Exhibit 4.2
POOLING AND SERVICING AGREEMENT
among
ACCESS FINANCIAL LENDING CORP.,
as Servicer,
ACCESS FINANCIAL RECEIVABLES CORP.,
as Seller,
and
____________________,
as Trustee
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
TRUST ______
MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATED PASS-THROUGH CERTIFICATES,
SERIES ______
Dated as of ___ _, ____
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS................................................................... 1
SECTION 1.01. General......................................................... 1
SECTION 1.02. Specific Terms.................................................. 1
ARTICLE II ESTABLISHMENT OF TRUST; TRANSFER OF
CONTRACTS..................................................................... 33
SECTION 2.01. Closing......................................................... 33
SECTION 2.02. [reserved]...................................................... 34
SECTION 2.03. Acceptance by Trustee........................................... 34
SECTION 2.04. REMIC Provisions................................................ 34
SECTION 2.05. Conveyance of the Subsequent
Contracts....................................................... 37
ARTICLE III REPRESENTATIONS AND WARRANTIES................................................ 39
SECTION 3.01. Representations and Warranties
Regarding the Company........................................... 39
SECTION 3.02. Representations and Warranties
Regarding the Seller............................................ 40
SECTION 3.03. [reserved]...................................................... 41
SECTION 3.04. Representations and Warranties of
the Company Regarding the
Contracts....................................................... 41
SECTION 3.05. Repurchase of Contracts or
Substitution of Contracts for
Breach of Representations and
Warranties...................................................... 42
ARTICLE IV PERFECTION OF TRANSFER AND PROTECTION OF
SECURITY INTERESTS............................................................ 42
SECTION 4.01. Custody of Contracts............................................ 42
SECTION 4.02. Filings......................................................... 43
SECTION 4.03. Name Change or Relocation....................................... 43
SECTION 4.04. Executive Office................................................ 44
SECTION 4.05. Costs and Expenses.............................................. 44
ARTICLE V SERVICING OF CONTRACTS........................................................ 44
SECTION 5.01. Responsibility for Contract
Administration.................................................. 44
SECTION 5.02. Standard of Care................................................ 44
SECTION 5.03. Records......................................................... 45
SECTION 5.04. Inspection; Computer Tape....................................... 45
SECTION 5.05. Certificate Account............................................. 45
SECTION 5.06. Enforcement..................................................... 47
SECTION 5.07. Trustee to Cooperate............................................ 49
SECTION 5.08. Costs and Expenses.............................................. 49
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Page
SECTION 5.09. Maintenance of Insurance........................................ 50
SECTION 5.10. Repossession.................................................... 51
SECTION 5.11. [Reserved]...................................................... 51
SECTION 5.12. Retitling; Security Interests................................... 51
SECTION 5.13. Delinquency Advances and
Servicing Advances.............................................. 52
SECTION 5.14. Pre-Funding Account and
Capitalized Interest Account.................................... 53
ARTICLE VI REPORTS AND TAX MATTERS....................................................... 55
SECTION 6.01. Monthly Reports................................................. 55
SECTION 6.02. Certificates of Servicing Officer............................... 55
SECTION 6.03. Other Data...................................................... 56
SECTION 6.04. Annual Report of Accountants.................................... 56
SECTION 6.05. Statements to Certificateholders................................ 56
SECTION 6.06. Payment of Taxes................................................ 58
ARTICLE VII SERVICE TRANSFER.............................................................. 60
SECTION 7.01. Event of Termination............................................ 60
SECTION 7.02. Transfer........................................................ 61
SECTION 7.03. Trustee to Act; Appointment of
Successor....................................................... 62
SECTION 7.04. Notification to Certificate-
holders......................................................... 62
SECTION 7.05. Effect of Transfer.............................................. 63
ARTICLE VIII PAYMENTS...................................................................... 63
SECTION 8.01. Monthly Payments................................................ 63
SECTION 8.02. Permitted Withdrawals from the
Certificate Account............................................. 64
SECTION 8.03. Payments........................................................ 65
ARTICLE IX THE CERTIFICATES.............................................................. 69
SECTION 9.01. The Certificates................................................ 69
SECTION 9.02. Registration of Transfer and
Exchange of Certificates........................................ 70
SECTION 9.03. No Charge; Disposition of Void
Certificates.................................................... 74
