date (on
which interest will be calculated on the next succeeding Distribution
Date);
(5) the Class A-2 Distribution Amount for such Distribution
Date;
(6) the amount of principal to be distributed to the Class A-2
Certificateholders, separately stating the contribution thereto from each
of the amounts specified in clauses (a) through (e), inclusive, of the
definition of Total Regular Principal Amount and from the amount of clause
(b) of the definition of Formula Principal Distribution Amount;
(7) the amount of interest to be distributed to Class A-2
Certificateholders on such Distribution Date (separately identifying any
Class A-2 Unpaid Interest Shortfall included in such distribution);
(8) the remaining Class A-2 Certificate Balance after giving
effect to the payment of principal to be made on such Distribution Date (on
which interest will be calculated on the next succeeding Distribution
Date);
(9) the Class A-3 Distribution Amount for such Distribution
Date;
(10) the amount of principal to be distributed to the Class A-3
Certificateholders, separately stating the contribution thereto from each
of the amounts specified in clauses (a) through (e), inclusive, of the
definition of Total Regular Principal Amount and from the amount of clause
(b) of the definition of Formula Principal Distribution Amount;
(11) the amount of interest to be distributed to Class A-3
Certificateholders on such Distribution Date (separately identifying any
Class A-3 Unpaid Interest Shortfall included in such distribution);
(12) the remaining Class A-3 Certificate Balance after giving
effect to the payment of principal to be made on such Distribution Date (on
which interest will be calculated on the next succeeding Distribution
Date);
(13) the Class A-4 Distribution Amount for such Distribution
Date;
69
(14) the amount of principal to be distributed to the Class A-4
Certificateholders, separately stating the contribution thereto from each
of the amounts specified in clauses (a) through (e), inclusive, of the
definition of Total Regular Principal Amount and from the amount of clause
(b) of the definition of Formula Principal Distribution Amount;
(15) the amount of interest to be distributed to Class A-4
Certificateholders on such Distribution Date (separately identifying any
Class A-4 Unpaid Interest Shortfall included in such distribution);
(16) the remaining Class A-4 Certificate Balance after giving
effect to the payment of principal to be made on such Distribution Date (on
which interest will be calculated on the next succeeding Distribution
Date);
(17) the Class A-5 Distribution Amount for such Distribution
Date;
(18) the amount of principal to be distributed to the Class A-5
Certificateholders, separately stating the contribution thereto from each
of the amounts specified in clauses (a) through (e), inclusive, of the
definition of Total Regular Principal Amount and from the amount of clause
(b) of the definition of Formula Principal Distribution Amount;
(19) the amount of interest to be distributed to Class A-5
Certificateholders on such Distribution Date (separately identifying any
Class A-5 Unpaid Interest Shortfall included in such distribution);
(20) the remaining Class A-5 Certificate Balance after giving
effect to the payment of principal to be made on such Distribution Date (on
which interest will be calculated on the next succeeding Distribution
Date);
(21) the Class A-6 Distribution Amount for such Distribution
Date;
(22) the amount of principal to be distributed to the Class A-6
Certificateholders, separately stating the contribution thereto from each
of the amounts specified in clauses (a) through (e), inclusive, of the
definition of Total Regular Principal Amount and from the amount of clause
(b) of the definition of Formula Principal Distribution Amount;
(23) the amount of interest to be distributed to Class A-6
Certificateholders on such Distribution Date (separately identifying any
Class A-6 Unpaid Interest Shortfall included in such distribution);
(24) the remaining Class A-6 Certificate Balance after giving
effect to the payment of principal to be made on such Distribution Date (on
which interest will be calculated on the next succeeding Distribution
Date);
(25) the Class A-7 Distribution Amount for such Distribution
Date;
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(26) the amount of principal to be distributed to the Class A-7
Certificateholders, separately stating the contribution thereto from each
of the amounts specified in clauses (a) through (e), inclusive, of the
definition of Total Regular Principal Amount and from the amount of clause
(b) of the definition of Formula Principal Distribution Amount;
(27) the amount of interest to be distributed to Class A-7
Certificateholders on such Distribution Date (separately identifying any
Class A-7 Unpaid Interest Shortfall included in such distribution);
(28) the remaining Class A-7 Certificate Balance after giving
effect to the payment of principal to be made on such Distribution Date (on
which interest will be calculated on the next succeeding Distribution
Date);
(29) the Class M Distribution Amount for such Distribution Date;
(30) the amount of principal to be distributed to the Class M
Certificateholders, separately stating the contribution thereto from each
of the amounts specified in clauses (a) through (e), inclusive, of the
definition of Total Regular Principal Amount and from the amount of clause
(b) of the definition of Formula Principal Distribution Amount;
(31) the amount of interest to be distributed to Class M
Certificateholders on such Distribution Date (separately identifying any
Class M Unpaid Interest Shortfall included in such distribution);
(32) the remaining Class M Certificate Balance after giving
effect to the payment of principal to be made on such Distribution Date (on
which interest will be calculated on the next succeeding Distribution
Date);
(33) the Class B-1 Distribution Amount for such Distribution
Date;
(34) the amount of principal to be distributed to the Class B-1
Certificateholders, separately stating the contribution thereto from each
of the amounts specified in clauses (a) through (e), inclusive, of the
definition of Total Regular Principal Amount and from the amount of clause
(b) of the definition of Formula Principal Distribution Amount;
(35) the amount of interest to be distributed to Class B-1
Certificateholders on such Distribution Date (separately identifying any
Class B-1 Unpaid Interest Shortfall included in such distribution);
(36) the remaining Class B-1 Certificate Balance after giving
effect to the payment of principal to be made on such Distribution Date (on
which interest will be calculated on the next succeeding Distribution
Date);
(37) the Class B-2 Distribution Amount for such Distribution
Date;
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(38) the amount of principal to be distributed to the Class B-2
Certificateholders, separately stating the contribution thereto from each
of the amounts specified in clauses (a) through (e), inclusive, of the
definition of Total Regular Principal Amount and from the amount of clause
(b) of the definition of Formula Principal Distribution Amount;
(39) the amount of interest to be distributed to Class B-2
Certificateholders on such Distribution Date (separately identifying any
Class B-2 Unpaid Interest Shortfall included in such distribution);
(40) the remaining Class B-2 Certificate Balance after giving
effect to the payment of principal to be made on such Distribution Date (on
which interest will be calculated on the next succeeding Distribution
Date);
(41) the number and aggregate remaining principal balance of
Contracts that are delinquent 31 to 59 days, 60 to 89 days, and 90 or more
days, respectively;
(42) the amount of fees and expenses payable out of the Trust
Fund for such Collection Period;
(43) the percentage obtained by dividing the aggregate
Certificate Balances (after giving effect to the distributions on the
Certificates made on such Distribution Date) by the aggregate Initial
Certificate Balances;
(44) the balance in the Reserve Account, if any (before and after
giving effect to the distributions on such Distribution Date);
(45) the Reserve Account Draw Amount, if any, for such
Distribution Date and the amount thereof applied to interest and principal
on the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3, Class A-4, Class A-5, Class A-6,
Class A-7, Class M, Class B-1 and Class B-2 Certificates, stated
separately; and any withdrawals made from the Reserve Account since the
last Distribution Date pursuant to Section 5.03;
(46) the Average Thirty Day Delinquency Ratio and the Average
Sixty Day Delinquency Ratio for such Distribution Date;
(47) the Cumulative Realized Losses (as a percentage of the
Cut-Off Date Pool Principal Balance) for such Distribution Date;
(48) the Current Realized Loss Ratio for such Distribution Date;
(49) the amount of any Monthly Advance and the Outstanding Amount
Advanced with respect to such Distribution Date;
(50) the amounts, if any, to be distributed to the Reserve
Account for such Distribution Date; and
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(51) such other customary factual information as is available to
the Servicer as the Servicer deems necessary and can obtain reasonably from
its existing data base to enable Certificateholders to prepare their tax
returns.
In the case of information furnished pursuant to clauses (1) through (51)
above, the amounts shall be expressed as a dollar amount per Certificate with a
$1,000 denomination.
Within a reasonable period of time after the end of each calendar year,
subject to the next sentence, but in no event later than 90 days after the
end of such year, the Servicer shall prepare and furnish to the Trustee, the
Paying Agent and the Certificate Administrator, and the Trustee, promptly
upon receipt, shall furnish or cause the Paying Agent to furnish to each
Person who at any time during the calendar year was the Holder of a
Certificate, a statement containing the information set forth in clauses (2)
and (3) above, in the case of Class A-1 Certificateholders, (6) and (7)
above, in the case of Class A-2 Certificateholders, (10) and (11) above, in
the case of Class A-3 Certificateholders, (14) and (15) above, in the case of
Class A-4 Certificateholders, (18) and (19) above, in the case of Class A-5
Certificateholders, (22) and (23) above, in the case of Class A-6
Certificateholders, (26) and (27) above, in the case of Class A-7
Certificateholders, (30) and (31) above, in the case of Class M
Certificateholders, (34) and (35) above, in the case of Class B-1
Certificateholders and (38) and (39) above, in the case of Class B-2
Certificateholders, aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of
the Servicer shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Servicer
pursuant to any requirements of the Code as from time to time in force. On
each Distribution Date, the Servicer shall forward or cause to be forwarded
by mail to each Holder of a Class R Certificate, a copy of the Monthly Report
for such Distribution Date. The Servicer shall also forward or cause to be
forwarded by mail to each Holder of a Class R Certificate, a statement
setting forth such information as the Servicer deems necessary or appropriate.
Within a reasonable period of time after the end of each calendar year, the
Servicer shall furnish or cause to be furnished to each Person who at any time
during the calendar year was a Holder of a Class R Certificate a statement
containing the applicable distribution information provided pursuant to this
Section 5.07 aggregated for such calendar year or applicable portion thereof
during which such Person was a Holder of a Class R Certificate. Such obligation
of the Servicer shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Servicer pursuant
to any requirements of the Code. A Certificate Owner holding Certificates of a
Class representing in the aggregate at least 5% of the Percentage Interests of
such Class shall, upon written request to the Trustee certifying its beneficial
ownership of such Certificates, be entitled to receive copies of all reports
provided by the Trustee. Copies of all reports provided by the Trustee to the
Certificateholders shall also be provided to each Rating Agency.
Section 5.08 RESERVE ACCOUNT.
(a) On the Closing Date, the Trustee shall establish and maintain the
Reserve Account titled "[Trustee] in trust for registered holders of
BankAmerica Manufactured Housing Contract Trust V, Senior/Subordinate
Pass-Through Certificates, Series 1998-2" as part of the Trust Fund for the
benefit of the Certificateholders as described herein. The Contract Sellers
shall cause the
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Reserve Account to have an initial balance as $6,859,826 on or prior to the
Closing Date. To the extent funds on deposit in the Reserve Account fall
below the Reserve Account Cap, the Reserve Account will be replenished from
time to time in accordance with clause (ix) of Section 5.02(a). On each
Distribution Date, the Trustee, based upon information in the Monthly Report,
shall withdraw the Reserve Account Draw Amount, if any, from the Reserve
Account and deposit it in the Certificate Account. Any Reserve Account Draw
Amount shall be applied pursuant to Section 5.02. After giving effect to the
withdrawal of the Reserve Account Draw Amount, if any, for a Distribution
Date, the excess, if any, of the amount on deposit in the Reserve Account
over the Reserve Account Cap shall be distributed to the Class R
Certificateholders.
(b) Amounts held in the Reserve Account shall be invested by the
Trustee in Eligible Investments in the name of the Trustee, as Trustee,
maturing, or in the case of a money market fund redeemable (without premium
or penalty) not later than one Business Day prior to the next succeeding
Distribution Date (except that if such Eligible Investment is an obligation
of the institution that maintains the Reserve Account, then such Eligible
Investment shall mature, or in the case of a money market fund shall be
redeemed, not later than such Distribution Date) and shall not be sold or
disposed of prior to its maturity. All net income and gain, if any, from any
such investments in respect of a Distribution Date shall be paid to the
Holders of the Class R Certificates.
ARTICLE VI
THE CERTIFICATES
Section 6.01 THE CERTIFICATES.
The Certificates shall be substantially in the forms attached hereto as
EXHIBIT ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, EXHIBIT ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇ ▇-▇,
EXHIBIT ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, EXHIBIT B-10 and EXHIBIT C. The Class
A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class
M, Class B-1 and Class B-2 Certificates shall be issuable in registered form,
in the minimum dollar denominations, integral dollar multiples in excess
thereof (except that one Certificate in each Class may be issued in a
different amount which must be in excess of the applicable minimum dollar
denomination) and aggregate dollar denominations per Class as set forth in
the following table:
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Integral
Multiples in
Minimum Excess of Latest Scheduled Initial Certificate
Class Denomination Minimum Distribution Date Balance
------ ------------- ------------ ------------------ ------------------
A-1 $1,000 $1 October 10, 2000 $47,800,000.00
A-2 $1,000 $1 October 10, 2003 $79,000,000.00
A-3 $1,000 $1 November 10, 2005 $64,000,000.00
A-4 $1,000 $1 January 10, 2008 $78,000,000.00
A-5 $1,000 $1 April 10, 2009 $44,000,000.00
A-6 $1,000 $1 July 10, 2011 $69,000,000.00
A-7 $1,000 $1 November 10, 2019 $180,705,000.00
M $1,000 $1 August 10, 2023 $51,449,000.00
B-1 $1,000 $1 December 10, 2025 $41,159,000.00
B-2 $250,000 $1 November 10, 2028 $30,869,617.84
provided, that one Class B-2 Certificate will have a denomination
representing the remainder of the Initial Class B-2 Certificate Balance.
The Class R Certificate shall initially be issued with no principal
balance.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall
bind the Trustee, notwithstanding that such individuals or any of them have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such authentication
and delivery. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form set
forth as attached hereto executed by the Trustee by manual signature, and
such certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication. On the Closing Date, the Trustee shall
authenticate the Certificates to be issued at the written direction of the
Contract Sellers or any Affiliate thereof.
The Contract Sellers shall provide, or cause to be provided, to the
Trustee on a continuous basis, an adequate inventory of Certificates to
facilitate transfers.
Section 6.02 CERTIFICATE REGISTER; REGISTRATION OF TRANSFER AND EXCHANGE OF
CERTIFICATES.
(a) The Trustee shall maintain, or cause to be maintained, a
Certificate Register for the Trust Fund in which, subject to the provisions of
subsections (b) and (c) below and to such reasonable regulations as it may
prescribe, the Trustee shall provide for the registration of
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Certificates and of transfers and exchanges of Certificates as herein
provided. Upon surrender for registration of transfer of any Certificate,
the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class and
of like aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates are
so surrendered for exchange, the Trustee shall execute, authenticate, and
deliver the Certificates that the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange shall
be canceled and subsequently destroyed by the Trustee in accordance with the
Trustee's customary procedures.
(b) No Transfer of a Private Certificate shall be made unless such
Transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. In the event that a Transfer is to be made in reliance upon an exemption
from the Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
Transfer and such Certificateholder's prospective transferee, at no expense to
the Trustee, the Contract Sellers or the Servicer, shall be required to provide
to the Trustee, the Contract Sellers and the Servicer, an investment letter
substantially the forms set forth in EXHIBIT H (the "Transferor Certificate"),
with respect to the Class B-2 Certificates, and either EXHIBIT J (the
"Investment Letter") or EXHIBIT K (the "Rule 144A Letter") or as otherwise
acceptable to the Contract Sellers. In the event that such a Transfer is to be
made within two years from the date of the initial issuance of Certificates
pursuant hereto (other than a Transfer as to which the proposed transferee has
provided a Rule 144A Letter), there shall also be delivered to the Trustee, the
Contract Sellers and the Servicer an Opinion of Counsel that such Transfer may
be made pursuant to an exemption from the Securities Act and such state
securities laws, which Opinion of Counsel shall not be an expense of the
Contract Sellers, the Servicer or the Trustee. The Contract Sellers shall
provide to any Holder of Private Certificate and any prospective transferee
designated by any such Holder, information regarding the Certificates and the
Contracts and such other information as shall be necessary to satisfy the
condition to eligibility set forth in Rule 144A(d)(4) for Transfer of any
Private Certificate without registration thereof under the Securities Act
pursuant to the registration exemption provided by Rule 144A. The Trustee and
the Servicer shall cooperate with the Contract Sellers in providing the Rule
144A information referenced in the preceding sentence, including providing to
the Contract Sellers such information regarding the Certificates, the Contracts
and other matters regarding the Trust Fund as either Contract Sellers shall
reasonably request to meet its obligation under the preceding sentence. Each
Holder of a Private Certificate
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desiring to effect such Transfer shall, and does hereby agree to, indemnify
the Trustee, the Contract Sellers and the Servicer against any liability that
may result if the Transfer is not so exempt or is not made in accordance with
such federal and state laws.
No transfer of an ERISA Restricted Certificate will be made unless the
Trustee has received either (i) an Opinion of Counsel, at no expense to the
Trustee, the Contract Sellers or the Servicer, acceptable to and in form and
substance satisfactory to the Trustee, the Contract Sellers and the Servicer
with respect to the permissibility of such transfer under ERISA and Section
4975 of the Code and stating, among other things, that the transferee's
acquisition of such ERISA Restricted Certificate will not constitute or
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code and will not subject the Servicer, the Contract
Sellers or the Trustee to any obligation or liability in addition to those
undertaken in this Agreement or (ii) a representation letter from the
transferee, substantially in the form of paragraph 5 of Exhibit G (as to the
Class R Certificates) or Exhibit J or Exhibit K (as to the Class M, Class B-1
or Class B-2 Certificates).
(c) (i) Each Person who has or who acquires any Ownership Interest
in a Class R Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Trustee or its designee
under clause (iii)(A) below to deliver payments to a Person other than such
Person and to negotiate the terms of any mandatory sale under clause (iii)(B)
below and to execute all instruments of transfer and to do all other things
necessary in connection with any such sale. The rights of each Person
acquiring any Ownership Interest in a Class R Certificate are expressly
subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Class R Certificate, the Trustee shall require delivery to
it, and shall not register the Transfer of any Class R Certificate until
its receipt of, (I) an affidavit and (a "Transfer Affidavit," in the form
attached hereto as Exhibit G-1) from the proposed Transferee, representing
and warranting, among other things, that it is a Permitted Transferee, that
it is not acquiring its Ownership Interest in the Class R Certificate that
is the subject of the proposed Transfer as a nominee, trustee or agent for
any Person who is not a Permitted Transferee, that for so long as it
retains its Ownership Interest in a Class R Certificate, it will endeavor
to remain a Permitted Transferee, and that it has reviewed the provisions
of this Section 6.02(c) and agrees to be bound by them, and (II) a
certificate, in the form attached hereto as Exhibit G-2, from the Holder
wishing to transfer the Class R Certificate, representing and warranting,
among other things, that no purpose of the proposed Transfer is to impede
the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (B) above, if a Responsible Officer of the
Trustee who is assigned to this Agreement has actual knowledge that the
proposed Transferee is not a Permitted
77
Transferee, no Transfer of an Ownership Interest in a Class R Certificate
to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (x) to require a Transfer Affidavit from
any other Person to whom such Person attempts to transfer its Ownership
Interest in a Class R Certificate and (y) not to transfer its Ownership
Interest unless it provides a certificate to the Trustee in the form
attached hereto as Exhibit G-2.
(E) Each Person holding or acquiring an Ownership Interest in a
Class R Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of Temporary Treasury
Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Class R Certificate, if it is, or is holding an
Ownership Interest in a Class R Certificate on behalf of, a "pass-through
interest holder."
(ii) The Trustee will register the Transfer of any Class R
Certificate only if it shall have received the Transfer Affidavit, a
certificate of the Holder requesting such transfer in the form attached
hereto as Exhibit G-2. Transfers of the Class R Certificates to Non-United
States Persons and Disqualified Organizations (as defined in Section
860E(e)(5) of the Code) are prohibited.
(iii) (A) If any Disqualified Organization shall become a
holder of a Class R Certificate, then the last preceding Permitted Transferee
shall be restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of registration of such
Transfer of such Class R Certificate. If a Non-United States Person shall
become a holder of a Class R Certificate, then the last preceding United
States Person shall be restored, to the extent permitted by law, to all
rights and obligations as Holder thereof retroactive to the date of
registration of such transfer of such Class R Certificate. If a transfer of
a Class R Certificate is disregarded pursuant to the provisions of Treasury
Regulations Section 1.860E-1 or Section 1.860G-3, then the last preceding
Permitted Transferee shall be restored, to the extent permitted by law, to
all rights and obligations as Holder thereof retroactive to the date of
registration of such Transfer of such Class R Certificate. The Trustee shall
be under no liability to any Person for any registration of Transfer of a
Class R Certificate that is in fact not permitted by this Section 6.02(c) or
for making any payments due on such Certificate to the holder thereof or for
taking any other action with respect to such holder under the provisions of
this Agreement.
(B) If any purported Transferee shall become a Holder of a Class
R Certificate in violation of the restrictions in this Section 6.02(c) and
to the extent that the retroactive restoration of the rights of the Holder
of such Class R Certificate as described in clause (iii)(A) above shall be
invalid, illegal or unenforceable, then either the Servicer shall have the
right, without notice to the holder or any prior holder of such Class R
Certificate, to sell such Class R Certificate to a purchaser selected by
the Servicer on such terms as the Servicer may choose. Such purported
Transferee shall promptly endorse and deliver each Class R Certificate in
accordance with the instructions of the Servicer. Such purchaser may be
the Servicer itself or any Affiliate of the Servicer. The proceeds of such
sale, net of the commissions (which may include commissions payable to the
Servicer or
78
its Affiliates), expenses and taxes due, if any, will be remitted by the
Servicer to such purported Transferee. The terms and conditions of any
sale under this clause (iii)(B) shall be determined in the sole discretion
of the Servicer, and the Servicer shall not be liable to any Person having
an Ownership Interest in a Class R Certificate as a result of its exercise
of such discretion.
(iv) The Servicer, on behalf of the Trustee, shall use its
reasonable efforts to make available, upon written request from the Trustee,
all information necessary to compute any tax imposed (A) as a result of the
Transfer of an Ownership Interest in a Class R Certificate to any Person who
is a Disqualified Organization, including the information regarding "excess
inclusions" of such Class R Certificates required to be provided to the
Internal Revenue Service and certain Persons as described in Treasury
Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), and (B) as a result
of any regulated investment company, real estate investment trust, common
trust fund, partnership, trust, estate or organization described in Section
1381 of the Code that holds an Ownership Interest in a Class R Certificate
having as among its record holders at any time any Person who is a
Disqualified Organization. Reasonable compensation for providing such
information may be required by the Servicer from such Person.
(v) The provisions of this Section 6.02(c) set forth prior to this
clause (v) may be modified, added to or eliminated pursuant to Section 11.01,
provided that there shall have also been delivered to the Trustee the
following:
(A) written notification from each Rating Agency to the effect
that the modification, addition to or elimination of such provisions will
not cause such Rating Agency to downgrade its then-current ratings, if any,
of any Class of the Class A, Class M or Class B below the lower of the
then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency; and
(B) a certificate of the Servicer stating that the Servicer has
received an Opinion of Counsel, in form and substance satisfactory to the
Servicer, to the effect that such modification, addition to or absence of
such provisions will not cause Trust Fund to cease to qualify as a REMIC
and will not cause (x) the Trust Fund to be subject to an entity-level tax
caused by the Transfer of any Class R Certificate to a Person that is a
Disqualified Organization or (y) a Certificateholder or another Person to
be subject to a REMIC-related tax caused by the Transfer of a Class R
Certificate to a Person that is not a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 6.02 shall not be an expense of the Trust
Fund, the Trustee, the Contract Sellers or the Servicer.
Section 6.03 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (a) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate and of the ownership thereof and (b) there is delivered to
the Trustee and the Certificate Administrator, if any, such security or
indemnity as may be required by them to save each of them harmless, then, in the
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absence of notice to the Trustee that such Certificate has been acquired by a
bona fide purchaser, the Trustee shall execute, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like Class, tenor and Percentage Interest.
In connection with the issuance of any new Certificate under this Section
6.03, the Trustee may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected
therewith. Any replacement Certificate issued pursuant to this Section 6.03
shall constitute complete and indefeasible evidence of ownership in the Trust
Fund, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time. All Certificates surrendered to the
Trustee under the terms of this Section 6.03 shall be canceled and destroyed
by the Trustee in accordance with its standard procedures without liability
on its part.
Section 6.04 PERSONS DEEMED OWNERS.
The Servicer, the Trustee and any agent of the Servicer or the Trustee
may treat the person in whose name any Certificate is registered as the owner
of such Certificate for the purpose of receiving distributions as provided in
this Agreement and for all other purposes whatsoever, and neither the
Servicer, the Trustee nor any agent of the Servicer or the Trustee shall be
affected by any notice to the contrary.
Section 6.05 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication that such Certificateholders propose to transmit or if the
Contract Sellers or Servicer shall request such information in writing from
the Trustee, then the Trustee shall, within ten Business Days after the
receipt of such request, provide the Contract Sellers, the Servicer or such
Certificateholders at such recipients' expense the most recent list of the
Certificateholders of the Trust Fund held by the Trustee, if any. The
Contract Sellers and every Certificateholder, by receiving and holding a
Certificate, agree that the Trustee shall not be held accountable by reason
of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 6.06 GLOBAL CERTIFICATES.
The Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6,
Class A-7, Class M and Class B-1 Certificates, upon original issuance, shall
be issued in the form of one or more typewritten Certificates representing
the Global Certificates, to be delivered to the Depository by or on behalf of
the Contract Sellers. Such Global Certificates shall initially be registered
on the Certificate Register in the name of the Depository or its nominee, and
no Certificate Owner will receive a definitive certificate representing such
Certificate Owner's interest in such Certificates, except as provided in
Section 6.08. Unless and until definitive, fully registered Certificates
("Definitive Certificates") have been issued to the Certificate Owners of
such Certificates pursuant to Section 6.08:
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(a) the provisions of this Section shall be in full force and effect;
(b) either Contract Seller, the Servicer and the Trustee may treat
the Depository and the Depository Participants for all purposes as the
authorized representative of the respective Certificate Owners of such
Certificates and, in the case of distributions, with the Depository as the
authorized representative of the Depository Participants and the Certificate
Owners;
(c) registration of the Global Certificates may not be transferred by
the Trustee except to another Depository;
(d) the rights of the respective Certificate Owners of such
Certificates shall be exercised only through the Depository and the Depository
Participants and shall be limited to those established by law and agreements
between the Owners of such Certificates and the Depository and/or the Depository
Participants. Pursuant to the Depository Agreement, unless and until Definitive
Certificates are issued with respect to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3,
Class A-4, Class A-5, Class A-6, Class A-7, Class M and Class B-1 Certificates
pursuant to Section 6.08, the Depository will make book-entry transfers among
the Depository Participants and receive and transmit distributions of principal
and interest on the related Certificates to such Depository Participants;
(e) the Depository may collect its usual and customary fees, charges
and expenses from its Depository Participants;
(f) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants; and
(g) to the extent that the provisions of this Section conflict with
any other provisions of this Agreement, the provisions of this Section shall
control.
For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Certificateholders
evidencing a specified percentage of the Certificate Balance of a Class of
Certificates, such direction or consent may be given by Certificate Owners
(acting through the Depository and the Depository Participants) owning Global
Certificates evidencing the requisite percentage of the Certificate Balance or
the requisite Percentage Interests.
Section 6.07 NOTICES TO DEPOSITORY.
Whenever any notice or other communication is required to be given to
Certificateholders of any Class with respect to which Global Certificates have
been issued, unless and until Definitive Certificates shall have been issued to
the related Certificate Owners, the Trustee shall give all such notices and
communications to the Depository.
Section 6.08 DEFINITIVE CERTIFICATES.
If, after Global Certificates have been issued with respect to Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class M and
Class B-1 Certificates, (a) the Servicer advises the Trustee that the Depository
is no longer willing or able to discharge
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properly its responsibilities under the Depository Agreement with respect to
such Certificates and the Trustee or BAFSB is unable to locate a qualified
successor, (b) BAFSB, at its sole option, advises the Trustee that it elects
to terminate the book-entry system with respect to such Certificates through
the Depository or (c) after the occurrence and continuation of an Event of
Default, Certificate Owners of such Global Certificates having not less than
51% of the Voting Rights evidenced by the related Class advise the Trustee
and the Depository in writing through the Depository Participants that the
continuation of a book-entry system with respect to such Certificates through
the Depository (or its successor) is no longer in the best interests of the
Certificate Owners with respect to such Certificates, then the Trustee shall
notify all Certificate Owners of such Class of Certificates, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates for such Class to Certificate Owners requesting the
same. The Contract Sellers shall provide the Trustee with an adequate
inventory of certificates to facilitate the issuance and transfer of
Definitive Certificates. Upon surrender to the Trustee of any such
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration, the Trustee shall authenticate and deliver
such Definitive Certificates. Neither the Contract Sellers, the Servicer nor
the Trustee shall be liable for any delay in delivery of such instructions
and each may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of such Definitive Certificates, all
references herein to obligations imposed upon or to be performed by the
Depository shall be deemed to be imposed upon and performed by the Trustee,
to the extent applicable with respect to such Definitive Certificates and the
Trustee shall recognize the Holders of such Definitive Certificates as
Certificateholders hereunder.
ARTICLE VII
THE CONTRACT SELLERS AND THE SERVICER
Section 7.01 LIABILITIES TO OBLIGORS.
No liability to any Obligor under any of the Contracts arising out of any
act or omission to act of the Servicer in servicing the Contracts prior to the
Closing Date is intended to be assumed by the Contract Sellers, the Trustee, the
Certificate Administrator or the Certificateholders under or as a result of this
Agreement and the transactions contemplated hereby and, to the maximum extent
permitted and valid under mandatory provisions of law, the Contract Sellers, the
Trustee, the Certificate Administrator and the Certificateholders expressly
disclaim such assumption.
Section 7.02 SERVICER'S INDEMNITIES.
The Servicer shall defend and indemnify the Trust Fund, the Trustee, the
Certificate Administrator, the Certificate Registrar, the Paying Agent, the
Contract Sellers and the Certificateholders against any and all costs, expenses,
losses, damages, claims or liabilities, including reasonable fees and expenses
of counsel and expenses of litigation, arising from third party claims or
actions (including penalties or fees imposed by any governmental or regulatory
body or agency) in respect of any action taken by the Servicer with respect to
any Contract or Manufactured Home constituting a failure by the Servicer to
perform its obligations under this Agreement. This indemnity shall survive any
Event of Default (but a Servicer's obligations under this Section 7.02 shall not
relate to any actions of any subsequent Servicer after an Event of
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Default) and any payment of the amount owing under, or any repurchase by the
Contract Sellers of, any such Contract.
Section 7.03 OPERATION OF INDEMNITIES.
Indemnification under this Article VII shall include reasonable fees and
expenses of counsel and expenses of litigation. Any amounts received by the
Trustee from the Servicer pursuant to this Article VII shall be deposited in the
Certificate Account pursuant to Section 4.05. If the Servicer has made any
indemnity payments to the Trustee pursuant to this Article VII and the Trustee
thereafter collects any of such amounts from others, the Trustee will repay such
amounts collected to the Servicer, together with any interest collected thereon.
Section 7.04 MERGER OR CONSOLIDATION OF THE CONTRACT SELLERS OR THE
SERVICER.
The Contract Sellers and the Servicer will each keep in full effect their
existence, rights and franchises as a national banking association or federal
savings bank, as the case may be, and will obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Contracts and
to perform its duties under this Agreement.
Any Person into which the Contract Sellers or the Servicer may be merged or
consolidated, or any corporation or association resulting from any merger,
conversion or consolidation to which the Contract Sellers or the Servicer shall
be a party, or any Person succeeding to the business of the Contract Sellers or
the Servicer, shall be the successor of the Contract Sellers or the Servicer
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 or surviving Person to
the Servicer shall satisfy the requirements of Section 7.07 with respect to the
qualifications of a successor to the Servicer. The Contract Sellers and the
Servicer shall promptly notify each Rating Agency of any such merger to which it
is a party.
Section 7.05 LIMITATION ON LIABILITY OF THE CONTRACT SELLERS, THE
SERVICER AND OTHERS.
Neither the Contract Sellers, the Servicer nor any of their directors,
officers, employees or agents shall be under any liability to the Trustee or the
Certificateholders for any errors in judgment or any action taken or for
refraining from the taking of any action, pursuant to this Agreement; PROVIDED,
HOWEVER, that this provision shall not protect the Contract Sellers or any such
Person against any liability that would otherwise be imposed by reason of its
willful misconduct, or gross negligence; PROVIDED, FURTHER that this provision
shall not protect the Servicer or any such Person against any liability that
would otherwise be imposed by reason of its willful misconduct or gross
negligence. The Contract Sellers, the Servicer and any of their directors,
officers, employees or agents may rely on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. Neither the Contract Sellers nor the Servicer shall be under any
obligation to appear in, prosecute or defend any legal action which arises under
this Agreement (other than in connection with the enforcement of any Contract in
accordance with this Agreement) and which in its opinion may
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involve it in any expenses or liability; PROVIDED, HOWEVER, that the Servicer
may in its discretion undertake any such other legal action which it may deem
necessary or desirable in respect to this Agreement and the rights and duties
of the parties hereto. In such event, the legal expenses and costs of such
other legal action and any liability resulting therefrom shall be expenses,
costs and liabilities payable from the Certificate Account, and the Servicer
shall be entitled to be reimbursed therefor out of the Certificate Account as
provided by Section 5.03.
Section 7.06 ASSIGNMENT BY SERVICER.
Notwithstanding any provision to the contrary in this Agreement (i) without
the consent of the Trustee or any Certificateholder, the Servicer may, with the
prior written consent of the Contract Sellers, which consents shall not be
unreasonably withheld, assign its rights and delegate its duties and obligations
under this Agreement; PROVIDED that the Person accepting such assignment or
delegation shall be a Person which is satisfactory to the Contract Sellers, in
their respective sole judgment, shall be willing to service the Contracts, and
shall execute and deliver to the Contract Sellers an agreement, in form and
substance reasonably satisfactory to the Contract Sellers and the Trustee, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by the
Servicer under this Agreement; and FURTHER PROVIDED that each Rating Agency's
rating of any Class of the Certificates in effect immediately prior to such
assignment and delegation will not be withdrawn or reduced as a result of such
assignment and delegation, as evidenced by a letter from each Rating Agency. In
the case of any such assignment and delegation, the Servicer shall be released
from its obligations under this Agreement, except that the Servicer shall remain
liable for all liabilities and obligations incurred by it as Servicer hereunder
prior to the satisfaction of the conditions to such assignment and in
delegation.
Notwithstanding the foregoing, upon the completion of the sale by BAFSB of
its BankAmerica Housing Services division to GCC (or any Affiliate of GCC) and
upon the execution by GCC or any such Affiliate of an assignment in form and
substance reasonably satisfactory to the Contract Sellers and the delivery of
such assignment to the Contract Sellers and the Trustee, the rights, duties and
obligations of BAFSB as Servicer hereunder shall automatically be assigned to
GCC or such Affiliate and BAFSB shall have no further obligation as Servicer
hereunder from the date of such assignment. Such servicing assignment to GCC
shall not require the consent of any Rating Agency or any party other than the
Contract Sellers.
Section 7.07 SUCCESSOR TO THE SERVICER.
In connection with the termination of the Servicer's responsibilities and
duties under this Agreement pursuant to Section 8.01, the Trustee shall (i)
succeed to and assume all of the Servicer's responsibilities, rights, duties and
obligations under this Agreement (except the duty to pay and indemnify the
Trustee pursuant to Section 9.05 hereof), or (ii) with the consent of the
Contract Sellers, which consent shall not be unreasonably withheld, appoint a
successor which shall have a net worth of not less than $50,000,000 and shall
have serviced for at least one year prior to such appointment a portfolio of not
less than $100,000,000 principal balance of manufactured housing installment
sale contracts or installment loans and which shall succeed to all rights and
assume all of the responsibilities, duties and liabilities of the Servicer under
this Agreement prior to the termination of the Servicer's responsibilities,
duties and liabilities under
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this Agreement (except that the duty to pay and indemnify the Trustee
pursuant to Section 9.05 hereof shall be subject to negotiation at the time
of such appointment). If the Trustee has become the successor to the Servicer
in accordance with this Section 7.07, the Trustee may, if it shall be
unwilling to continue to so act, or shall, if it is unable to so act,
appoint, or petition a court of competent jurisdiction to appoint, a
successor satisfying the requirements set out in clause (ii) above. In
connection with any appointment of a successor Servicer, the Trustee may make
such arrangements for the compensation of such successor out of payments on
Contracts as it and such successor shall agree or such court shall determine;
PROVIDED, HOWEVER, that the Monthly Servicing Fee shall not be in excess of a
monthly amount equal to 1/12th of the product of 1% and the Pool Scheduled
Principal Balance for the Distribution Date in respect of which such
compensation is being paid without the consent of all of the
Certificateholders and notice to each Rating Agency. If the Servicer's
duties, responsibilities and liabilities under this Agreement should be
terminated pursuant to Section 7.06 or 8.01, the Servicer shall discharge
such duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement, shall cooperate with the Trustee and any successor Servicer in
effecting the termination of the Servicer's responsibilities and rights
hereunder, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The assignment by a
Servicer pursuant to Section 7.06 or removal of Servicer pursuant to Section
8.01 shall not become effective until a successor shall be appointed pursuant
to this Section 7.07 and shall in no event relieve the Contract Sellers of
liability pursuant to Section 3.05 for breach of the representations and
warranties made pursuant to Section 3.02 or 3.03. The Servicer being
terminated pursuant to Section 8.01 or Section 7.06 shall bear all costs of a
transfer of servicing therefrom, including but not limited to those of the
Trustee reasonably allocable to specific employees and overhead, legal fees
and expenses, and costs of amending the Agreement, if necessary.
Any successor appointed as provided herein shall execute, acknowledge and
deliver to the Servicer and to the Trustee an instrument accepting such
appointment, whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and liabilities of the
Servicer, with like effect as if originally named as a party to this Agreement
and the Certificates. Any assignment by or termination of the Servicer pursuant
to Section 7.06 or 8.01 or the termination of this Agreement pursuant to Section
10.01 shall not affect any claims that the Trustee may have against the Servicer
arising prior to any such termination or resignation.
The Servicer shall timely deliver to the successor the funds in the
Certificate Account and REO Account and all Contract Files, Land Home Contract
Files and related documents and statements held by it hereunder and the Servicer
shall account for all funds and shall execute and deliver such instruments and
do such other things as reasonably may be required to more fully and definitely
vest and confirm in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer. Without
limitation, the Trustee is authorized and empowered to execute and deliver on
behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments (including transfer instruments in respect of certificates
of title and financing statements relating to the Manufactured Homes), and to do
any and all acts or things necessary or appropriate to effect the purposes of
such notice of termination.
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Upon a successor's acceptance of appointment as such, the Trustee shall
notify in writing the Certificateholders and each Rating Agency of such
appointment.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01 EVENTS OF DEFAULT.