SECTION 9.04. Mutilated, Destroyed, Lost or
Stolen Certificates............................................. 74
SECTION 9.05. Persons Deemed Owners........................................... 74
SECTION 9.06. Access to List of Certificate-
holders' Names and Addresses.................................... 75
SECTION 9.07. Authenticating Agents........................................... 75
ARTICLE X INDEMNITIES................................................................... 75
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Page
SECTION 10.01. Company's Indemnities........................................... 75
SECTION 10.02. Liabilities to Obligors......................................... 76
SECTION 10.03. Tax Indemnification............................................. 76
SECTION 10.04. Servicer's Indemnities.......................................... 76
SECTION 10.05. Operation of Indemnities........................................ 77
SECTION 10.06. REMIC Tax Matters............................................... 77
ARTICLE XI THE TRUSTEE................................................................... 77
SECTION 11.01. Duties of Trustee............................................... 77
SECTION 11.02. Certain Matters Affecting the
Trustee......................................................... 78
SECTION 11.03. Trustee Not Liable for
Certificates or Contracts....................................... 79
SECTION 11.04. Rights of Certificateholders to
Direct Trustee and to Waive Event
of Termination.................................................. 80
SECTION 11.05. The Servicer to Pay Trustee's
Fees and Expenses............................................... 80
SECTION 11.06. Eligibility Requirements for
Trustee......................................................... 81
SECTION 11.07. Resignation or Removal of Trustee............................... 81
SECTION 11.08. Successor Trustee............................................... 82
SECTION 11.09. Merger or Consolidation of
Trustee......................................................... 82
SECTION 11.10. Tax Returns..................................................... 83
SECTION 11.11. Obligor Claims.................................................. 83
SECTION 11.12. Appointment of Co-Trustee or
Separate Trustee................................................ 84
SECTION 11.13. Agents of Trustee............................................... 85
ARTICLE XII MISCELLANEOUS................................................................. 85
SECTION 12.01. Servicer Not to Assign Duties or
Resign; Delegation of Servicing
Duties.......................................................... 85
SECTION 12.02. Maintenance of Office or Agency................................. 86
SECTION 12.03. Termination..................................................... 86
SECTION 12.04. Acts of Certificateholders...................................... 90
SECTION 12.05. Calculations.................................................... 91
SECTION 12.06. Assignment or Delegation........................................ 91
SECTION 12.07. Amendment....................................................... 91
SECTION 12.08. Notices......................................................... 93
SECTION 12.09. Merger and Integration.......................................... 94
SECTION 12.10. Headings........................................................ 94
SECTION 12.11. Governing Law................................................... 94
iii
EXHIBITS A-1, -- Form of Class A-1, A-2, A-3, A-4, A-5
A-2, A-3, A-4 and A-6 Certificates
A-5 and A-6
EXHIBITS B-1 -- Form of Class B-1 and B-2 Certificate
and B-2
EXHIBIT C -- Form of Class C Certificate
EXHIBIT D-1 -- Form of Class RL and RU Certificate
and D-2
EXHIBIT E -- Form of Assignment
EXHIBIT F -- Form of Trustee's Acknowledgment
EXHIBIT G -- Form of Power of Attorney
EXHIBIT H -- Form of Monthly Report
EXHIBIT I -- Form of Certificate of Servicing
Officer
EXHIBIT J -- Form of Report on Agreed Upon
Procedures
EXHIBIT K -- Form of Representation Letter
EXHIBIT L -- Form of Request for Release
EXHIBIT M -- Auction Procedures
iv
POOLING AND SERVICING AGREEMENT, dated as of ______ ____,
among ACCESS FINANCIAL RECEIVABLES CORP., a Delaware corporation, as Seller (the
"Seller"), ACCESS FINANCIAL LENDING CORP., a Delaware corporation (the
"Company"), as Servicer (the "Servicer"), and _______ __________, a ____________
banking corporation, as Trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Seller is a bankruptcy-remote company formed for
the sole purpose of transferring certain assets to the Access Financial
Manufactured Housing Contract Trust ______ (the "Trust") established pursuant to
this Agreement;
WHEREAS, the Seller has entered into the Loan Sale Agreement,
dated as of ___________, by and between the Seller and the Company for the
purpose of acquiring from the Company the portfolio of the Contracts secured by
certain Manufactured Homes;
WHEREAS, the Company is willing to act as the Servicer
hereunder; and
WHEREAS, the parties hereto wish to set forth the terms and
conditions pursuant to which the Trust will acquire the Contracts and the
Company will manage and service the Contracts;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter set forth, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. General. For the purpose of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires,
the terms defined in this Article include the plural as well as the singular,
the words "herein," "hereof" and "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular Article, Section or
other subdivision, and Section references refer to Sections of the Agreement.
SECTION 1.02. Specific Terms.
"Accelerated Principal" means, as to any Remittance Date, the
lesser of (x) the excess, if any, on such Remittance Date of (i) the Required
Overcollateralization Amount over (ii) the Overcollateralization Amount as of
such Remittance
Date, calculated for purposes of this definition after giving effect to all
distributions of the Formula Principal Distribution Amount pursuant to Section
8.03(a)(1)-(7) on such Remittance Date, but without taking into account the
"Accelerated Principal" component thereof and (y) the sum of (i) the Class C
Distribution Amount as of such Remittance Date and (ii) if the Company or a
wholly-owned subsidiary of the Company acted as the Servicer for the immediately
preceding Collection Period, the Monthly Servicing Fee as of such Remittance
Date.
"Addition Notice" means, with respect to the transfer of
Subsequent Contracts to the Trust pursuant to Section 2.05(b) of this Agreement,
notice, which shall be given not later than five Business Days prior to the
related Subsequent Transfer Date, of the Company's designation of Subsequent
Contracts to be sold to the Trust and the aggregate Pool Scheduled Principal
Balance of such Subsequent Contracts.
"Advance Payment" means any payment by an Obligor in advance
of the Collection Period in which it would be due under such Contract and which
payment is not a Principal Prepayment.
"Advisor" has the meaning set forth in Section 12.03(d)
hereof.
"Affiliate" of any specified Person means 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.
"Agreement" means this Pooling and Servicing Agreement.
"Amount Available" means, as to any Remittance Date, an amount
equal to (a) the sum of (i) any amounts on deposit in the Certificate Account as
of the close of business on the day preceding the related Determination Date and
(ii) any amounts required to be deposited in the Certificate Account on the
Business Day immediately preceding such Remittance Date pursuant to Section 5.09
and Section 5.13(a), reduced by (b) the sum, as of such date, of (x) the Amount
Held for Future Distribution on such date and (y) amounts permitted to be
withdrawn by the Trustee from the Certificate Account pursuant to clauses (b) -
(e), inclusive, of Section 8.02 on such Remittance Date.
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"Amount Held For Future Distribution" means, as to any
Determination Date, the total of the amounts held in the Certificate Account on
the day preceding such Determination Date on account of any Advance Payments
then on deposit in the Certificate Account, together with amounts then on
deposit in the Certificate Account representing (x) Scheduled Payments on the
Contracts due during the Collection Period in which such Determination Date
occurs and (y) unscheduled collections received during the Collection Period in
which such Determination Date occurs.
"Applicants" has the meaning assigned in Section 9.06.
"Assumption Fee" means any assumption or other similar fee
paid by the Obligor on a Contract.
"Auction Call Date" means the first Remittance Date on which
the Servicer could exercise its optional termination right as provided in
Section 12.03(c) hereof.
"Authenticating Agent" means any authenticating agent
appointed pursuant to Section 9.07.
"Average Sixty-Day Delinquency Ratio Test" means, to be
considered "satisfied" for any Remittance Date, that the arithmetic average of
the Sixty-Day Delinquency Ratios for such Remittance Date and for the two
immediately preceding Remittance Dates is less than or equal to __.
"Average Thirty-Day Delinquency Ratio Test" means, to be
considered "satisfied" for any Remittance Date, that the arithmetic average of
the Thirty-Day Delinquency Ratios for such Remittance Date and for the two
immediately preceding Remittance Dates is less than or equal to __.
"Book-Entry Certificate" means 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).
"Business Day" means any day other than (a) a Saturday or a
Sunday, or (b) another day on which banking institutions in the city in which a
Person is taking action hereunder are authorized or obligated by law, executive
order or governmental decree to be closed.
"Capitalized Interest Account" means the Capitalized Interest
Account established in accordance with Section 7.2 hereof and maintained by the
Trustee.