In case one or more of the following Events of Default shall occur and be
continuing, that is to say:
(a) any failure by the Servicer to make any deposit or payment, or to
remit to the Trustee any payment, required to be made under the terms of this
Agreement which continues unremedied for a period of five days after the date
upon which written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by the Trustee or the Contract Sellers or
to the Servicer, the Trustee and the Contract Sellers by the Holders of
Certificates evidencing Fractional Interests aggregating not less than 25%; or
(b) failure on the part of the Servicer duly to observe or perform in
any material respect any other of the covenants or agreements on the part of the
Servicer set forth in this Agreement, including the failure to deliver a Monthly
Report, which continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Servicer by the Trustee or the Contract Sellers or to the
Servicer, the Trustee and the Contract Sellers by the Holders of Certificates
evidencing Fractional Interests aggregating not less than 25%; or
(c) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar law
or appointing a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Servicer, and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or
(d) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings of or relating to the Servicer or
of or relating to all or substantially all of the Servicer's property; or
(e) the Servicer 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
take any corporate action in furtherance of the foregoing;
then, and in each and every such case, so long as such Event of Default shall
not have been cured or waived, the Trustee may, and, the Trustee shall at the
written direction of the Holders of Certificates evidencing Fractional Interests
aggregating not less than 51% by notice in writing to the Servicer, terminate
all the rights and obligations of the Servicer under this Agreement and in
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and to the Contracts and the proceeds thereof, except any responsibility for
its acts or omissions during its tenure as Servicer hereunder. The Trustee
shall send a copy of a notice of any Event of Default to each Rating Agency
and the Contract Sellers. 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 Contracts or otherwise, shall pass to and be
vested in the successor appointed pursuant to Section 7.07. Upon the
occurrence of an Event of Default which shall not have been remedied, the
Trustee may also pursue whatever rights it may have at law or in equity to
damages, including injunctive relief and specific performance. The Trustee
will have no obligation to take any action or institute, conduct or defend
any litigation under this Agreement at the request, order or direction of any
of the Certificateholders unless such Certificateholders have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which the Trustee may incur.
Section 8.02 WAIVER OF DEFAULTS.
The Holders of Certificates evidencing Fractional Interests aggregating not
less than 25% may waive any default by the Servicer in the performance of its
obligations hereunder and its consequences, except that a default in the making
of any required remittance to the Trustee for distribution on any of the
Certificates may be waived only by the affected Certificateholders. Upon any
such waiver of a past default, such default shall cease to exist, and any Event
of Default 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 thereon except to the extent
expressly so waived.
Section 8.03 TRUSTEE TO ACT, APPOINTMENT OF SUCCESSOR.
On and after the time the Servicer receives a notice of termination
pursuant to Section 8.01, the Trustee or its appointed agent shall be the
successor in all respects to the Servicer as provided in Section 7.07 hereof.
Notwithstanding the above, or anything in Section 7.07 to the contrary, the
Trustee, if it becomes Servicer pursuant to this Section, shall have no
responsibility or obligation (i) to repurchase or substitute any Contract, (ii)
for any representation or warranty of the Servicer hereunder, and (iii) for any
act or omission of either a predecessor or successor Servicer other than the
Trustee. The Trustee may conduct any activity required of it as Servicer
hereunder through an Affiliate or through an agent. Neither the Trustee nor any
other successor Servicer shall be deemed to be in default hereunder due to any
act or omission of a predecessor Servicer, including but not limited to failure
to timely deliver to the Trustee any Monthly Report, any funds required to be
deposited to the Trust Fund, or any breach of its duty to cooperate with a
transfer of servicing as required by Section 7.07.
Section 8.04 NOTIFICATION TO CERTIFICATEHOLDERS.
(a) Upon any such termination pursuant to Section 8.01, the Trustee
shall give prompt written notice thereof to the Contract Sellers, the
Certificateholders at their respective addresses appearing in the Certificate
Register and to each Rating Agency.
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(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Holders of Certificates notice of each
such Event of Default hereunder known to the Trustee, unless such Event of
Default shall have been cured or waived.
Section 8.05 EFFECT OF TRANSFER.
(a) After a transfer of servicing duties to a successor Servicer
pursuant to Section 7.04, 7.06, 7.07 or 8.01, the Trustee or the successor
Servicer may notify Obligors to make payments that are due under the Contracts
after the effective date of the transfer of servicing duties directly to the
successor Servicer.
(b) After the transfer of servicing duties to a successor Servicer
pursuant to Section 7.04, 7.06, 7.07 or 8.01, the replaced Servicer shall have
no further obligations with respect to the management, administration, servicing
or collection of the Contracts, but in the case of a transfer pursuant to
Section 7.07 or 8.01 shall remain liable for any liability arising from the
replaced Servicer's actions hereunder and shall remain entitled to any
compensation due the replaced Servicer that had already accrued prior to such
transfer.
(c) A transfer of servicing duties to a successor Servicer shall not
affect the rights and duties of the parties hereunder (including but not limited
to the indemnities of the Servicer pursuant to Article VII), other than those
relating to the management, administration, servicing or collection of the
Contracts.
Section 8.06 TRANSFER OF THE ACCOUNTS.
Notwithstanding the provisions of Section 8.01, if the Certificate Account
shall be maintained with the Servicer or an Affiliate of the Servicer and an
Event of Default shall occur and be continuing, the Servicer, after five days'
written notice from the Trustee, or in any event within ten days after the
occurrence of the Event of Default, shall establish a new account, which shall
be an Eligible Account, conforming with the requirements of this Agreement, at
the trust department of the Trustee or with a depository institution other than
the Servicer or an Affiliate of the Servicer, and shall promptly transfer all
funds in the Certificate Account to such new Certificate Account, which shall
thereafter be deemed the Certificate Account for the purposes hereof.
ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.01 DUTIES OF TRUSTEE.
The Trustee, prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have occurred, undertakes
to perform such duties and only such duties as are set forth specifically in
this Agreement. In case an Event of Default has occurred of which a Responsible
Officer has knowledge (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Agreement and use
the same degree of care and skill in their exercise as a prudent man would
exercise or use under the
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circumstances in the conduct of his own affairs, unless it is acting as
Servicer pursuant to Section 8.03 in which case it will use the same degree
of care and skill as the Servicer.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are required specifically to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own misconduct; PROVIDED, HOWEVER, that:
(i) Prior to the occurrence of an Event of Default, and after
the curing or waiver of all such Events of Default which may have occurred,
the duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may rely
conclusively, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to
the Trustee and conforming to the requirements of this Agreement;
(ii) The Trustee shall not be liable personally for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable personally with respect to
any action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of Certificates evidencing
Fractional Interests aggregating not less than 25% as to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Agreement.
None of the provisions contained in this Agreement shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties as Trustee hereunder or in the
exercise of any of its rights or powers if there is reasonable ground for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
The Trustee shall have no liability for any loss on any Eligible Investment
except and only to the extent that it is an Obligor thereon.
Section 9.02 CERTAIN MATTERS AFFECTING THE TRUSTEE.
Except as otherwise provided in Section 9.01:
(a) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate, certificate
of auditors or any other certificate,
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statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) The Trustee may consult with counsel, and any written advice of
its counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(c) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order or
direction of any of the Certificateholders pursuant to the provisions of this
Agreement, unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(d) The Trustee shall not be liable personally for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Agreement;
(e) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default which may have occurred,
the Trustee shall not be bound to make any investigation into the computations,
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, any Monthly Report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do by the
Holders of Certificates evidencing Fractional Interests aggregating not less
than 25%; PROVIDED, HOWEVER, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Agreement, the Trustee may require reasonable indemnity against such expense or
liability as a condition to such proceeding. The reasonable expense of every
such examination shall be paid by the Servicer, if an Event of Default shall
have occurred and is continuing, and otherwise by the Certificateholders
requesting the investigation;
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys; PROVIDED, HOWEVER, that any Affiliate of the Contract Sellers may
only perform ministerial or custodial duties hereunder as agent for the Trustee;
and
(g) The Trustee shall examine any directions, notices or other
communications received from the Servicer, the Contract Sellers or any
Certificateholder (or agent thereof) to determine if such directions, notices or
other communications appear on their face to have been made and to otherwise be
in accordance with the requirements of this Agreement. As long as the Trustee
has acted in good faith and has not been negligent in making determinations
required by this Section 9.02(g), the Trustee may conclusively rely on such
directions, notices or other communications and shall incur no liability
hereunder for complying with, or assuming the truth of the statements contained
in, any such direction, notice or other communication.
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Section 9.03 TRUSTEE NOT LIABLE FOR CERTIFICATES OR CONTRACTS.
The recitals contained herein and in the Certificates (other than the
authentication of the Certificates) shall be taken as the statements of the
Contract Sellers or the Servicer, as the case may be, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no representations
or warranties as to the validity or sufficiency of this Agreement, of the
Certificates (except that the Certificates shall be duly and validly
authenticated by it) or of any Contract or related document. The Trustee
shall not be accountable for the use or application by the Contract Sellers
or the Servicer of any of the Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Contract
Sellers or the Servicer in respect of the Contracts or deposited in or
withdrawn from the Certificate Account by the Contract Sellers or the
Servicer.
Section 9.04 TRUSTEE MAY OWN CERTIFICATES.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Certificates and may transact business with the other parties
hereto with the same rights it would have if it were not Trustee.
Section 9.05 SERVICER TO PAY FEES AND EXPENSES OF TRUSTEE, PAYING AGENT AND
CERTIFICATE OF ADMINISTRATOR.
The Servicer covenants and agrees to pay, from its own funds, to the
Trustee, the Paying Agent and the Certificate Administrator from time to
time, and the Trustee, the Paying Agent and the Certificate Administrator
shall each be entitled to, reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust) for all services rendered by it in the execution of the
trust hereby created and in the exercise and performance of any of the powers
and duties hereunder of the Trustee, and the Servicer will pay (out of its
own funds) or reimburse the Trustee, the Paying Agent and the Certificate
Administrator, to the extent requested by the Trustee, the Paying Agent or
the Certificate Administrator, as the case may be, for all reasonable
expenses, disbursements and advances incurred or made by the Trustee, the
Paying Agent or the Certificate Administrator, as the case may be, in
accordance with any of the provisions of this Agreement, and the reasonable
compensation and the expenses and disbursements of its counsel and of all
persons not regularly in its employ, and the expenses incurred by the Trustee
in connection with the appointment of an office or agency pursuant to
Section 9.11, except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Servicer also covenants and agrees to
indemnify (out of its own funds) the Trustee, the Paying Agent and the
Certificate Administrator for, and to hold each of them harmless against, any
loss, liability or expense incurred without negligence or bad faith on the
part of the Trustee, the Paying Agent or the Certificate Administrator, as
the case may be, arising out of or in connection with the acceptance or
administration of this trust and its duties hereunder, including the costs
and expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
The covenants in this Section 9.05 shall b for the benefit of the Trustee, the
Paying Agent and the Certificate Administrator in their respective capacities
as Trustee, Certificate Administrator, Paying Agent and Certificate Registrar
hereunder, and shall survive the termination of this Agreement.
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Section 9.06 ELIGIBILITY REQUIREMENTS FOR TRUSTEE.
There shall at all times be a Trustee hereunder which shall be qualified
to maintain an Eligible Account and shall be either (a) The First National
Bank of Chicago ("First National") or any other Person into which First
National is merged or consolidated or to which substantially all of the
properties and assets of First National are transferred as an entirety,
PROVIDED that such other Person has accepted appointment as Trustee under
this Agreement in accordance with this Article IX, and FURTHER PROVIDED that
such entity is not an Affiliate of the Contract Sellers, is authorized to
exercise corporate trust powers under the laws of the United States of
America, any State thereof or the District of Columbia and has all necessary
trust powers to perform its obligations hereunder, or (b) a corporation or
banking association organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000, and subject to supervision or examination
by Federal or State authority, and which is not an Affiliate of the Contract
Sellers; FURTHER PROVIDED that either (i) such entity has long-term debt
rated at least A3 by ▇▇▇▇▇'▇ or the equivalent by any nationally recognized
statistical rating organization, or (ii) each Rating Agency provides a letter
to the effect that such appointment will not affect the then current ratings
of the Certificates. If the corporation or banking association referred to
in clause (b) of the previous sentence publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section 9.06, the combined
capital and surplus of such corporation or banking association shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. In addition, the Trustee shall maintain an office
in New York. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 9.06, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article IX.
Section 9.07 RESIGNATION AND REMOVAL OF THE TRUSTEE.
The Trustee at any time may resign and be discharged from the trusts
hereby created by giving written notice thereof to the Contract Sellers, the
Servicer and each Rating Agency. Upon receiving such notice of resignation,
the Contract Sellers shall promptly appoint a successor trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within
30 days after the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 9.06 and shall fail to resign after written request
therefor by the Contract Sellers, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
the Contract Sellers may remove the Trustee and appoint a successor trustee
by written instrument, in duplicate, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee and
the Certificateholders.
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The Holders of Certificates evidencing Fractional Interests aggregating
not less than 50% may remove the Trustee at any time and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Certificateholders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to the Contract Sellers, one
complete set to the Trustee so removed and one complete set to the successor
so appointed.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 9.07 shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 9.08.
Section 9.08 SUCCESSOR TRUSTEE.
Any successor trustee appointed as provided in Section 9.07 shall
execute, acknowledge and deliver to the Contract Sellers and to its
predecessor trustee, with a copy to the Servicer, an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee and the appointment of such successor trustee shall
become effective, and such successor trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties
and obligations of its predecessor hereunder, with the like effect as if
originally named as trustee herein. The predecessor trustee shall execute
and deliver such instruments and do such other things as reasonably may be
required to more fully and certainly vest and confirm in the successor
trustee all such rights, powers, duties and obligations.
No successor trustee shall accept appointment as provided in this
Section 9.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 9.06.
Upon acceptance of appointment by a successor trustee as provided
in this Section 9.08, the Servicer shall mail notice of the succession of
such trustee hereunder to all Certificateholders at their addresses as shown
in the Certificate Register, to the Contract Sellers and each Rating Agency.
If the Servicer fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Contract Sellers.
Section 9.09 MERGER OR CONSOLIDATION OF TRUSTEE.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to the business of the Trustee, shall be the
successor of the Trustee hereunder, PROVIDED such corporation shall be
eligible under the provisions of Section 9.06, 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. Upon succession of
a successor trustee as provided in this Section 9.09, the successor Trustee
shall mail notice of the succession of such trustee hereunder to all
Certificateholders at their addresses as shown in the Certificate Register,
to the Servicer, the Contract Sellers and each Rating Agency.
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Section 9.10 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions hereof, at any time, for the
purpose of (i) meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing the same may be located at
the time, or (ii) meeting any legal requirements with respect to the holding
of the Contracts, the Contract Sellers and the Trustee acting jointly shall
have the power and shall execute and deliver all instruments to appoint one
or more Persons approved by the Trustee to act as co-trustee or co-trustees,
jointly with the Trustee, or separate trustee or separate trustees, of all or
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity, such title to the Trust Fund, or any part thereof, and, subject to
the other provisions of this Section 9.10, such powers, duties, obligations,
rights and trusts as the Contract Sellers and the Trustee may consider
necessary or desirable. If either of the Contract Sellers shall not have
joined in such appointment within 15 days after the receipt by it of a
request so to do, or in case an Event of Default shall have occurred and be
continuing, the Trustee alone (or with one consenting Seller) shall have the
power to make such appointment. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee
under Section 9.06 hereunder, and no notice to Certificateholders of the
appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 9.08 hereof.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 9.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that, under any law of any jurisdiction in
which any particular act or acts are to be performed or under any regulation
applicable to any of the Contracts (whether as Trustee hereunder or as
successor to the Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or
any portion thereof in any such jurisdiction) shall be exercised and
performed by such separate trustee or co-trustee at the direction of the
Trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article IX. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee.
Any separate trustee or co-trustee may, at any time, appoint the Trustee
its agent or attorney-in-fact, with full power and authority, to the extent
not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee. Nothing in this Section 9.10
shall relieve the Trustee of its duties, obligations or liabilities under
this Agreement.
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Section 9.11 APPOINTMENT OF OFFICE OR AGENCY.
The Trustee will appoint an office or agency in the City of New York
where Certificates may be surrendered for registration of transfer or
exchange. The Trustee initially designates Chicago Trust Company of New York,
located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, for such purpose. The
Certificate Register will be kept in Chicago, Illinois at the offices of the
Certificate Registrar located at the Corporate Trust Office and may be kept
in an electronic form capable of printing out a hard copy of the Certificate
Register. The Trustee will maintain an office at the address stated in
Section 11.05 hereof where notices and demands to or upon the Trustee in
respect of the Certificates may be served. The Trustee will give prompt
written notice to Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
Section 9.12 CERTIFICATE ADMINISTRATOR.
The Trustee may, from time to time, appoint a Certificate Administrator
for the purpose of performing, as the Trustee's agent, those duties hereunder
that are specifically designated herein as performable by the Certificate
Administrator; PROVIDED, HOWEVER, that the Certificate Administrator shall at
all times satisfy the eligibility requirements of a Trustee set forth in
Section 9.06. As of the Closing Date, the Trustee shall be the Certificate
Administrator unless and until the Trustee appoints a successor Certificate
Administrator. In performing its duties hereunder, the Certificate
Administrator (if not the Trustee) shall have the benefit of the provisions
of this Agreement to the same extent that the Trustee would have the benefit
of such provisions if the Trustee were itself performing such duties. The
Certificate Administrator (including the Trustee solely in its capacity as
Certificate Administrator) shall not have any fiduciary responsibility to the
Contract Sellers, the Servicer or the Certificateholders except when acting
as Paying Agent. Additionally, the Certificate Administrator shall be
entitled to rely upon all directions, calculations and other information
received by the Contract Sellers, the Trustee or the Servicer without any
duty to independently verify such directions, calculations or other
information.
Section 9.13 APPOINTMENT OF PAYING AGENT.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders pursuant to Section 5.02 and payments
pursuant to 3.17 and 9.01(c). Any Paying Agent or its parent company so
appointed either shall be a bank or trust company and shall have a rating
acceptable to each Rating Agency. In the event of any such appointment, on or
prior to each Distribution Date, the Trustee shall deposit or cause to be
deposited with the Paying Agent, from amounts in the Certificate Account, a
sum sufficient to make the payments to Certificateholders in the amounts and
in the manner provided for in Section 5.02, such sum to be held in trust for
the benefit of the Certificateholders. The Trustee is hereby initially
appointed as Paying Agent.
In performing its duties hereunder, the Paying Agent shall have the
benefit of the provisions of this Agreement to the same extent that the
Trustee would have the benefit of such provisions if the Trustee were itself
performing such duties. Additionally, the Paying Agent shall be entitled to
rely upon all information received from the Servicer without any duty to
independently verify or recalculate any such information.
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The Trustee shall cause the Paying Agent to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee
that such Paying Agent is at all times acting as agent for the Trustee and
such Paying Agent will hold all sums held by it for the payment to
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders.
ARTICLE X
TERMINATION
Section 10.01 TERMINATION.