3
"Capitalized Interest Requirement" means, with respect to the
Remittance Dates occurring in , and of , the difference, if any, between (x) the
interest due on the Certificates on such Remittance Date and (y) the sum of (i)
one month's interest on the aggregate Pool Scheduled Principal Balance of all
Contracts as of the close of business on the last day of the immediately
preceding Remittance Period, calculated at the Weighted Average Pass-Through
Rate as of such Remittance Date and (ii) any Pre- Funding Earnings to be
transferred to the Certificate Account on such Remittance Date pursuant to
Section 5.14 hereof.
"Certificate" means a Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate, Senior, Class A-6, Class B, Class C
or Residual Certificate.
"Certificate Account" means the account established and
maintained pursuant to Section 5.05.
"Certificate Interest Distribution Amount" means, as to any
Remittance Date, the sum of the Senior Interest Distribution Amount, the Class
A-6 Interest Distribution Amount, the Class B-1 Interest Distribution Amount and
the Class B-2 Interest Distribution Amount for such Remittance Date.
"Certificate Owner" means the person who is the beneficial
owner of a Book-Entry Certificate.
"Certificate Principal Balance" means, with respect to the
Class A-1 Certificates, the Class A-1 Principal Balance; with respect to the
Class A-2 Certificates, the Class A-2 Principal Balance; with respect to the
Class A-3 Certificates, the Class A-3 Principal Balance; with respect to the
Class A-4 Certificates, the Class A-4 Principal Balance; with respect to the
Class A-5 Certificates, the Class A-5 Principal Balance; with respect to the
Class A-6 Certificates, the Class A-6 Principal Balance; with respect to the
Class B-1 Certificates, the Class B-1 Principal Balance; and with respect to the
Class B-2 Certificates, the Class B-2 Principal Balance.
"Certificate Register" means the register maintained pursuant
to Section 9.02(a).
"Certificate Registrar" or "Registrar" means the registrar
appointed pursuant to Section 9.02(a).
"Certificateholder" or "Holder" means the person in whose name
a Certificate is registered on the Certificate Register, except that, solely for
the purposes of giving any consent, waiver, request or demand pursuant to this
Agreement, any Certificate registered in the name of the Company or any
Affiliate shall be deemed not to be outstanding and the
4
Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite Percentage Interest necessary to effect any
such consent, request, waiver or demand has been obtained; provided, however,
that, solely for the purpose of determining whether the Trustee is entitled to
rely upon any such consent, waiver, request or demand, only Certificates which
the Trustee knows to be so owned shall be so disregarded.
"Class," "Senior Class," "Class A-6," "Class B" or "Class C"
means pertaining to each Class of Senior Certificates, Class A-6 Certificates,
Class B Certificates and/or Class C Certificates, as the case may be.
"Class A Principal Balance Test" will be considered
"satisfied" for any Remittance Date, that the fraction, expressed as a
percentage, (x) the numerator of which is the sum of (i) the Senior Principal
Balance on such Remittance Date, before taking into account all distributions of
principal to the Senior Certificateholders on such Remittance Date and (ii) the
Class A-6 Principal Balance on such Remittance Date, before taking into account
all distributions of principal to Class A-6 Certificateholders on such
Remittance Date and (y) the denominator of which is the Pool Scheduled Principal
Balance as of the close of the second preceding Collection Period, is less than
____%.
"Class A OC Stepdown Funded Portion" means, with respect to
any Remittance Date, the lesser of (x) the excess of (i) the OC Stepdown Amount
for such Remittance Date over (ii) the Class B OC Stepdown Funded Portion for
such Remittance Date and (y) the Senior Percentage of the Formula Principal
Distribution Amount for such Remittance Date.
"Class A-1 Certificate" means any one of the Class A-1
Certificates authenticated by the Trustee substantially in the form set forth in
Exhibit A-1 hereto and evidencing an interest designated as a "regular interest"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1 Principal Balance" means, as to any Remittance
Date, the Original Class A-1 Principal Balance less all amounts previously
distributed to Holders of Class A-1 Certificates on account of principal.
"Class A-1 Remittance Rate" means ____% per annum, computed on
the basis of a 360-day year of twelve 30-day months, payable monthly on each
Remittance Date, subject to a maximum rate equal to the Weighted Average Net
Contract Rate applicable to such Remittance Date.
"Class A-2 Certificate" means any one of the Class A-2
Certificates authenticated by the Trustee substantially in the form set forth in
Exhibit A-2 hereto and evidencing an
5
interest designated as a "regular interest" in the Upper-Tier REMIC for purposes
of the REMIC Provisions.