(a) The respective obligations and responsibilities of the Contract
Sellers, the Servicer (except as to Section 9.05) and the Trustee shall
terminate upon the earlier of: (i) the final payment or other liquidation (or
any advance with respect thereto) of the last Contract or the disposition of all
property acquired upon repossession of any Contract and the remittance of all
funds due hereunder; (ii) at the option of the Servicer, on any Distribution
Date after the first Distribution Date on which the Pool Scheduled Principal
Balance is less than 10% of the Cut-Off Date Pool Principal Balance and subject
to the prior consummation of the Termination Auction as contemplated pursuant to
Section 10.01(b) below, upon the purchase by the Servicer of the Outstanding
Contracts at a price equal to the greater of (a) the sum of (x) 100% of the
Scheduled Principal Balance of each Contract (other than any Contract as to
which the related Manufactured Home has been acquired and not yet disposed of
and whose fair market value is included pursuant to Clause (y) below) as of the
final Distribution Date, and (y) the fair market value of such acquired property
(as determined by the Servicer as of the close of business on the third Business
Day next preceding the date upon which notice of any such termination is
furnished to Certificateholders pursuant to Section 10.01(c)(i)), and (b) the
aggregate fair market value (as determined by the Servicer as of the close of
business on such third Business Day) of all the assets in the Trust Fund, plus,
in the case of both clause (a) and clause (b), an amount sufficient to pay any
Class A-1 Unpaid Interest Shortfall, Class A-2 Unpaid Interest Shortfall,
Class A-3 Unpaid Interest Shortfall, Class A-4 Unpaid Interest Shortfall,
Class A-5 Unpaid Interest Shortfall, Class A-6 Unpaid Interest Shortfall,
Class A-7 Unpaid Interest Shortfall, Class M Unpaid Interest Shortfall,
Class B-1 Unpaid Interest Shortfall and any Class B-2 Unpaid Interest Shortfall
and the remittance of all funds due hereunder; PROVIDED, that the purchase
price of such Contracts shall in no event be less than the Minimum Termination
Amount (without regard to amounts on deposit in the Reserve Account) as of the
Distribution Date on which the Servicer purchases such Contracts; or (iii) the
sale of all Contracts that remain outstanding, pursuant to a Termination Auction
as contemplated by Section 10.01(b) below and the remittance of all funds due
hereunder. Notwithstanding anything herein to the contrary, in no event shall
the trust created hereby continue beyond the expiration of 21 years from the
death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late
ambassador of the United States to the court of St. ▇▇▇▇▇, living on the date
hereof.
(b) TERMINATION AUCTION. The Servicer shall provide written notice
to the Trustee of the occurrence of the Distribution Date as of which the Pool
Scheduled Principal Balance is less than 10% of the Cut-Off Date Pool Principal
Balance within three Business Days following such Distribution Date. Thereupon,
the Trustee shall in accordance with the procedures and schedule
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set forth in EXHIBIT L hereto (the "Auction Procedures"), make a commercially
reasonable effort to sell at fair market value in a commercially reasonable
manner and upon commercially reasonable terms but subject to the earlier
purchase by the Servicer of the Outstanding Contracts as provided in Section
10.01(a) above, by conducting an auction (the "Termination Auction") of the
Contracts remaining in the Trust Fund in order to effect a termination of the
Trust Fund on a date selected by the Trustee (the "Auction Date"), but in any
case within ninety days following the Distribution Date as of which the Pool
Scheduled Principal Balance is less than 10% of the Cut-Off Date Pool
Principal Balance. Either Contract Seller (and the Servicer if BAFSB is not
the Servicer) may, but shall not be required to, bid at the Termination
Auction. The Trustee shall be entitled to retain counsel of its choice to
represent it in the Termination Auction, and the fees and expenses of such
counsel shall be paid by the Contract Sellers. The Trustee shall sell and
transfer the Contracts to the highest bidder therefor at the Termination
Auction provided that:
(1) the Termination Auction has been conducted in accordance
with the Auction Procedures;
(2) the Trustee has received good faith bids for the Contracts
from at least two prospective purchasers that are considered by the
Trustee, in its sole discretion, to be competitive participants in the
market for Manufactured housing installment sale contracts; PROVIDED, that
at least one of such prospective purchasers shall not be an Affiliate of
either of the Contract Sellers;
(3) a financial advisor selected by the Trustee, the fees of
whom shall be an expense of the Contract Sellers, as advisor to the Trustee
(in such capacity, the "Advisor"), shall have advised the Trustee in
writing that at least two of such bidders are participants in the market
for manufactured housing retail installment sale contracts and are willing
and able to purchase the Contracts (the Trustee may in its discretion
select itself or an affiliate thereof as Advisor);
(4) the highest bid in respect of the Contracts is not less than
the aggregate fair market value of the Contracts (as determined by the
Trustee in its sole discretion);
(5) any bid submitted by a Contract Seller or any Affiliate of
either Contract Seller shall be independently verified and represented in
writing by a qualified independent third party evaluator (which may include
the Advisor or an investment banking firm) selected by the Trustee and may
only be considered if such evaluator determines that the bid reasonably
represents the fair market value of the Contracts;
(6) the highest bid would result in proceeds from the sale of
the Contracts which will be at least equal to the Minimum Termination
Amount (without regard to amounts on deposit in the Reserve Account);
(7) such sale and consequent termination of the Trust Fund must
constitute a "qualified liquidation" of the Trust Fund under Section 860F
of the Code, including the requirement that the proceeds of such qualified
liquidation are credited or distributed to the holders of regular residual
interests within 90 days from the date upon which the Trust
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Fund adopts a plan of complete liquidation (the Trustee may, in its
discretion, require that the purchaser of such Contracts provide an
Opinion of Counsel to that effect); and
(8) the terms of the Termination Auction must be made available
to all bidders and must stipulate that the Servicer be retained to service
the Contracts on terms substantially similar to those in this Agreement.
Provided that all of the conditions set forth in clauses (1) through (8)
have been met, the Trustee shall sell and transfer the Contracts, without
representation, warranty or recourse of any kind whatsoever, to such highest
bidder in accordance with and upon completion of the Auction Procedures. The
Trustee shall deposit the purchase price for the Contracts in the Certificate
Account at least one Business Day prior to the fourth Distribution Date
following the Distribution Date as of which the Pool Scheduled Principal Balance
is less than 10% of the Cut-Off Date Pool Principal Balance. The provisions of
subsections (c) and (d) of this Section 10.01 also shall apply with respect to
any Termination Auction. In the event that any of such conditions are not met
or such highest bidder fails or refuses to comply with any of the Auction
Procedures, the Trustee shall decline to consummate such sale and transfer. In
such case the Termination Auction shall be concluded and the Trustee shall be
under no further duty to solicit bids for or otherwise to attempt to sell the
Contracts.
(c) (i) Notice of any termination, specifying the Distribution Date
upon which all Certificateholders may surrender their Certificates to the
Trustee for payment and cancellation, shall be given promptly by the Servicer by
letter to the Certificateholders, the Trustee, the Contract Sellers and each
Rating Agency mailed no later than the 10th day of the month next preceding the
month of such final distribution, specifying (i) the Distribution Date upon
which final payment on the Certificates will be made upon presentation and
surrender of Certificates at the office or agency of the Trustee therein
designated, (ii) the amount of any such final payment, and (iii) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Certificates at the
office or agency of the Trustee therein specified. After giving such notice,
the Trustee shall not register the transfer or exchange of any Certificates. If
such notice is given in connection with the Servicer's election to purchase, the
Servicer shall deposit in the Certificate Account on the Business Day prior to
the applicable Distribution Date the amount described in Section 10.01(a)(ii).
The amount so deposited shall not be invested.
(ii) Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed, from funds in the Certificate Account, to
Certificateholders, in proportion to their respective Percentage Interests,
an amount equal to (a) as to the Class A-1 Certificates, the Class A-1
Certificate Balance together with the Class A-1 Unpaid Interest Shortfall
and one month's interest at the Class A-1 Pass-Through Rate on the
Class A-1 Certificate Balance, (b) as to the Class A-2 Certificates, the
Class A-2 Certificate Balance together with the Class A-2 Unpaid Interest
Shortfall and one month's
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interest at the Class A-2 Pass-Through Rate on the Class A-2 Certificate
Balance, (c) as to the Class A-3 Certificates, the Class A-3 Certificate
Balance together with the Class A-3 Unpaid Interest Shortfall and one
month's interest at the Class A-3 Pass-Through Rate on the Class A-3
Certificate Balance, (d) as to the Class A-4 Certificates, the Class A-4
Certificate Balance together with the Class A-4 Unpaid Interest
Shortfall and one month's interest at the Class A-4 Pass-Through Rate on
the Class A-4 Certificate Balance, (e) as to the Class A-5 Certificates,
the Class A-5 Certificate Balance together with the Class A-5 Unpaid
Interest Shortfall and one month's interest at the Class A-5
Pass-Through Rate on the Class A-5 Certificate Balance (f), as to the
Class A-6 Certificates, the Class A-6 Certificate Balance together with
the Class A-6 Unpaid Interest Shortfall and one month's interest at the
Class A-6 Pass-Through Rate on the Class A-6 Certificate Balance, (g) as
to the Class A-7 Certificates, the Class A-7 Certificate Balance
together with the Class A-7 Unpaid Interest Shortfall and one month's
interest at the Class A-7 Pass-Through Rate on the Class A-7 Certificate
Balance, (h) as to the Class M Certificates, the Class M Certificate
Balance together with the Class M Unpaid Interest Shortfall and one
month's interest at the Class M Pass-Through Rate on the Class M
Certificate Balance, (i) as to the Class B-1 Certificates, the Class B-1
Certificate Balance together with the Class B-1 Unpaid Interest
Shortfall and one month's interest at the Class B-1 Pass-Through Rate on
the Class B-1 Certificate Balance and (j) as to the Class B-2
Certificates, the Class B-2 Certificate Balance together with the Class
B-2 Unpaid Interest Shortfall and one month's interest at the Class B-2
Pass-Through Rate on the Class B-2 Certificate Balance.
(iii) Upon such termination, any amounts remaining in the
Certificate Account and the Reserve Account (other than amounts retained to
meet claims) shall be paid to the Class R Certificateholders. Following
such final deposit, the Servicer shall prepare and the Trustee shall
execute all assignments, endorsements and other instruments necessary to
effectuate such transfer. The distribution on the final Distribution Date
shall be in lieu of the distribution otherwise required to be made on such
Distribution Date in respect of the Certificates and the Class R
Certificate.
(d) If any Certificateholder does not surrender its Certificate for
cancellation by the final Distribution Date specified in the written notice
required in Section 10.01(c)(i), any amounts retained in the Certificate Account
that are owed to such Certificateholder shall be withdrawn from the Certificate
Account and held in an escrow account with the Trustee pending distribution
pursuant to this Section 10.01(d). Any amounts so held shall not be invested.
The Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within two years after the
second notice all the Certificates shall not have been surrendered for
cancellation, the Trustee shall so notify the Contract Sellers and the Contract
Sellers may take appropriate steps, or may appoint an agent to take appropriate
and reasonable steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of, and
only to the extent of, the funds and other assets which remain in trust
hereunder.
Upon any termination pursuant to the exercise of the purchase option
contained in Section 10.01(a)(ii), the consummation of a sale pursuant to a
Termination Auction or otherwise, the Trust Fund shall be terminated in
accordance with the following additional requirements, unless the Trustee has
received an Opinion of Counsel to the effect that the failure of the Trust Fund
to comply with the requirements of this Section 10.01 will not (i) result in the
imposition of taxes on "prohibited transactions" of the Trust Fund as described
in Section 860F of the Code, (ii) cause the Trust Fund to fail to qualify as a
REMIC at any time that any Certificates are outstanding, or
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(iii) result in the imposition of taxes on contributions of additional
assets to the Trust Fund under Section 860G(d) of the Code:
(i) Within 90 days prior to the final Distribution Date set
forth in the notice given by the Servicer or the Trustee under this Section
10.01, the Holders of the Class R Certificates shall adopt a plan of
complete liquidation of the Trust Fund;
(ii) At or after the time of adoption of such a plan of complete
liquidation and at or prior to the final Distribution Date, the Servicer as
agent of the Trustee shall sell all of the assets of the Trust Fund to the
purchaser thereof (which may be the Servicer) for cash (other than assets
that will be converted to cash prior to the final Distribution Date); and
(iii) At or after the time of adoption of such a plan of complete
liquidation and at or prior to the final Distribution Date, the Trustee
shall credit or distribute all proceeds of the liquidation (plus the cash),
less assets retained to meet claims, to the Certificateholders.
By its acceptance of a Class R Certificate, each Holder thereof hereby agrees to
adopt such a plan of complete liquidation upon the written request of the
Servicer and to take such other action in connection therewith as may be
reasonably requested by the Contract Sellers.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 AMENDMENT.
This Agreement may be amended from time to time by the Contract Sellers,
the Servicer and the Trustee without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions herein, (iii) to add to the duties or obligations of the Servicer,
(iv) to obtain a rating from a nationally recognized rating agency or to
maintain or improve the ratings of any Class of Certificates by each Rating
Agency (it being understood that after obtaining ratings for the Certificates
from ▇▇▇▇▇'▇ and Fitch, none of the Trustee, the Contract Sellers or the
Servicer is obligated to obtain, maintain or improve any rating assigned to the
Certificates) or (v) to make such other provisions with respect to matters or
questions arising under this Agreement, as shall not be inconsistent with any
other provisions herein; PROVIDED that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder. Notwithstanding the foregoing, without the consent of the
Certificateholders, the Trustee, the Contract Sellers and the Servicer may at
any time and from time to time amend this Agreement to modify, eliminate or add
to any of its provisions to such extent as shall be necessary or appropriate to
maintain the qualification of the Trust Fund as a REMIC under the Code or to
avoid or minimize the risk of the imposition of any tax on the Trust Fund
pursuant to the Code that would be a claim against the Trust Fund at any time
prior to the final redemption of the Certificates, provided that the Trustee has
been provided an Opinion of Counsel, which opinion shall be an expense of the
party requesting such opinion but in any case
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shall not be an expense of the Trustee, to the effect that such action is
necessary or appropriate to maintain such qualification or to avoid or
minimize the risk of the imposition of such a tax.
This Agreement may also be amended from time to time by the Contract
Sellers, the Servicer and the Trustee with the consent of the Holders of a
Majority In Interest of each Class of Regular Certificates affected thereby
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; PROVIDED, HOWEVER, that no
such amendment shall (i) reduce in any manner the amount of, or delay the
timing of, payments required to be distributed on any Certificate without the
consent of the Holder of such Certificate, (ii) adversely affect in any
material respect the interests of the Holders of any Class of Certificates in
a manner other than as described in (i), without the consent of the Holders
of Certificates of such Class evidencing, as to such Class, Percentage
Interests aggregating 66% or (iii) reduce the aforesaid percentages of
Certificates the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all such Certificates then
outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee shall
not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel, which opinion shall be an expense of the party
requesting such amendment but in any case shall not be an expense of the
Trustee, to the effect that such amendment will not cause the imposition of any
tax on the Trust Fund or the Certificateholders or cause the Trust Fund to fail
to qualify as a REMIC at any time that any Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee shall furnish written
notification of the substance of such amendment to each Certificateholder and
each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section 11.01 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel, satisfactory to the Trustee
that (i) such amendment is permitted and is not prohibited by this Agreement and
that all requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does not adversely affect in any material respect
the interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 11.01.
Section 11.02 RECORDATION OF AGREEMENT; COUNTERPARTS.
This Agreement is subject to recordation in all appropriate public offices
for real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Contracts are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected by the Servicer at its expense.
101
For the purpose of facilitating the recordation of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute but one and the same
instrument.
Section 11.03 GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 11.04 CALCULATIONS.
Except as otherwise provided in this Agreement, all Pass-Through Rate,
interest rate and basis point calculations under this Agreement will be made
with respect to each Class of Regular Certificates on the basis of a 360-day
year and twelve thirty-day months and will be carried out to at least three
decimal places. Interest on the Regular Certificates with respect to a
Distribution Date will accrue during the related Interest Accrual Period.
Section 11.05 NOTICES.
(a) The Trustee shall use its best efforts to promptly provide notice
to each Rating Agency with respect to each of the following of which it has
actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been
cured;
3. The resignation or termination of the Servicer or the
Trustee and the appointment of any successor or any assignment of this
Agreement pursuant to Section 7.06;
4. The repurchase or substitution of Contracts pursuant to
Section 3.05;
5. The final payment to Certificateholders;
6. A sale of any Class R Certificate; and
7. Any shortfalls arising from the failure of the Servicer to
advance as required pursuant to Section 5.01 hereof.
In addition, the Servicer shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section 5.07;
2. Each annual statement as to compliance described in
Section 4.20; and
102
3. Each annual independent public accountants' servicing
report described in Section 4.21.
(b) All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to (a) in
the case of the Contract Sellers: Bank of America National Trust and Savings
Association, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ or such other address as the Contract Sellers may
hereafter furnish to the Trustee and the Servicer (b) in the case of the
Servicer: Bank of America, FSB, c/o BankAmerica Housing Services, ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Manager, Investor
Servicing (or such other address as may be hereafter furnished to the
Contract Sellers and the Trustee by the Servicer in writing), with copies to
▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., Bank of America, National Trust and Savings Association,
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (c) in the case of the
Trustee, The First National Bank of Chicago, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ or such other
address as the Trustee may hereafter furnish to the Contract Sellers and the
Servicer; and (d) in the case of the Rating Agencies, (i) ▇▇▇▇▇'▇ Investors
Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and (ii) Fitch
IBCA, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate Register.
Section 11.06 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.07 ASSIGNMENT.
Notwithstanding anything to the contrary contained herein, except as
provided pursuant to Sections 7.04 and 7.06, this Agreement may not be assigned
by the Servicer without the prior written consent of the Trustee and the
Contract Sellers.
Section 11.08 LIMITATIONS ON RIGHTS OF CERTIFICATEHOLDERS.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the Trust
Fund, or otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
party by reason of any action taken by the parties to this Agreement pursuant to
any provision hereof.
103
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as
hereinbefore provided, and unless the Holders of Certificates evidencing not
less than 25% of the Voting Rights evidenced by the Certificates shall also
have made written request to the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs,
expenses, and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity
shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted
by each Certificateholder with every other Certificateholder and the Trustee,
that no one or more Holders of Certificates shall have any right in any
manner whatever by virtue or by availing itself or themselves of any
provisions of this Agreement to affect, disturb or prejudice the rights of
the Holders of any other of the Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder or to enforce any right
under this Agreement, except in the manner herein provided and for the common
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 11.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.09 INSPECTION AND AUDIT RIGHTS.
The Servicer agrees that, on reasonable prior notice, it will permit any
representative of the Contract Sellers or the Trustee during the Servicer's
normal business hours, to examine all the books of account, records, reports and
other papers of the Servicer relating to the Contracts, to make copies and
extracts therefrom, to cause such books to be audited by independent certified
public accountants selected by the Contract Sellers or the Trustee and to
discuss its affairs, finances and accounts relating to the Contracts with its
officers, employees and independent public accountants (and by this provision
the Servicer hereby authorizes such accountants to discuss with such
representative such affairs, finances and accounts), all at such reasonable
times and as often as may be reasonably requested. Any out-of-pocket expense
incident to the exercise by the Contract Sellers or the Trustee of any right
under this Section 11.09 shall be borne by the party requesting such inspection;
all other such expenses shall be borne by the Servicer.
Section 11.10 CERTIFICATES NONASSESSABLE AND FULLY PAID.
It is the intention of the Contract Sellers that Certificateholders shall
not be personally liable for obligations of the Trust Fund, that the interests
in the Trust Fund represented by the Certificates shall be nonassessable for any
reason whatsoever, and that the Certificates, upon due authentication thereof by
the Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 11.11 OFFICIAL RECORD.
The Contract Sellers agree that this Agreement is and shall remain at all
times prior to the time at which this Agreement terminates an official record of
BAFSB as referred to in Section 13(e) of the Federal Deposit Insurance Act, as
amended by 12 U.S.C. Section 1823(e). The
104
officer signing below on behalf of BAFSB represents that by so signing he or
she is an officer of BAFSB of the level of vice president or higher within
the meaning of the "Policy Statement Regarding Qualified Financial Contracts"
dated December 12, 1989 issued by the FDIC.
105
IN WITNESS WHEREOF, the Contract Sellers, the Servicer and the Trustee
have caused their names to be signed hereto by their respective officers
thereunto duly authorized as of the day and year first above written.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but solely as Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Contract Seller
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
BANK OF AMERICA, FSB,
as Servicer and Contract Seller
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Treasurer
▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ )
) ss.
COUNTY OF SAN FRANCISCO )
On /s/ June 22, 1998 before me, /s/ ▇▇▇▇▇ ▇▇▇▇▇, Notary
Public, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity and that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
/s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Notary Public
My Commission expires /s/ 10-23-98
[Notarial Seal]
STATE OF ILLINOIS )
) ss.
COUNTY OF ▇▇▇▇ )
On this __th day of June, 1998, before me, a notary public in and for
said State, appeared ▇▇▇▇▇ ▇▇▇▇▇▇▇, personally known to me on the basis of
satisfactory evidence to be a Vice President, of The First National Bank of
Chicago, a national banking association that executed the within instrument,
and also known to me to be the person who executed it on behalf of such
corporation, and acknowledged to me that such national banking association
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
Notary Public
My Commission expires /s/ 1/14/99
[Notarial Seal]
EXHIBIT INDEX
Exhibit A . . . . . . . .Contract Schedule
Exhibit B-1 . . . . . . .Form of Class A-1 Certificate
Exhibit B-2 . . . . . . .Form of Class A-2 Certificate
Exhibit B-3 . . . . . . .Form of Class A-3 Certificate
Exhibit B-4 . . . . . . .Form of Class A-4 Certificate
Exhibit B-5 . . . . . . .Form of Class A-5 Certificate
Exhibit B-6 . . . . . . .Form of Class A-6 Certificate
Exhibit B-7 . . . . . . .Form of Class A-7 Certificate
Exhibit B-8 . . . . . . .Form of Class M Certificate
Exhibit B-9 . . . . . . .Form of Class B-1 Certificate
Exhibit B-10 . . . . . . .Form of Class B-2 Certificate
Exhibit C . . . . . . . .Form of Reverse of Certificates
Exhibit D . . . . . . . .Class R Certificate
Exhibit E . . . . . . . .Form of Certificate Regarding Substitution of
Eligible Substitute Contract
Exhibit F . . . . . . . .Form of Certificate of Servicing Officer
Exhibit G-1 . . . . . . .Transfer Affidavit
Exhibit G-2 . . . . . . .Form of Transferor Certificate for Class R
Certificates
Exhibit H . . . . . . . .Form of Transferor Certificate for Class B-2
Certificates
Exhibit I . . . . . . . .Form of Depository Agreement
Exhibit J . . . . . . . .Form of Investment Letter and Form of ERISA
Representations
Exhibit K . . . . . . . .Form of Rule 144A Letter
Exhibit L . . . . . . . .Termination Auction Procedures
EXHIBIT B-1
CLASS A-1 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING
THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS _________, 19__.
ASSUMING THAT THE MORTGAGE LOANS PREPAY AT ____% OF THE STANDARD PREPAYMENT
ASSUMPTION (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT), [AND ASSUMING A
CONSTANT PASS-THROUGH RATE EQUAL TO THE INITIAL PASS-THROUGH RATE,] THIS
CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $_____ OF OID PER $1,000 OF
INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% AND THE
AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NOT MORE THAN
$______ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED USING
THE APPROXIMATE METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS
WILL PREPAY AT A RATE BASED ON THE STANDARD PREPAYMENT ASSUMPTION OR AT ANY
OTHER RATE OR AS TO THE CONSTANCY OF THE PASS-THROUGH RATE.]
Certificate No. : A-1-__
Date of Pooling and Servicing Agreement : June 1, 1998
Cut-off Date : May 31, 1998
First Distribution Date : July 10,1998
Exhibit B-1-1
Initial Certificate Balance of
this Certificate ("Denomination") : $__________
Initial Certificate Balance of all
Class A-1 Certificates : $47,800,000
Pass-Through Rate : 5.89%
Month of Last Scheduled
Distribution Date : October, 2000
CUSIP : 066-06T-AA9
Exhibit B-1-2
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST V
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1998-2
evidencing a percentage interest in any distributions allocable to the
Class A-1 Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and Bank of
America, FSB, each as Contract Seller (each a "Contract Seller" and
collectively the "Contract Sellers")
which manufactured housing contracts were originated or acquired by Bank of
America, FSB ("BAFSB") or Bank of America National Trust and Savings Association
("Bank of America") respectively, and are initially serviced by BAFSB, acting
through its division, BankAmerica Housing Services (the "Servicer").
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by either Contract Seller, the Servicer or
the Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class A-1
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Sellers. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement, dated as of June 1,
1998 (the "Agreement"), among the Contract Sellers, the Servicer, and The First
National Bank of Chicago, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class A-1 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day preceding such Distribution Date.
Distributions to the Holder of this Class A-1 Certificate shall be applied first
to interest and then to principal.
Exhibit B-1-3
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold Class A-1
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
----------- -------------
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but solely as Trustee
By
-------------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but solely as Trustee
By
-----------------------------------------
Authorized Signatory
Exhibit B-1-4
EXHIBIT B-2
CLASS A-2 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING
THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS _________, 19__.
ASSUMING THAT THE MORTGAGE LOANS PREPAY AT ____% OF THE STANDARD PREPAYMENT
ASSUMPTION (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT), [AND ASSUMING A
CONSTANT PASS-THROUGH RATE EQUAL TO THE INITIAL PASS-THROUGH RATE,] THIS
CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $_____ OF OID PER $1,000 OF
INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% AND THE
AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NOT MORE THAN
$______ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED USING
THE APPROXIMATE METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS
WILL PREPAY AT A RATE BASED ON THE STANDARD PREPAYMENT ASSUMPTION OR AT ANY
OTHER RATE OR AS TO THE CONSTANCY OF THE PASS-THROUGH RATE.]
Certificate No. : A-2-__
Date of Pooling and Servicing Agreement : June 1, 1998
Cut-off Date : May 31, 1998
First Distribution Date : July 10,1998
Exhibit B-2-1
Initial Certificate Balance of
this Certificate ("Denomination") : $__________
Initial Certificate Balance of all
Class A-2 Certificates : $79,000,000
Pass-Through Rate : 6.04%
Month of Last Scheduled
Distribution Date : October, 2003
CUSIP : 066-06T-AB7
Exhibit B-2-2
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST V
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1998-2
evidencing a percentage interest in any distributions allocable to the
Class A-2 Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and Bank of
America, FSB, each as Contract Seller (each a "Contract Seller" and
collectively the "Contract Sellers")
which manufactured housing contracts were originated or acquired by Bank of
America, FSB ("BAFSB") or Bank of America National Trust and Savings Association
("Bank of America") respectively, and are initially serviced by BAFSB, acting
through its division, BankAmerica Housing Services (the "Servicer").
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by either Contract Seller, the Servicer or
the Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class A-2
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Sellers. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement, dated as of June 1,
1998 (the "Agreement"), among the Contract Sellers, the Servicer, and The First
National Bank of Chicago, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class A-2 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day preceding such Distribution Date.
Distributions to the Holder of this Class A-2 Certificate shall be applied first
to interest and then to principal.
Exhibit B-2-3
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold Class A-2
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
----------- -------------
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but solely as Trustee
By
-------------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but solely as Trustee
By
-----------------------------------------
Authorized Signatory
Exhibit B-2-4
EXHIBIT B-3
CLASS A-3 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING
THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS _________, 19__.
ASSUMING THAT THE MORTGAGE LOANS PREPAY AT ____% OF THE STANDARD PREPAYMENT
ASSUMPTION (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT), [AND ASSUMING A
CONSTANT PASS-THROUGH RATE EQUAL TO THE INITIAL PASS-THROUGH RATE,] THIS
CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $_____ OF OID PER $1,000 OF
INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% AND THE
AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NOT MORE THAN
$______ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED USING
THE APPROXIMATE METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS
WILL PREPAY AT A RATE BASED ON THE STANDARD PREPAYMENT ASSUMPTION OR AT ANY
OTHER RATE OR AS TO THE CONSTANCY OF THE PASS-THROUGH RATE.]
Certificate No. : A-3-__
Date of Pooling and Servicing Agreement : June 1, 1998
Cut-off Date : May 31, 1998
First Distribution Date : July 10,1998
Exhibit B-3-1
Initial Certificate Balance of
this Certificate ("Denomination") : $__________
Initial Certificate Balance of all
Class A-3 Certificates : $64,000,000
Pass-Through Rate : 6.04%
Month of Last Scheduled
Distribution Date : November, 2005
CUSIP : 066-06T-AC5
Exhibit B-3-2
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST V
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1998-2
evidencing a percentage interest in any distributions allocable to the
Class A-3 Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and Bank of
America, FSB, each as Contract Seller (each a "Contract Seller" and
collectively the "Contract Sellers")
which manufactured housing contracts were originated or acquired by Bank of
America, FSB ("BAFSB") or Bank of America National Trust and Savings Association
("Bank of America") respectively, and are initially serviced by BAFSB, acting
through its division, BankAmerica Housing Services (the "Servicer").
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by either Contract Seller, the Servicer or
the Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class A-3
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Sellers. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement, dated as of June 1,
1998 (the "Agreement"), among the Contract Sellers, the Servicer, and The First
National Bank of Chicago, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class A-3 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day preceding such Distribution Date.
Distributions to the Holder of this Class A-3 Certificate shall be applied first
to interest and then to principal.
Exhibit B-3-3
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold Class A-3
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
----------- -------------
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but
solely as Trustee
By
---------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but solely as Trustee
By
-----------------------------------------
Authorized Signatory
Exhibit B-3-4
EXHIBIT B-4
CLASS A-4 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING
THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS _________, 19__.
ASSUMING THAT THE MORTGAGE LOANS PREPAY AT ____% OF THE STANDARD PREPAYMENT
ASSUMPTION (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT), [AND ASSUMING A
CONSTANT PASS-THROUGH RATE EQUAL TO THE INITIAL PASS-THROUGH RATE,] THIS
CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $_____ OF OID PER $1,000 OF
INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% AND THE
AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NOT MORE THAN
$______ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED USING
THE APPROXIMATE METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS
WILL PREPAY AT A RATE BASED ON THE STANDARD PREPAYMENT ASSUMPTION OR AT ANY
OTHER RATE OR AS TO THE CONSTANCY OF THE PASS-THROUGH RATE.]
Certificate No. : A-4-__
Date of Pooling and Servicing Agreement : June 1, 1998
Cut-off Date : May 31, 1998
First Distribution Date : July 10,1998
Exhibit B-4-1
Initial Certificate Balance of
this Certificate ("Denomination") : $__________
Initial Certificate Balance of all
Class A-4 Certificates : $78,000,000
Pass-Through Rate : 6.11%
Month of Last Scheduled
Distribution Date : January, 2008
CUSIP : 066-06T-AD3
Exhibit B-4-2
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST V
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1998-2
evidencing a percentage interest in any distributions allocable to the
Class A-4 Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and Bank of
America, FSB, each as Contract Seller (each a "Contract Seller" and
collectively the "Contract Sellers")
which manufactured housing contracts were originated or acquired by Bank of
America, FSB ("BAFSB") or Bank of America National Trust and Savings Association
("Bank of America") respectively, and are initially serviced by BAFSB, acting
through its division, BankAmerica Housing Services (the "Servicer").
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. Neither this Certificate
nor the Contracts are insured or guaranteed by either Contract Seller, the
Servicer or the Trustee referred to below or any of their respective
Affiliates or by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class A-4
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Sellers. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement, dated as of June 1,
1998 (the "Agreement"), among the Contract Sellers, the Servicer, and The First
National Bank of Chicago, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class A-4 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day preceding such Distribution Date.
Distributions to the Holder of this Class A-4 Certificate shall be applied first
to interest and then to principal.
Exhibit B-4-3
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall hold Class A-4 Certificates evidencing a Percentage Interest
aggregating 10% or more or, if not, by check mailed by first class mail to
the address of such Certificateholder appearing in the Certificate Register.
The final distribution on each Certificate will be made in like manner, but
only upon presentment and surrender of such Certificate at the Corporate
Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of
authentication hereon has been manually executed by an authorized officer of
the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:__________________________
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but
solely as Trustee
By
------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4 Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but solely as Trustee
By
------------------------------------
Authorized Signatory
Exhibit B-4-4
EXHIBIT B-5
CLASS A-5 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS _________, 19__. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT ____% OF THE STANDARD PREPAYMENT ASSUMPTION
(AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT), [AND ASSUMING A CONSTANT
PASS-THROUGH RATE EQUAL TO THE INITIAL PASS-THROUGH RATE,] THIS CERTIFICATE HAS
BEEN ISSUED WITH NO MORE THAN $_____ OF OID PER $1,000 OF INITIAL CERTIFICATE
PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NOT MORE THAN $______ PER
$1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED USING THE
APPROXIMATE METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
PREPAY AT A RATE BASED ON THE STANDARD PREPAYMENT ASSUMPTION OR AT ANY OTHER
RATE OR AS TO THE CONSTANCY OF THE PASS-THROUGH RATE.]
Certificate No. : A-5-__
Date of Pooling and Servicing Agreement : June 1, 1998
Cut-off Date : May 31, 1998
First Distribution Date : July 10,1998
Exhibit B-5-1
Initial Certificate Balance of
this Certificate ("Denomination") : $__________
Initial Certificate Balance of all
Class A-5 Certificates : $44,000,000
Pass-Through Rate : 6.20%
Month of Last Scheduled
Distribution Date : April, 2009
CUSIP : 066-06T-AE1
Exhibit B-5-2
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST V
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1998-2
evidencing a percentage interest in any distributions allocable to the
Class A-5 Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and Bank of
America, FSB, each as Contract Seller (each a "Contract Seller" and
collectively the "Contract Sellers")
which manufactured housing contracts were originated or acquired by Bank of
America, FSB ("BAFSB") or Bank of America National Trust and Savings Association
("Bank of America") respectively, and are initially serviced by BAFSB, acting
through its division, BankAmerica Housing Services (the "Servicer").
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by either Contract Seller, the Servicer or
the Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class A-5
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Sellers. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement, dated as of June 1,
1998 (the "Agreement"), among the Contract Sellers, the Servicer, and The First
National Bank of Chicago, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class A-5 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day preceding such Distribution Date.
Distributions to the Holder of this Class A-5 Certificate shall be applied first
to interest and then to principal.
Exhibit B-5-3
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall hold Class A-5 Certificates evidencing a Percentage Interest
aggregating 10% or more or, if not, by check mailed by first class mail to
the address of such Certificateholder appearing in the Certificate Register.
The final distribution on each Certificate will be made in like manner, but
only upon presentment and surrender of such Certificate at the Corporate
Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:_______________
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but
solely as Trustee
By ____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-5 Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By ___________________________________
Authorized Signatory
EXHIBIT B-6
CLASS A-6 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF
APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO
THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS _________, 19__.
ASSUMING THAT THE MORTGAGE LOANS PREPAY AT ____% OF THE STANDARD PREPAYMENT
ASSUMPTION (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT), [AND ASSUMING
CONSTANT PASS-THROUGH RATE EQUAL TO THE INITIAL PASS-THROUGH RATE,] THIS
CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $_____ OF OID PER $1,000 OF
INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% AND THE
AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NOT MORE THAN
$______ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED USING
THE APPROXIMATE METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS
WILL PREPAY AT A RATE BASED ON THE STANDARD PREPAYMENT ASSUMPTION OR AT ANY
OTHER RATE OR AS TO THE CONSTANCY OF THE PASS-THROUGH RATE.]
Certificate No. ............................... : A-6-__
Date of Pooling and Servicing Agreement........ : June 1, 1998
Cut-off Date .................................. : May 31, 1998
First Distribution Date........................ : July 10,1998
Initial Certificate Balance of
this Certificate ("Denomination").............. : $__________
Initial Certificate Balance of all
Class A-6 Certificates ........................ : $69,000,000
Pass-Through Rate ............................. : 6.24% (subject to a maximum
rate equal to the weighted
average of the Net Contract
Rates of the Contracts in
the Contract Pool)
Month of Last Scheduled
Distribution Date ............................. : July, 2011
CUSIP ......................................... : 066-06T-AF8
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST V
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1998-2
evidencing a percentage interest in any distributions allocable to the
Class A-6 Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and Bank of
America, FSB, each as Contract Seller (each a "Contract Seller" and
collectively the "Contract Sellers")
which manufactured housing contracts were originated or acquired by Bank of
America, FSB ("BAFSB") or Bank of America National Trust and Savings Association
("Bank of America") respectively, and are initially serviced by BAFSB, acting
through its division, BankAmerica Housing Services (the "Servicer").
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by either Contract Seller, the Servicer or
the Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class A-6
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Sellers. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement, dated as of June 1,
1998 (the "Agreement"), among the Contract Sellers, the Servicer, and The First
National Bank of Chicago, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class A-6 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day preceding such Distribution Date.
Distributions to the Holder of this Class A-6 Certificate shall be applied first
to interest and then to principal.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall hold Class A-6 Certificates evidencing a Percentage Interest
aggregating 10% or more or, if not, by check mailed by first class mail to
the address of such Certificateholder appearing in the Certificate Register.
The final distribution on each Certificate will be made in like manner, but
only upon presentment and surrender of such Certificate at the Corporate
Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: _________________________
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By ____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-6 Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By _________________________________________
Authorized Signatory
EXHIBIT B-7
CLASS A-7 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS _________, 19__. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT ____% OF THE STANDARD PREPAYMENT ASSUMPTION
(AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT), [AND ASSUMING A CONSTANT PASS-
THROUGH RATE EQUAL TO THE INITIAL PASS-THROUGH RATE,] THIS CERTIFICATE HAS BEEN
ISSUED WITH NO MORE THAN $_____ OF OID PER $1,000 OF INITIAL CERTIFICATE
PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NOT MORE THAN $______ PER $1,000
OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED USING THE APPROXIMATE
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE
BASED ON THE STANDARD PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE OR AS TO THE
CONSTANCY OF THE PASS-THROUGH RATE.]
Certificate No. ......... : A-7-__
Date of Pooling and Servicing Agreement : June 1, 1998
Cut-off Date ............ : May 31, 1998
First Distribution Date . : July 10,1998
Exhibit B-7-1
Initial Certificate Balance of
this Certificate ("Denomination") : $__________
Initial Certificate Balance of all
Class A-7 Certificates .. : $180,705,000
Pass-Through Rate ....... : 6.55% (subject to a maximum
rate equal to the weighted
average of the Net Contract
Rates of the Contracts in
the Contract Pool)
Month of Last Scheduled
Distribution Date ....... : November, 2019
CUSIP : 066-06T-AG6
Exhibit B-7-2
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST V
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1998-2
evidencing a percentage interest in any distributions allocable to the
Class A-7 Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and Bank of
America, FSB, each as Contract Seller (each a "Contract Seller" and
collectively the "Contract Sellers")
which manufactured housing contracts were originated or acquired by Bank of
America, FSB ("BAFSB") or Bank of America National Trust and Savings
Association ("Bank of America") respectively, and are initially serviced by
BAFSB, acting through its division, BankAmerica Housing Services (the
"Servicer").
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. Neither this Certificate
nor the Contracts are insured or guaranteed by either Contract Seller, the
Servicer or the Trustee referred to below or any of their respective
Affiliates or by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate of the denominations of all Class A-7
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Sellers. The Trust
Fund was created pursuant to a Pooling and Servicing Agreement, dated as of
June 1, 1998 (the "Agreement"), among the Contract Sellers, the Servicer, and
The First National Bank of Chicago, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record
Date in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the Class A-1 Distribution Amount on such
Distribution Date pursuant to Section 5.02 of the Agreement. The Record Date
applicable to each Distribution Date is the last Business Day preceding such
Distribution Date. Distributions to the Holder of this Class A-7 Certificate
shall be applied first to interest and then to principal.
Exhibit B-7-3
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall hold Class A-7 Certificates evidencing a Percentage Interest
aggregating 10% or more or, if not, by check mailed by first class mail to
the address of such Certificateholder appearing in the Certificate Register.
The final distribution on each Certificate will be made in like manner, but
only upon presentment and surrender of such Certificate at the Corporate
Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of
authentication hereon has been manually executed by an authorized officer of
the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
----------------------
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but
solely as Trustee
By
------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-7
Certificates referred to in the
within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
-----------------------------
Authorized Signatory
Exhibit B-7-4
EXHIBIT B-8
CLASS M CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS _________, 19__. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT ____% OF THE STANDARD PREPAYMENT ASSUMPTION
(AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT), [AND ASSUMING A CONSTANT PASS-
THROUGH RATE EQUAL TO THE INITIAL PASS-THROUGH RATE,] THIS CERTIFICATE HAS BEEN
ISSUED WITH NO MORE THAN $_____ OF OID PER $1,000 OF INITIAL CERTIFICATE
PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NOT MORE THAN $______ PER $1,000
OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED USING THE APPROXIMATE METHOD.
NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED
ON THE STANDARD PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE OR AS TO THE
CONSTANCY OF THE PASS-THROUGH RATE.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO ANY
PERSON, UNLESS THE TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO
SECTION 6.02(b) OF THE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
SERVICER, THE CONTRACT SELLERS AND THE TRUSTEE THAT THE PURCHASE OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE AND WILL NOT
SUBJECT THE
Exhibit B-9-1
SERVICER, THE CONTRACT SELLERS OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN
ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
Certificate No. : M-__
Date of Pooling and Servicing Agreement : June 1, 1998
Cut-off Date : May 31, 1998
First Distribution Date : July 10, 1998
Initial Certificate Balance of
this Certificate ("Denomination") : $__________
Initial Certificate Balance of all
Class M Certificates : $51,449,000
Pass-Through Rate : 6.83% (subject to a maximum
rate equal to the weighted
average of the Net Contract
Rates of the Contracts in
the Contract Pool)
Month of Last Scheduled
Distribution Date : August, 2023
CUSIP :
Exhibit B-9-2
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST V
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1998-2
evidencing a percentage interest in any distributions allocable to the
Class M Certificates with respect to a Trust Fund consisting primarily of a
pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and Bank of
America, FSB, each as Contract Seller (each a "Contract Seller" and
collectively the "Contract Sellers")
which manufactured housing contracts were originated or acquired by Bank of
America, FSB ("BAFSB") or Bank of America National Trust and Savings Association
("Bank of America") respectively, and are initially serviced by BAFSB, acting
through its division, BankAmerica Housing Services (the "Servicer").
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by either Contract Seller, the Servicer or
the Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class M
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Sellers. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement, dated as of June 1,
1998 (the "Agreement"), among the Contract Sellers, the Servicer, and The First
National Bank of Chicago, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class M Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day preceding such Distribution Date.
Distributions to the Holder of this Class M Certificate shall be applied first
to interest and then to principal.
Exhibit B-9-3
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold Class M
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
No transfer of this Class M Certificate will be made unless the Trustee has
received either (i) an Opinion of Counsel acceptable to and in form and
substance satisfactory to the Trustee, the Contract Sellers and the Servicer
with respect to the permissibility of such transfer under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and Section 4975
of the Internal Revenue Code (the "Code") and stating, among other things, that
the transferee's acquisition of the Class M Certificate will not constitute or
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code and will not subject the Servicer, the Contract Sellers
or the Trustee to any obligation or liability in addition to those undertaken in
the Agreement or (ii) a representation letter, in the form as described by the
Agreement, stating either (a) that the transferee is not an employee benefit or
other plan subject to the prohibited transaction provisions of ERISA or Section
4975 of the Code (a "Plan"), or any other person (including an investment
manager, a named fiduciary or a trustee of any Plan) acting, directly or
indirectly, on behalf of or purchasing any Certificate with "plan assets" of any
Plan, or (b) that the transferee is an insurance company, the source of funds to
be used by it to purchase the Certificate is an "insurance company general
account" (within the meaning of Department of Labor Prohibited Transaction Class
Exemption ("PTCE") 95-60), and the purchase is being made in reliance upon the
availability of the exemptive relief afforded under Sections I and III of PTCE
95-60.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
Exhibit B-9-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
-------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but solely as Trustee
By
----------------------------------
Authorized Signatory
Exhibit B-9-5
EXHIBIT B-9
CLASS B-1 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS _________, 19__. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT ____% OF THE STANDARD PREPAYMENT ASSUMPTION
(AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT), [AND ASSUMING A CONSTANT
PASS-THROUGH RATE EQUAL TO THE INITIAL PASS-THROUGH RATE,] THIS CERTIFICATE HAS
BEEN ISSUED WITH NO MORE THAN $_____ OF OID PER $1,000 OF INITIAL CERTIFICATE
PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NOT MORE THAN $______ PER $1,000
OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED USING THE APPROXIMATE METHOD.
NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON
THE STANDARD PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE OR AS TO THE CONSTANCY
OF THE PASS-THROUGH RATE.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO ANY
PERSON, UNLESS THE TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO
SECTION 6.02(b) OF THE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
SERVICER, THE CONTRACT SELLERS AND THE TRUSTEE THAT THE PURCHASE OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION
UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE
Exhibit B-10-1
SERVICER, THE CONTRACT SELLERS OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN
ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
THIS CLASS B-1 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES AND THE CLASS M CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED
TO HEREIN.
Certificate No. : B-1-___
Date of Pooling and Servicing Agreement : June 1, 1998
Cut-off Date : May 31, 1998
First Distribution Date : July 10, 1998
Initial Certificate Balance of
this Certificate ("Denomination") : $__________
Initial Certificate Balance of all
Class B-1 Certificates : $41,159,000
Pass-Through Rate : _____% (subject to a maximum
rate equal to the weighted
average of the Net Contract
Rates of the Contracts in
the Contract Pool)
Month of Last Scheduled
Distribution Date : November, 2028
CUSIP :
Exhibit B-10-2
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST V
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1998-2
evidencing a percentage interest in any distributions allocable to the
Class B-1 Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and Bank of
America, FSB, each as Contract Seller (each a "Contract Seller" and
collectively the "Contract Sellers")
which manufactured housing contracts were originated or acquired by Bank of
America, FSB ("BAFSB") or Bank of America National Trust and Savings Association
("Bank of America") respectively, and are initially serviced by BAFSB, acting
through its division, BankAmerica Housing Services (the "Servicer").
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by either Contract Seller, the Servicer or
the Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class B-1
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Sellers. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement, dated as of June 1,
1998 (the "Agreement"), among the Contract Sellers, the Servicer, and The First
National Bank of Chicago, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class B-1 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day preceding such Distribution Date.
Distributions to the Holder of this Class B-1 Certificate shall be applied first
to interest and then to principal.
Exhibit B-10-3
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold Class B-1
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
No transfer of this Class B-1 Certificate will be made unless the Trustee
has received either (i) an Opinion of Counsel acceptable to and in form and
substance satisfactory to the Trustee, the Contract Sellers and the Servicer
with respect to the permissibility of such transfer under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and Section 4975
of the Internal Revenue Code (the "Code") and stating, among other things, that
the transferee's acquisition of Class B-1 Certificate will not constitute or
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code and will not subject the Servicer, the Contract Sellers
or the Trustee to any obligation or liability in addition to those undertaken in
the Agreement or (ii) a representation letter, in the form as described by the
Agreement, stating either (a) that the transferee is not an employee benefit or
other plan subject to the prohibited transaction provisions of ERISA or Section
4975 of the Code (a "Plan"), or any other person (including an investment
manager, a named fiduciary or a trustee of any Plan) acting, directly or
indirectly, on behalf of or purchasing any Certificate with "plan assets" of any
Plan, or (b) that the transferee is an insurance company, the source of funds to
be used by it to purchase the Certificate is an "insurance company general
account" (within the meaning of Department of Labor Prohibited Transaction Class
Exemption ("PTCE") 95-60), and the purchase is being made in reliance upon the
availability of the exemptive relief afforded under Sections I and III of PTCE
95-60.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
Exhibit B-10-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:________________________
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but solely
as Trustee
By
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B-1 Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but solely as Trustee
By
------------------------------------------
Authorized Signatory
Exhibit B-10-5
EXHIBIT B-10
CLASS B-2 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS _________, 19__.
ASSUMING THAT THE MORTGAGE LOANS PREPAY AT ____% OF THE STANDARD PREPAYMENT
ASSUMPTION (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT), [AND ASSUMING A
CONSTANT PASS-THROUGH RATE EQUAL TO THE INITIAL PASS-THROUGH RATE,] THIS
CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $_____ OF OID PER $1,000 OF
INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% AND THE
AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NOT MORE THAN
$______ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED USING
THE APPROXIMATE METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS
WILL PREPAY AT A RATE BASED ON THE STANDARD PREPAYMENT ASSUMPTION OR AT ANY
OTHER RATE OR AS TO THE CONSTANCY OF THE PASS-THROUGH RATE.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO ANY
PERSON, UNLESS THE TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO
SECTION 6.02(b) OF THE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
SERVICER, THE CONTRACT SELLERS AND THE TRUSTEE THAT THE PURCHASE OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION
UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE
SERVICER, THE CONTRACT SELLERS OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN
ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT") OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS IN A TRANSACTION WHICH IS EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 6.02 OF THE AGREEMENT.
Exhibit B-11-1
THIS CLASS B-2 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES AND THE CLASS M CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED
TO HEREIN.
Certificate No. : B-2-__
Date of Pooling and Servicing Agreement : June 1, 1998
Cut-off Date : May 31, 1998
First Distribution Date : July 10, 1998
Initial Certificate Balance of
this Certificate ("Denomination") : $__________
Initial Certificate Balance of all
Class B-2 Certificates : $30,869,617.84
Pass-Through Rate : _____%(subject to a maximum
rate equal to the weighted
average of the Net Contract
Rates of the Contracts in
the Contract Pool)
Month of Last Scheduled
Distribution Date : ___ ____________
CUSIP : ____________
Exhibit B-11-2
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST V
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1998-2
evidencing a percentage interest in any distributions allocable to the
Class B-2 Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and Bank of
America, FSB, each as Contract Seller (each a "Contract Seller" and
collectively the "Contract Sellers")
which manufactured housing contracts were originated or acquired by Bank of
America, FSB ("BAFSB") or Bank of America National Trust and Savings Association
("Bank of America") respectively, and are initially serviced by BAFSB, acting
through its division, BankAmerica Housing Services (the "Servicer").
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by either Contract Seller, the Servicer or
the Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that ___________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class B-2
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Sellers. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement, dated as of June 1,
1998 (the "Agreement"), among the Contract Sellers, the Servicer, and The First
National Bank of Chicago, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class B-2 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day preceding such Distribution Date.
Distributions to the Holder of this Class B-2 Certificate shall be applied first
to interest and then to principal.
Exhibit B-11-3
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold Class B-2
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
No transfer of this Class B-2 Certificate will be made unless the Trustee
has received either (i) an Opinion of Counsel acceptable to and in form and
substance satisfactory to the Trustee, the Contract Sellers and the Servicer
with respect to the permissibility of such transfer under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and Section 4975
of the Internal Revenue Code (the "Code") and stating, among other things, that
the transferee's acquisition of Class B-2 Certificate will not constitute or
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code and will not subject the Servicer, the Contract Sellers
or the Trustee to any obligation or liability in addition to those undertaken in
the Agreement or (ii) a representation letter, in the form as described by the
Agreement, stating either (a) that the transferee is not an employee benefit or
other plan subject to the prohibited transaction provisions of ERISA or Section
4975 of the Code (a "Plan"), or any other person (including an investment
manager, a named fiduciary or a trustee of any Plan) acting, directly or
indirectly, on behalf of or purchasing any Certificate with "plan assets" of any
Plan, or (b) that the transferee is an insurance company, the source of funds to
be used by it to purchase the Certificate is an "insurance company general
account" (within the meaning of Department of Labor Prohibited Transaction Class
Exemption ("PTCE") 95-60), and the purchase is being made in reliance upon the
availability of the exemptive relief afforded under Sections I and III of PTCE
95-60.
No transfer of a Class B-2 Certificate shall be made unless such transfer
is exempt from the registration requirements of the Securities Act of 1933, as
amended, (the "Act"), or is made in accordance with said Act. In the event that
such a transfer is to be made, the prospective transferee of such Certificate
shall be required to provide the Trustee, the Contract Sellers and the Servicer
with an investment letter substantially in the form described by the Agreement,
as required under Section 6.02 of the Agreement. The Holder hereof desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee, the
Contract Sellers, the Servicer and the Certificate Registrar acting on behalf of
the Trustee against any liability that may result if the transfer is not so
exempt or is not made in accordance with the Act or any similar state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
Exhibit B-11-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but
solely as Trustee
By
---------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B-2 Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but solely as Trustee
By
----------------------------------------------
Authorized Signatory
Exhibit B-11-5
EXHIBIT C
FORM OF REVERSE OF CERTIFICATES
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST V
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1998-2
This Certificate is one of a duly authorized issue of Certificates
designated as BankAmerica Manufactured Housing Contract Trust V
Senior/Subordinate Pass-Through Certificates, Series 1998-2 issued in eleven
Classes (Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3, Class A-4, Class A-5, Class A-6, Class
A-7 Class M, Class ▇-▇, Class B-2 and Class R, herein collectively called the
"Certificates"), and representing a beneficial ownership interest, as described
in the Agreement, in (i) the related Contracts, (ii) the distributions thereon
on or after the Cut-off Date (to the extent described herein), (iii) the related
Certificate Account and such assets as are deposited therein from time to time
and any investments thereof, together, in each case, with any and all income,
proceeds and payments with respect thereto, and (iv) the Reserve Account.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account and the
funds, if any, on deposit in the Reserve Account for payment hereunder and that
the Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Contract Sellers, the Servicer and the Trustee with the consent of the
Holders of a Majority In Interest of each Class of Regular Certificates affected
by such amendment. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by the
Trustee in New York, New York, accompanied by a written instrument of transfer
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same
Exhibit C-1
aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Contract Sellers and the Trustee and any agent of the Contract Sellers
or the Trustee may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither of the Contract Sellers, the
Trustee, nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the Pool Scheduled Principal Balance
is less than or equal to 10% of the Cut-off Date Pool Principal Balance, the
Servicer will have the option to repurchase, upon giving notice mailed no
later than the 10th day of the month next preceding the month of the exercise
of such option, all Outstanding Contracts at a price equal to the greater of
(a) the sum of (x) 100% of the Scheduled Principal Balance of each Contract
(other than any Contract as to which the related Manufactured Home has been
acquired and not yet disposed of and whose fair market value is included
pursuant to Clause (y) below) as of the final Distribution Date, and (y) the
fair market value of such acquired property (as determined by the Servicer as
of the close of business on the third Business Day next preceding the date
upon which notice of any such termination is furnished to Certificateholders
pursuant to Section 10.01 of the Agreement), and (b) the aggregate fair
market value (as determined by the Servicer as of the close of business on
such third Business Day) of all the assets in the Trust Fund, plus, in the
case of both clause (a) and clause (b), an amount sufficient to (i) reimburse
any Class A-1 Unpaid Interest Shortfall, Class A-2 Unpaid Interest Shortfall,
Class A-3 Unpaid Interest Shortfall, Class A-4 Unpaid Interest Shortfall,
Class A-5 Unpaid Interest Shortfall, Class A-6 Unpaid Interest Shortfall,
Class A-7 Unpaid Interest Shortfall, Class M Unpaid Interest Shortfall, Class
B-1 Unpaid Interest Shortfall, and any Class B-2 Unpaid Interest Shortfall
and (ii) pay one month's interest due on the Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5, Class A-6, Class A-7, Class M, Class B-1 and Class B-2
Certificates at the applicable Pass-Through Rates on such Classes' unpaid
Certificate Balances; provided, that in no event shall the purchase price of
such Contracts be less than the Minimum Termination Amount.
On any Distribution Date on which the Pool Scheduled Principal Balance is
less than or equal to 10% of the Cut-off Date Pool Principal Balance, the
Servicer may request that the Trustee conduct an auction (a "Termination
Auction") by soliciting bids for the purchase of all Contracts remaining in the
Trust Fund, and in any event, if the Servicer has not exercised the option
described in the preceding paragraph within ninety days following the
Distribution Date as of which the Pool Scheduled Principal Balance is less than
10% of the Cut-off Date Pool Principal
Exhibit C-2
Balance, the Trustee shall conduct such termination auction. In the event
that satisfactory bids are received as described in the Agreement, the net
sale proceeds will be distributed to Certificateholders, in the same order of
priority as collections received in respect of the Contracts. A satisfactory
bid is one in which the purchase price of the Contracts then outstanding is
at least equal to the Minimum Termination Amount (as hereinafter defined).
Such a bid must be made in accordance with certain auction procedures set
forth in the Agreement, which include a requirement that the Trustee receive
good faith bids for such Contracts from at least two prospective purchasers
(at least one of whom is not the Contract Sellers or an affiliate thereof)
that are considered by the Trustee, in its sole discretion, to be (i)
competitive participants in the market for manufactured housing installment
sale contracts or installment loan agreements and (ii) willing and able
purchasers of such Contracts. As of any time after the Pool Scheduled
Principal Balance is less than 10% of the Cut-off Date Pool Principal
Balance, the "Minimum Termination Amount" is an amount equal to the
respective Certificate Balances of all Classes of Certificates that remain
outstanding as of such time, together with any shortfall in interest due on
such Certificates in respect of prior Distribution Dates and one month's
interest at the applicable Pass-Through Rates on such Certificate Balances.
A sale and consequent termination of the Trust Fund pursuant to a Termination
Auction must constitute a "qualified liquidation" of the Trust Fund under
Section 860F of the Code, including the requirement that the qualified
liquidation takes place over a period not to exceed 90 days. If satisfactory
bids are not received, the Trustee shall decline to sell the Contracts and
shall not be under any obligation to solicit any further bids or otherwise
negotiate any further sale of the Contracts.
Any repurchase pursuant to a Termination Auction or by the Servicer will
be made at the price specified in the Agreement. In the event that no such
early termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon the later of the final payment or other
liquidation of the last Contract remaining in the Trust Fund and the
disposition of all REO Property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last
survivor of the descendants living at the date of the Agreement of the
certain person named in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
Exhibit C-3
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
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(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________________, for the account of _______________,
account number ____________________, or, if mailed by check, to _____________.
Applicable statements should be mailed to ______________.
This information is provided by ___________________________, the assignee
named above, or _________________________, as its agent.
Exhibit C-4
EXHIBIT D
CLASS R CERTIFICATE
THE CLASS R CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO ANY
PERSON, UNLESS THE TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO
SECTION 6.02(b) OF THE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
SERVICER, THE CONTRACT SELLERS AND THE TRUSTEE THAT THE PURCHASE OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE AND WILL NOT
SUBJECT THE SERVICER, THE CONTRACT SELLERS OR THE TRUSTEE TO ANY OBLIGATION
OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT") OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS IN A TRANSACTION WHICH IS
EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6.02 OF THE
AGREEMENT. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED TO A "DISQUALIFIED ORGANIZATION" AS DEFINED IN SECTION 860(e)(5)
OF THE CODE.
THE HOLDERS OF THE CLASS R CERTIFICATES, BY PURCHASING SUCH CLASS R
CERTIFICATES, SHALL BE DEEMED TO CONSENT (1) TO THE APPOINTMENT OF THE
SERVICER AS THE TAX MATTERS PERSON FOR THE TRUST FUND OR, IF THE SERVICER
DETERMINES, IN ITS SOLE DISCRETION, THAT IT CANNOT ACT IN SUCH CAPACITY, TO
THE APPOINTMENT OF THE HOLDER HOLDING THE LARGEST PERCENTAGE INTEREST IN THE
OUTSTANDING CLASS R CERTIFICATES AS THE TAX MATTERS PERSON FOR THE TRUST
FUND. IF THE HOLDER OF THE LARGEST PERCENTAGE INTEREST IN THE OUTSTANDING
CLASS R CERTIFICATES IS APPOINTED AS THE TAX MATTERS PERSON, SUCH HOLDER
SHALL BE DEEMED TO CONSENT, WITH RESPECT TO ITS CAPACITY AS TAX MATTERS
PERSON, TO THE APPOINTMENT OF THE SERVICER AS ITS ATTORNEY-IN-FACT AND AGENT.
Exhibit D-1
THE HOLDERS OF THE CLASS R CERTIFICATES, BY PURCHASING SUCH CLASS R
CERTIFICATES, SHALL BE FURTHER DEEMED TO AGREE TO EXECUTE ANY DOCUMENTS
REQUIRED TO GIVE EFFECT TO THE FOREGOING PROVISIONS, AS SET FORTH MORE FULLY
IN THE AGREEMENT. THIS CLASS R CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT
TO THE SENIOR CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS B-1
CERTIFICATES AND THE CLASS B-2 CERTIFICATES AS DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
Certificate No. R-__
Date of Pooling and Servicing Agreement: June 1, 1998
Cut-off Date: May 31, 1998
First Distribution Date: July 10, 1998
Percentage Interest
Evidenced by this
Class R Certificate _____%
Exhibit D-2
BANKAMERICA MANUFACTURED HOUSING CONTRACT TRUST V
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES
SERIES 1998-2
evidencing a percentage interest in any distributions allocable to the
Class R Certificates with respect to a Trust Fund consisting primarily of a
pool of fixed-rate conventional manufactured housing contracts (the
"Contracts") formed and sold by
Bank of America National Trust and Savings Association and Bank of
America, FSB, each as Contract Seller (each a "Contract Seller" and
collectively the "Contract Sellers")
which manufactured housing contracts were originated or acquired by Bank of
America, FSB ("BAFSB") or Bank of America National Trust and Savings Association
("Bank of America") respectively, and are initially serviced by BAFSB, acting
through its division, BankAmerica Housing Services (the "Servicer").
Neither this Certificate nor the Contracts are insured or guaranteed by the
Contract Sellers, the Servicer or the Trustee referred to below or any of their
respective Affiliates or by any governmental agency or instrumentality.
This certifies that __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust Fund consisting of the Contracts deposited by the Contract
Sellers. The Trust Fund was created pursuant to a Pooling and Servicing
Agreement, dated as of June 1, 1998 (the "Agreement"), among the Contract
Sellers, the Servicer, and The First National Bank of Chicago, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
The Trustee will cause to be distributed to the Class R Certificateholder
the amounts to which such Holder is entitled pursuant to the terms of the
Agreement. Such distributions will be made by check mailed to the address of
the Person entitled thereto, as such address shall appear on the Certificate
Register or by wire or other transfer of immediately available funds if such
Person has given the Trustee written instructions at least ten days prior to the
related Distribution Date. Notwithstanding the above, the final distribution on
this Class R Certificate will be made only upon presentation and surrender of
this Class R Certificate at the Corporate Trust Office or the office or agency
maintained by the Trustee for such purpose.
No transfer of this Class R Certificate will be made unless the Trustee has
received either (i) an Opinion of Counsel acceptable to and in form and
substance satisfactory to the Trustee, the Contract Sellers and the Servicer
with respect to the permissibility of such transfer under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and Section 4975
of the Internal Revenue Code (the "Code") and stating, among other things, that
the transferee's
Exhibit D-3
acquisition of Class R Certificate will not constitute or result in a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of the Code and will not subject the Servicer, the Contract Sellers or the
Trustee to any obligation or liability in addition to those undertaken in the
Agreement or (ii) a representation letter, in the form as described by the
Agreement, stating that the transferee is not an employee benefit or other
plan subject to the prohibited transaction provisions of ERISA or Section
4975 of the Code (a "Plan"), or any other person (including an investment
manager, a named fiduciary or a trustee of any Plan) acting, directly or
indirectly, on behalf of or purchasing any Certificate with "plan assets" of
any Plan.
No transfer of a Class R Certificate shall be made unless such transfer is
exempt from the registration requirements of the Securities Act of 1933, as
amended, (the "Act"), or is made in accordance with said Act. In the event that
such a transfer is to be made, the prospective transferee of such Certificate
shall be required to provide the Trustee, the Contract Sellers and the Servicer
with an investment letter substantially in the form described by the Agreement,
as required under Section 6.02 of the Agreement. The Holder hereof desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee, the
Contract Sellers, the Servicer and the Certificate Registrar acting on behalf of
the Trustee against any liability that may result if the transfer is not so
exempt or is not made in accordance with the Act or any similar state laws.
Each Holder of this Class R Certificate will be deemed to have agreed to be
bound by the restrictions of Section 6.02 of the Agreement, including but not
limited to the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Class R Certificate must be a Permitted Transferee,
(ii) no Ownership Interest in this Class R Certificate may be transferred
without delivery to the Trustee of (a) a transfer affidavit of the proposed
transferee and (b) a transfer certificate of the transferor, each of such
documents to be in the form described in the Agreement, (iii) each person
holding or acquiring any Ownership Interest in this Class R Certificate must
agree to require a transfer affidavit and to deliver a transfer certificate to
the Trustee as required pursuant to the Agreement, (iv) each person holding or
acquiring an Ownership Interest in this Class R Certificate must agree not to
transfer an Ownership Interest in this Class R Certificate if it has actual
knowledge that the proposed transferee is not a Permitted Transferee and (v) any
attempted or purported transfer of any Ownership Interest in this Class R
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
Exhibit D-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
----------------------
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity,
but solely as Trustee
By
---------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates
referred to in the within-named Agreement
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity, but solely as Trustee
By
-----------------------------
Authorized Signatory
Exhibit D-5
EXHIBIT E
FORM OF CERTIFICATE REGARDING
SUBSTITUTION OF ELIGIBLE SUBSTITUTE CONTRACT
The undersigned certify that they are [title] and [title], respectively of
[Bank of America National Trust and Savings Association ("Bank of America")]
[Bank of America, FSB, acting through its division, BankAmerica Housing
Services] (the "Contract Seller"), and that as such they are duly authorized to
execute and deliver this certificate on behalf of the Contract Seller pursuant
to Section 3.05(b) of the Pooling and Servicing Agreement (the "Agreement")
dated as of June 1, 1998 among Bank of America National Trust and Savings
Association ("Bank of America") as Contract Seller, Bank of America, FSB, acting
through its division, BankAmerica Housing Services as Contract Seller and
Servicer, and The First National Bank of Chicago as Trustee (all capitalized
terms used herein without definition having the respective meanings specified in
the Agreement), and further certify that:
1. The Contracts on the attached schedule are to be substituted on the
date hereof pursuant to Section 3.05(b) of the Agreement and each such Contract
is an Eligible Substitute Contract.
2. The Contract File for each such Contract being substituted for a
Replaced Contract is in the custody of the Servicer and each such Contract has
been stamped in accordance with Section 3.02(x) of the Agreement.
3. The UCC-1 financing statement in respect of the Contracts to be
substituted, in the form required by Section 3.05(b)(ii) of the Agreement, has
been filed with the appropriate office in California.
4. There has been deposited in the Certificate Account each amount listed
on the schedule attached hereto as the amount by which the remaining principal
balance of each Replaced Contract exceeds the remaining principal balance as of
the beginning of the month of substitution of each Contract being substituted
therefor.
IN WITNESS WHEREOF, I have affixed hereunto my signature this _____ day of
______, 19__.
[CONTRACT SELLER]
By
---------------------------------
[Name]
-----------------------------
[Title]
----------------------------
By
---------------------------------
[Name]
-----------------------------
[Title]
----------------------------
Exhibit E-1
EXHIBIT F
[FORM OF CERTIFICATE OF SERVICING OFFICER]
The undersigned certifies that he is a [title] of [Servicer], a
[__________ corporation][federal savings bank] (the "Servicer"), and that as
such he is duly authorized to execute and deliver this certificate on behalf
of the Servicer pursuant to Section 5.05 of the Pooling and Servicing
Agreement (the "Agreement") dated as of June 1, 1998 among Bank of America
National Trust and Savings Association, as Contract Seller, Bank of America,
FSB, acting through its division, BankAmerica Housing Services, as Servicer
and Contract Seller and The First National Bank of Chicago, as trustee (all
capitalized terms used herein without definition having the respective
meanings specified in the Agreement), and further certifies that:
1. To the best of such officer's knowledge, the Monthly Report for the
period from _____________ to _____________ attached to this certificate is
complete and accurate in accordance with the requirements of Sections 5.04 and
5.05 of the Agreement; and
2. As of the date hereof, such officer is not aware of the occurrence of
an Event of Default or of an event that, with notice or lapse of time or both,
would become an Event of Default.
IN WITNESS WHEREOF, I have affixed hereunto my signature this _____ day
of _______, ___________.
[SERVICER]
By
------------------------------------
[Name]
--------------------------------
[Title]
-------------------------------
Exhibit F-1
EXHIBIT G-1
TRANSFER AFFIDAVIT
STATE OF )
)ss
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. That he/she is [Title of Officer] of [Name of Owner]
(record or beneficial owner of the BankAmerica Manufactured Housing Contract
Trust V Senior/Subordinate Pass-Through Certificates, Series 1998-2, Class R
(the "Owner")), a [savings institution][corporation] duly organized and
existing under the laws of [the State of ____________][the United States], on
behalf of which he/she makes this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified
organization" as of [date of transfer] within the meaning of Section
860E(e)(5) of the Internal Revenue Code of 1986, as amended (the "Code"),
(ii) will endeavor to remain other than a disqualified organization for so
long as it retains its ownership interest in the Class R Certificates, and
(iii) is acquiring the Class R Certificates for its own account or for the
account of another Owner from which it has received an affidavit and
agreement in substantially the same form as this affidavit and agreement.
(For this purpose, a "disqualified organization" means the United States, any
state or political subdivision thereof, any agency or instrumentality of any
of the foregoing (other than an instrumentality all of the activities of
which are subject to tax and, except for the Federal Home Loan Mortgage
Corporation, a majority of whose board of directors is not selected by any
agency or instrumentality of such foreign government or organization, any
rural electric or telephone cooperative, or any organization (other than
certain farmers' cooperatives) that is generally exempt from federal income
tax unless such organization is subject to the tax on unrelated business
taxable income).
3. That the Owner is aware (i) of the tax that would be
imposed on transfers of Class R Certificates to disqualified organizations
under the Code, that applies to all transfers of Class R Certificates after
March 31, 1988; (ii) that such tax would be on the transferor, or, if such
transfer is through an agent (which person includes a broker, nominee or
middleman) for a disqualified organization, on the agent; (iii) that the
person otherwise liable for the tax shall be relieved of liability for the
tax if the transferee furnishes to such person an affidavit that the
transferee is not a disqualified organization and, at the time of transfer,
such person does not have actual knowledge that the affidavit is false; and
(iv) that the Class R Certificates may be "noneconomic residual interests"
within the meaning of Treasury regulations promulgated pursuant to the Code
and that the transferor of a noneconomic residual interest will remain liable
for any taxes due with respect to the income on such residual interest,
unless no significant purpose of the transfer was to impede the assessment or
collection of tax.
Exhibit G-1-1
4. That the Owner is aware of the tax imposed on a
"pass-through entity" holding Class R Certificates if at any time during the
taxable year of the pass-through entity a disqualified organization is the
record holder of an interest in such entity. (For this purpose, a "pass
through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives.)
5. The Owner is not an employee benefit plan or other plan
subject to the prohibited transaction provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Code, or an investment manager, named fiduciary or a trustee of any such
plan, or any other Person acting, directly or indirectly, on behalf of or
purchasing any Certificate with "plan assets" of any such plan.
6. That the Owner is aware that the Trustee will not
register the transfer of any Class R Certificates unless the transferee, or
the transferee's agent, delivers to it an affidavit and agreement, among
other things, in substantially the same form as this affidavit and agreement.
The Owner expressly agrees that it will not consummate any such transfer if
it knows or believes that any of the representations contained in such
affidavit and agreement are false.
7. That the Owner has reviewed the restrictions set forth on
the face of the Class R Certificates and the provisions of Section 6.02(c) of
the Pooling and Servicing Agreement (the "Agreement") under which the Class R
Certificates were issued (in particular, clause (iii)(A) and (iii)(B) of
Section 6.02(c) which authorize the Trustee to deliver payments to a person
other than the Owner and negotiate a mandatory sale by the Trustee in the
event the Owner holds such Certificates in violation of Section 6.02(c)).
The Owner expressly agrees to be bound by and to comply with such
restrictions and provisions.
8. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the Class R Certificates
will only be owned, directly or indirectly, by an Owner that is not a
disqualified organization.
9. The Owner's Taxpayer Identification Number is ____________.
10. This affidavit and agreement relates only to the Class R
Certificates held by the Owner and not to any other holder of the Class R
Certificates. The Owner understands that the liabilities described herein
relate only to the Class R Certificates.
11. That no purpose of the Owner relating to the transfer of any
of the Class R Certificates by the Owner is or will be to impede the assessment
or collections of any tax.
12. That the Owner has no present knowledge or expectation that
it will be unable to pay any United States taxes owed by it so long as any of
the Certificates remain outstanding. In this regard, the Owner hereby
represents to and for the benefit of the person from whom it acquired the Class
R Certificate that the Owner intends to pay taxes associated with holding such
Class R Certificate as they become due, fully understanding that it may incur
tax liabilities in excess of any cash flows generated by the Class R
Certificate.
Exhibit G-1-2
13. That the Owner has no present knowledge or expectation that
it will become insolvent or subject to a bankruptcy proceeding for so long as
any of the Class R Certificates remain outstanding.
14. The Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States state thereof (including the District of Columbia),
or an estate or trust whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this ___ day of ___________, 19__.
[NAME OF TRANSFEREE]
By:
---------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
---------------------------------
[Assistant] Secretary
Personally appeared before me the above-named _____________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the _____________ of the Transferee, and acknowledged that he executed the
same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this _______ day of ______,19__.
-------------------------------------
NOTARY PUBLIC
My Commission expires the __ day of
________, 19__.
Exhibit G-1-3
EXHIBIT G-2
FORM OF TRANSFEROR CERTIFICATE
FOR CLASS R CERTIFICATES
Bank of America, FSB Date:
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▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The First National Bank of Chicago,
as Trustee
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Re: BankAmerica Manufactured Housing Contract Trust V
Senior/Subordinate Pass-Through Certificates, Series 1998-2
-----------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
________(the "Transferor") to _________(the "Buyer") of $___________Initial
Certificate Principal Balance of BankAmerica Manufactured Housing Contract Trust
V Senior/Subordinate Pass-Through Certificates, Series 1998-2, Class R (the
"Certificates"), issued pursuant to Section 6.02(c) of the Pooling and Servicing
Agreement (the "Agreement"), dated as of June 1, 1998 among Bank of America
National Trust and Savings Association as Contract Seller, Bank of America, FSB,
acting through its division, BankAmerica Housing Services as Contract Seller and
Servicer, and The First National Bank of Chicago (the "Trustee"). All terms
used herein and not otherwise defined shall have the meanings set forth in the
Agreement. The Transferor hereby certifies, represents and warrants to, and
covenants with, the Contract Sellers and the Trustee that:
1. No purpose of the Transferor relating to the transfer of the
Certificate by the Transferor to the Buyer is or will be to impede the
assessment or collection of any tax.
2. The Transferor understands that the Buyer has delivered to the
Trustee and the Servicer a transfer affidavit and agreement in the form attached
to the Agreement as Exhibit G-1. The Transferor does not know or believe that
any representation contained therein is false.
3. The Transferor has at the time of the transfer conducted a
reasonable investigation of the financial condition of the Buyer as contemplated
by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Transferor has determined that the Buyer has historically
paid its debts as they become due and has found no significant evidence to
indicate that the Buyer will not continue to pay its debts as they become due in
the future. The Transferor understands that the transfer of a Class R
Certificate may not be respected for United States income tax purposes (and the
Transferor may continue to be liable for United States income taxes associated
therewith) unless the Transferor has conducted such an investigation.
Exhibit G-2-1
4. The Transferor has no actual knowledge that the proposed Buyer is
not both a United States Person and a Permitted Transferee.
5. The Transferor further certifies that (a) we understand that such
Certificates have not been registered under the Securities Act of 1933, as
amended (the "Act"), and are being disposed of by us in a transaction that is
exempt from the registration requirements of the Act, (b) neither the Transferor
nor anyone acting on its behalf has (i) offered, pledged, sold, disposed of or
otherwise transferred any Certificate, any interest in any Certificate or any
other similar security from any person in any manner, (ii) solicited any offer
to buy or to accept a pledge, disposition or other transfer of any Certificate,
any interest in any Certificate or any other similar security from any person in
any manner, (iii) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security from
any person in any manner, (iv) made any general solicitation by means of general
advertising or in any other manner, or (v) taken any other action, that (as to
any of (i) through (v) above) would constitute a distribution of the
Certificates under the Act, that would render the disposition of any Certificate
a violation of Section 5 of the Act or any state securities law, or that would
require registration or qualification pursuant thereto, or (c) to the extent
such transfer is pursuant to Rule 144A under the Act, we have not offered the
Certificates to anyone other than a "qualified institutional buyer" as defined
in Rule 144A and the Act. The Transferor will not act, in any manner set forth
in the foregoing sentence with respect to any Certificate. The Transferor has
not and will not sell or otherwise transfer any of the Certificates, except in
compliance with the provisions of the Agreement.
Very truly yours,
------------------------------------
Name of Transferor
By:
--------------------------------
Name:
Title:
Exhibit G-2-2
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
FOR CLASS B-2 CERTIFICATES
Bank of America, FSB Date:
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▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The First National Bank of Chicago,
as Trustee
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Re: BankAmerica Manufactured Housing Contract Trust V
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES, SERIES 1998-2
Ladies and Gentlemen:
In connection with our disposition of the Class B-2 Certificate[s], we
(the "Transferor") certify that (a) we understand that such Certificates have
not been registered under the Securities Act of 1933, as amended (the "Act"),
and are being disposed of by us in a transaction that is exempt from the
registration requirements of the Act, (b) neither the Transferor nor anyone
acting on its behalf has (i) offered, pledged, sold, disposed of or otherwise
transferred any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (ii) solicited any offer to
buy or to accept a pledge, disposition or other transfer of any Certificate,
any interest in any Certificate or any other similar security from any person
in any manner, (iii) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
from any person in any manner, (iv) made any general solicitation by means of
general advertising or in any other manner, or (v) taken any other action,
that (as to any of (i) through (v) above) would constitute a distribution of
the Certificates under the Act, that would render the disposition of any
Certificate a violation of Section 5 of the Act or any state securities law,
or that would require registration or qualification pursuant thereto, or (c)
to the extent such transfer is pursuant to Rule 144A under the Act, we have
not offered the Certificates to anyone other than a "qualified institutional
buyer" as defined in Rule 144A and the Act. The Transferor will not act, in
any manner set forth in the foregoing sentence with respect to any
Certificate. The Transferor has not and will not sell or otherwise transfer
any of the Certificates, except in compliance with the provisions of the
Pooling and Servicing Agreement (the "Agreement") dated as of June 1, 1998
among Bank of America National Trust and Savings Association as Contract
Seller, Bank of America, FSB, acting through its division, BankAmerica
Housing Services as Contract Seller and Servicer, and The First National Bank
of Chicago (the "Trustee").
Exhibit H-1
Very truly yours,
------------------------------------
Name of Transferor
By:
--------------------------------
Name:
Title:
Exhibit H-2
EXHIBIT I
FORM OF DEPOSITORY AGREEMENT
______________, 19__
To:
----------------
----------------
----------------
(the "Depository")
As Servicer under the Pooling and Servicing Agreement, dated as of June 1,
1998, we hereby authorize and request you to establish an account, as a
Custodial Account, to be designated as "Bank of America, FSB as servicer, in
trust for the [Buyer and various Mortgagors], [Fixed Rate Mortgage Loans]." All
deposits in the account shall be subject to withdrawal therefrom by order signed
by the Servicer. You may refuse any deposit which would result in violation of
the requirement that the account be fully insured as described below. This
letter is submitted to you in duplicate. Please execute and return one original
to us.
BANK OF AMERICA, FSB
By:
----------------------------------
Name:
--------------------------------
Title:
--------------------------------
Date:
--------------------------------
Exhibit I-1
The undersigned, as Depository, hereby certifies that the above-described
account has been established under Account Number _____________ at the office of
the Depository indicated above, and agrees to honor withdrawals on such account
as provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund ("BIF") or the Savings Association Insurance Fund ("SAIF").
--------------------------------------
Depository
By:
----------------------------------
Name:
--------------------------------
Title:
--------------------------------
Date:
--------------------------------
Exhibit I-2
EXHIBIT J
FORM OF INVESTMENT LETTER AND
FORM OF ERISA REPRESENTATIONS
Date:
Bank of America, FSB
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▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The First National Bank of Chicago,
as Trustee
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Re: BankAmerica Manufactured Housing Contract Trust V
Senior/Subordinate Pass-Through Certificates, Series 1998-2
Ladies and Gentlemen:
__________(the "Buyer") intends to purchase from __________(the
"Transferor") $___ Initial Certificate Principal Balance of BankAmerica
Manufactured Housing Contract Trust V Senior/Subordinate Pass-Through
Certificates, Series 1998-2, Class ___(the "Certificates"), issued pursuant to
the Pooling and Servicing Agreement (the "Agreement"), dated as of June 1, 1998
among Bank of America National Trust and Savings Association, as Contract
Seller, Bank of America, FSB, acting through its division, BankAmerica Housing
Services, as Contract Seller and Servicer, and The First National Bank of
Chicago (the "Trustee"). All terms used herein and not otherwise defined shall
have the meanings set forth in the Agreement. The Buyer hereby certifies,
represents and warrants to, and covenants with, the Contract Sellers and the
Trustee that:
1. We understand that (a) the Certificates have not been and
will not be registered or qualified under the Securities Act of 1933, as
amended (the "Act") or any state securities law, (b) the Contract Sellers
are not required to so register or qualify the Certificates, (c) the
Certificates may be resold only if registered and qualified pursuant to the
provisions of the Act or any state securities law, or if an exemption from
such registration and qualification is available, (d) the Agreement
contains restrictions regarding the transfer of the Certificates and (e)
the Certificates will bear a legend to the foregoing effect.
2. We are acquiring the Certificates for our own account for
investment only and not with a view to or for sale in connection with any
distribution thereof in any manner that would violate the Act or any
applicable state securities laws.
3. We are (a) a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business
matters, and, in particular, in such
Exhibit J-1
matters related to securities similar to the Certificates, such that we
are capable of evaluating the merits and risks of investment in the
Certificates, (b) able to bear the economic risks of such an investment
and (c) an "accredited investor" within the meaning if Rule 501(a)
promulgated pursuant to the Act.
4. We have not and will not nor have we authorized or will authorize
any person to (a) offer, pledge, sell, dispose of or otherwise transfer any
Certificate, any interest in any Certificate or any other similar security
from any person in any manner, (b) solicit any offer to buy or to accept a
pledge, disposition or other transfer of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approach or negotiate with respect to any
Certificate, any interest in any Certificate or any other similar security
from any person in any manner, (d) make any general solicitation by means
of general advertising or in any other manner, or (e) take any other
action, that (as to any of (a) through (e) above) would constitute a
distribution of the Certificates under the Act, that would render the
disposition of any Certificate a violation of Section 5 of the Act or any
state securities law, or that would require registration or qualification
pursuant thereto. We will not sell or otherwise transfer any of the
Certificates, except in compliance with the provisions Agreement.
5. We
(a) (1) are not an employee benefit or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code") (a "Plan"), or any other
person (including an investment manager, a named fiduciary or a trustee of
any Plan) acting, directly or indirectly, on behalf of or purchasing any
Certificate with "plan assets" of any Plan within the meaning of the
Department of Labor ("DOL") regulation at 29 C.F.R. Section 2510.3-101, or
(2) (as to the Class M, B-1 or B-2 Certificates) are an insurance company,
the source of funds to be used by it to purchase the Certificates is an
"insurance company general account" (within the meaning of DOL Prohibited
Transaction Class Exemption ("PTCE") 95-60), and the purchase is eligible
for the exemptive relief afforded under Sections I and III of PTCE 95-60,
and
(b) understand that registration of transfer of any Certificates
to any Plan, or to any Person acting on behalf of or purchasing any such
Certificate with "plan assets" of any Plan, may not be made unless such
Plan or Person, including the Buyer, (1) delivers an Opinion of Counsel,
addressed and satisfactory to the Trustee, the Contract Sellers and the
Servicer, to the effect that the purchase and holding of the Certificates
by, on behalf of or with "plan assets" of such Plan is permissible under
applicable law, will not constitute or result in any non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code, and
will not subject the Contract Sellers, the Servicer or the Trustee to any
obligation or liability (including liabilities under ERISA or Section 4975
of the Code) in addition to those undertaken in the Agreement, or (2) (as
to the Class M, B-1 or B-2 Certificates) makes the certification set forth
in clause (2) of paragraph 5(a) above.
6. We are not a non-United States person.
Exhibit J-2
Very truly yours,
-------------------------------------
Name of Buyer
By:
-------------------------------------
Name:
Title:
Exhibit J-3
EXHIBIT K
FORM OF RULE 144A LETTER
Date:
Bank of America, FSB
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▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The First National Bank of Chicago,
as Trustee
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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Re: BankAmerica Manufactured Housing Contract Trust V
Senior/Subordinate Pass-Through Certificates, Series 1998-2
Ladies and Gentlemen:
The undersigned purchaser ( the "Buyer") warrants and represents to, and
covenants with the Contract Sellers, the Trustee and the Servicer pursuant to
Section 6.02 of the Pooling and Servicing Agreement (the "Agreement"), dated as
of June 1, 1998 among Bank of America National Trust and Savings Association, as
Contract Seller, Bank of America, FSB, acting through its division, BankAmerica
Housing Services, as Contract Seller and Servicer, and The First National Bank
of Chicago (the "Trustee") as follows:
1. We understand that (a) the Rule 144A Securities have not
been and will not be registered or qualified under the Act or any state
securities law, (b) the Contract Seller is not required to so register or
qualify the Rule 144A Securities, (c) the Rule 144A Securities may be
resold only if registered and qualified pursuant to the provisions of the
Act or any state securities law, or if an exemption from such registration
and qualification is available, (d) the Agreement contains restrictions
regarding the transfer of the Rule 144A Securities and (e) the Rule 144A
Securities will bear a legend to the foregoing effect.
2. We are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Act and have completed either of the forms
of certification to that effect attached hereto as Annex 1 or Annex 2. We
are aware that the sale to us is being made in reliance on Rule 144A. We
are acquiring the Rule 144A Securities for our own account or the accounts
of other qualified institutional buyers, understand that such Rule 144A
Securities may be resold, pledged or transferred only (I) to a person
reasonably believed to be a qualified institutional buyer that purchases
for its own account or for the account of a qualified institutional buyer
to whom notice is given that the resale, pledge or transfer is being made
in reliance on Rule 144A, or (ii) pursuant to another exemption from
registration under the Act.
Exhibit K-1
3. We are (a) a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business
matters, and, in particular, in such matters related to securities similar
to the Rule 144A Securities, such that we are capable of evaluating the
merits and risks of investment in the Rule 144A Securities, (b) able to
bear the economic risks of such an investment and (c) an "accredited
investor" within the meaning if Rule 501(a) promulgated pursuant to the
Act.
4. We have not and will not nor have we authorized or will
authorize any person to (a) offer, pledge, sell, dispose of or otherwise
transfer any Rule 144A Securities, any interest in any Rule 144A Securities
or any other similar security from any person in any manner, (b) solicit
any offer to buy or to accept a pledge, disposition or other transfer of
any Rule 144A Securities, any interest in any Rule 144A Securities or any
other similar security from any person in any manner, (c) otherwise
approach or negotiate with respect to any Rule 144A Securities, any
interest in any Rule 144A Securities or any other similar security from any
person in any manner, (d) make any general solicitation by means of general
advertising or in any other manner, or (e) take any other action, that (as
to any of (a) through (e) above) would constitute a distribution of the
Rule 144A Securities under the Act, that would render the disposition of
any Rule 144A Securities a violation of Section 5 of the Act or any state
securities law, or that would require registration or qualification
pursuant thereto. We will not sell or otherwise transfer any of the Rule
144A Securities, except in compliance with the provisions Agreement.
5. We
(a) (1) are not an employee benefit or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code") (a "Plan"), or any other
person (including an investment manager, a named fiduciary or a trustee of
any Plan) acting, directly or indirectly, on behalf of or purchasing any
Rule 144A Securities with "plan assets" of any Plan within the meaning of
the Department of Labor ("DOL") regulation at 29 C.F.R. Section 2510.3-101,
or (2) (as to the Class M, B-1 or B-2 Certificates) are an insurance
company, the source of funds to be used by it to purchase the Rule 144A
Securities is an "insurance company general account" (within the meaning of
DOL Prohibited Transaction Class Exemption ("PTCE") 95-60), and the
purchase is eligible for the exemptive relief afforded under Sections I and
III of PTCE 95-60, and
(b) understand that registration of transfer of any Rule 144A
Securities to any Plan, or to any Person acting on behalf of or purchasing
any such Rule 144A Securities with "plan assets" of any Plan, may not be
made unless such Plan or Person, including the Buyer, (1) delivers an
Opinion of Counsel, addressed and satisfactory to the Trustee, the Contract
Sellers and the Servicer, to the effect that the purchase and holding of
the Rule 144A Securities by, on behalf of or with "plan assets" of such
Plan is permissible under applicable law, will not constitute or result in
any non-exempt prohibited transaction under Section 406 of ERISA or Section
4975 of the Code, and will not subject the Contract Sellers, the Servicer
or the Trustee to any obligation or liability (including
Exhibit K-2
liabilities under ERISA or Section 4975 of the Code) in addition to
those undertaken in the Agreement, or (2) (as to the Class M, B-1 or B-2
Certificates) makes the certification set forth in clause (2) of
paragraph 5(a) above.
6. We are not a non-United States person.
This document may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same document.
---------------------------------- -----------------------------------
Print Name of Seller Print Name of Buyer
By: By:
------------------------------ --------------------------------
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No. No.
------------------------------ --------------------------------
Date: Date:
---------------------------- ------------------------------
Exhibit K-3
ANNEX 1 TO EXHIBIT K
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Letter to which this certification relates with
respect to the Rule 144A Securities described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer
owned and/or invested on a discretionary basis $ (1) in securities
(except for the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in accordance
with Rule 144a and (ii) the Buyer satisfies the criteria in the category
marked below.
___ CORPORATION, ETC. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
___ BANK. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ SAVINGS AND LOAN. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto.
----------------------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
Exhibit K-4
___ BROKER-DEALER. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ INSURANCE COMPANY. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia.
___ STATE OR LOCAL PLAN. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions,
for the benefit of its employees.
___ ERISA PLAN. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security
Act of 1974.
___ INVESTMENT ADVISOR. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ SMALL BUSINESS INVESTMENT COMPANY. The Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
___ BUSINESS DEVELOPMENT COMPANY. The Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
___ TRUST FUND. The Buyer is a trust fund whose trustee is a bank or
trust company and whose participants are exclusively State or
Local Plans or ERISA Plans as defined above, and no participant
of the Buyer is an individual retirement account or an H.R. 10
(▇▇▇▇▇) plan.
3. The term "securities" as used herein does not include
(i) securities of issuers that are affiliated with the Buyer,
(ii) securities that are part of an unsold allotment to or subscription by
the Buyer, if the Buyer is a dealer, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Buyer, the
Buyer used the cost of such securities to the Buyer and did not include any
of the securities referred to in the preceding paragraph, except (i) where
the Buyer reports its securities holdings in its financial statements on
the basis of their market value, and (ii) no current information with
respect to the cost of those securities has been published. If clause
(ii) in the preceding sentence applies, the securities may be valued at
market. Further, in determining such aggregate amount, the Buyer may have
included securities owned by subsidiaries of the Buyer, but
Exhibit K-5
only if such subsidiaries are consolidated with the Buyer in its financial
statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under
the Buyer's direction. However, such securities were not included if the
Buyer is a majority-owned, consolidated subsidiary of another enterprise
and the Buyer is not itself a reporting company under the Securities
Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A
and understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on
Rule 144A.
_____ _____ Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer
agrees that, in connection with any purchase of securities sold to the
Buyer for the account of a third party (including any separate account) in
reliance on Rule 144A, the Buyer will only purchase for the account of a
third party that at the time is a "qualified institutional buyer" within
the meaning of Rule 144A. In addition, the Buyer agrees that the Buyer
will not purchase securities for a third party unless the Buyer has
obtained a current representation letter from such third party or taken
other appropriate steps contemplated by Rule 144A to conclude that such
third party independently meets the definition of "qualified institutional
buyer" set forth in Rule 144A.
7. Until the date of purchase of the Rule 144A Securities, the
Buyer will notify each of the parties to which this certification is made
of any changes in the information and conclusions herein. Until such
notice is given, the Buyer's purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Buyer is a bank or savings and loan is provided above, the
Buyer agrees that it will furnish to such parties updated annual financial
statements promptly after they become available.
------------------------------
Name of Buyer
By:
--------------------------
Name:
Title:
Date:
--------------------------
Exhibit K-6
ANNEX 2 TO EXHIBIT K
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Letter to which this certification relates with
respect to the Rule 144A Securities described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of
a Family of Investment Companies (as defined below), is such an officer of
the Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in securities
(other than the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year. For purposes of determining the amount of
securities owned by the Buyer or the Buyer's Family of Investment Companies,
the cost of such securities was used, except (i) where the Buyer or the
Buyer's Family of Investment Companies reports its securities holdings in its
financial statements on the basis of their market value, and (ii) no current
information with respect to the cost of those securities has been published.
If clause (ii) in the preceding sentence applies, the securities may be
valued at market.
___ The Buyer owned $________________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which owned
in the aggregate $_______________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers (the "Adviser") that are
affiliated (by virtue of being majority-owned subsidiaries of the same parent
or because one investment adviser is a majority-owned subsidiary of the
other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v)
Exhibit K-7
securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on
Rule 144A. In addition, the Buyer will only purchase for the Buyer's own
account.
6. Until the date of purchase of the Certificates, the
undersigned will notify the parties listed in the Rule 144A Transferee
Certificate to which this certification relates of any changes in the
information and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
---------------------------------
Name of Buyer or Adviser
By:
-----------------------------
Name:
Title:
IF AN ADVISER:
---------------------------------
Name of Buyer
Date:
Exhibit K-8
EXHIBIT L
TERMINATION AUCTION PROCEDURES
The following sets forth the auction procedures to be followed in
connection with a sale effected pursuant to Section 10.0l(b) of the Pooling
and Servicing Agreement (the "Agreement"), dated as of June 1, 1998, among
Bank of America National Trust and Savings Association, as Contract Seller,
Bank of America, FSB, acting through its division, BankAmerica Housing
Services, as Contract Seller and Servicer, and The First National Bank of
Chicago (the "Trustee"). Capitalized terms used herein that are not
otherwise defined shall have the meanings described thereto in the Agreement.
I. PRE-AUCTION PROCESS
(a) Upon receiving notice of the Auction Date, the Advisor will
initiate its general Termination Auction procedures consisting of the
following' (i) with the assistance of the Servicer, prepare a general
solicitation package along with a confidentiality agreement;
(ii) develop a list of qualified bidders, in a commercially
reasonable manner; (iii) initiate contact with all qualified bidders;
(vi) send a confidentiality agreement to all qualified bidders;
(v) upon receipt of a signed confidentiality agreement, send
solicitation packages to all interested bidders on behalf of the
Trustee; and (vi) notify the Servicer of all potential bidders and
anticipated timetable.
(b) The general solicitation package will include' (i) the prospectus
supplement and prospectus from the initial public offering of any
of the Certificates; (ii) a copy of all monthly servicing reports or
a copy of all annual servicing reports and the prior year's monthly
servicing reports; (iii) a form of a Sale and Servicing Agreement
prepared by the Trustee and the Servicer (or prepared by the Advisor
and approved by the Trustee and the Servicer); (iv) a description of
the minimum purchase price required to cause the Trustee to sell the
Contracts as set forth in Section 10.01 (a) of the Agreement; (v) a
formal bidsheet; (vi) a detailed timetable; and (vii) a preliminary
data tape of the Pool Scheduled Principal Balance as of a recent
Distribution Date reflecting the same data attributes used to create
the Cut-off Date tables for the prospectus supplement dated
June __, 1998 relating to the public offering of certain of the
Certificates. None of the Trustee, the Servicer or the Contract
Sellers shall be required to produce an updated prospectus or
prospectus supplement, and the auction procedures shall be carried
out in a manner that does not constitute a public offering of
securities.
(c) The Trustee, with the assistance of the Servicer and the
Advisor, will maintain an auction package beginning at the time of
closing of the transaction, which will contain the documents listed
under clauses (i)-(ii) of the preceding paragraph. If the Advisor
is unable to perform its role as advisor to the Trustee, the
Servicer acting in its capacity under the Agreement will select a
successor Advisor and inform the Trustee of its actions.
Exhibit L-1
(d) The Advisor will send solicitation packages to all bidders at
least 15 Business Days before the Auction Date. Bidders will be
required to submit any due diligence questions in writing to the
Advisor for determination of their relevancy, no later than 10
Business Days before the Auction Date. The Servicer and the
Advisor will be required to satisfy all relevant questions at least
five Business Days prior to the Auction Date and distribute the
questions and answers to all bidders.
II. AUCTION PROCESS
(a) The Advisor, any underwriter, or any Certificate Owner will be
allowed to bid in the Auction, but will not be required to do so.
(b) The Servicer will also be allowed to bid in the Termination
Auction if it deems appropriate, but will not be required to do so.
(c) On the Auction Date, all bids will be due by facsimile to the
offices of the Trustee by 1:00 p.m. New York City time, with the
winning bidder to be notified by 2:00 p.m. New York City time. All
acceptable bids (as described in Section 10.01 (b) of the Agreement)
will be due on a conforming basis on the bid sheet contained in the
solicitation package.
(d) If the Trustee receives fewer than two market value bids from
participants in the market for manufactured housing installment
sales contracts and installment loan contracts willing and able to
purchase the Contracts, the Trustee shall decline to consummate the
sale.
(e) Upon notification to the winning bidder, a good faith deposit
equal to one percent (1%) of the Pool Scheduled Principal Balance
will be required to be wired to the Trustee upon acceptance of the
bid. This deposit, along with any interest income attributable to
it, will be credited to the purchase price but will not be
refundable. The trustee will establish a separate account for the
acceptance of the good faith deposit, until such time as the
account is fully funded and all monies are transferred into the
Collection Account, such time not to be later than one Business Day
before the related Distribution Date (as described above).
(f) The winning bidder will receive on the Auction Date a copy of
the draft Sale and Servicing Agreement and Servicer's
Representations and Warranties (which shall be substantially
identical to the representations and warranties set forth in
Section 3.01 of the Agreement).
(g) The Advisor will provide to the Trustee a letter concluding
whether or not the winning bid is a fair market value bid. The
Advisor will also provide such letter if it is the winning bidder.
In the case where the Advisor or the Servicer is the winning bidder
it will provide for market comparables and valuations in its letter.
(h) The Auction will stipulate the Servicer be retained to service the
Contracts sold pursuant to the terms of the Sale and Servicing
Agreement.
Exhibit L-2
(i) The Auction will stipulate that such sale and consequent
termination of the Trust Fund must constitute a "qualified
liquidation" of the Trust Fund under Section 860F of the Code,
including the requirement that such liquidation take place over a
period not to exceed 90 days. The Trustee may, in its discretion,
require that the purchaser of the Contracts provide the Trustee
with an Opinion of Counsel to that effect.
Exhibit L-3