"Class A-2 Principal Balance" means, as to any Remittance
Date, the Original Class A-2 Principal Balance less all amounts previously
distributed to Holders of Class A-2
Certificates on account of principal.
"Class A-2 Remittance Rate" means ____% per annum, computed on
the basis of a 360-day year of twelve 30-day months, payable monthly on each
Remittance Date, subject to a maximum rate equal to the Weighted Average Net
Contract Rate applicable to such Remittance Date.
"Class A-3 Certificate" means any one of the Class A-3
Certificates authenticated by the Trustee substantially in the form set forth in
Exhibit A-3 hereto and evidencing an interest designated as a "regular interest"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3 Principal Balance" means, as to any Remittance
Date, the Original Class A-3 Principal Balance less all amounts previously
distributed to Holders of Class A-3
Certificates on account of principal.
"Class A-3 Remittance Rate" means _____% per annum, computed
on the basis of a 360-day year of twelve 30-day months, payable monthly on each
Remittance Date, subject to a maximum rate equal to the Weighted Average Net
Contract Rate applicable to such Remittance Date.
"Class A-4 Certificate" means any one of the Class A-4
Certificates authenticated by the Trustee substantially in the form set forth in
Exhibit A-4 hereto and evidencing an interest designated as a "regular interest"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-4 Principal Balance" means, as to any Remittance
Date, the Original Class A-4 Principal Balance less all amounts previously
distributed to Holders of Class A-4
Certificates on account of principal.
"Class A-4 Remittance Rate" means _____% per annum, computed
on the basis of a 360-day year of twelve 30-day months, payable monthly on each
Remittance Date, subject to a maximum rate equal to the Weighted Average Net
Contract Rate applicable to such Remittance Date.
"Class A-5 Certificate" means any one of the Class A-5
Certificates authenticated by the Trustee substantially in the form set forth in
Exhibit A-5 hereto and evidencing an interest designated as a "regular interest"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
6
"Class A-5 Principal Balance" means, as to any Remittance
Date, the Original Class A-5 Principal Balance less all amounts previously
distributed to Holders of Class A-5 Certificates on account of principal.
"Class A-5 Remittance Rate" means _____% per annum, computed
on the basis of a 360-day year of twelve 30-day months, payable monthly on each
Remittance Date, subject to a maximum rate equal to the Weighted Average Net
Contract Rate applicable to such Remittance Date.
"Class A-6 Certificate" means any one of the Class A-6
Certificates authenticated by the Trustee substantially in the form set forth in
Exhibit A-6 hereto and evidencing an interest designated as a "regular interest"
in the Upper-Tier REMIC for the purposes of the REMIC Provisions.
"Class A-6 Distribution Amount" means, as to any Remittance
Date, the lesser of (a) the Amount Available less the Senior Distribution Amount
and (b) the Class A-6 Formula Distribution Amount for such Remittance Date.
"Class A-6 Formula Distribution Amount" means, as to any
Remittance Date, an amount equal to the sum of (a) the Class A-6 Interest
Distribution Amount for such Remittance Date, and (b) if such Remittance Date is
on or after the date on which the Senior Principal Balance has been reduced to
zero, the Senior Percentage of the Formula Principal Distribution Amount;
provided, however, that the aggregate of all amounts distributed for all
Remittance Dates pursuant to clause (b) shall not exceed the Original Class A-6
Principal Balance.
"Class A-6 Interest Distribution Amount" means, as to the
Class A-6 Certificates and any Remittance Date, the sum of (i) one month's
interest at the Class A-6 Remittance Rate on the Class A-6 Principal Balance
calculated immediately prior to such Remittance Date and (ii) the Unpaid Class
A-6 Interest Shortfall, if any, with respect to such Remittance Date.
"Class A-6 Principal Balance" means, as to any Remittance
Date, the Original Class A-6 Principal Balance less all amounts previously
distributed to Holders of Class A-6 Certificates on account of principal.
"Class A-6 Interest Deficiency Amount" means, as to the Class
A-6 Certificates and any Remittance Date, the excess, if any, of (i) the Class
A-6 Interest Distribution Amount on such Remittance Date and (ii) the amount
available for distribution to the Class A-6 Certificateholders pursuant to
Section 8.03(a)(4)(i) and (ii) on such Remittance Date.
7
"Class A-6 Interest Shortfall" means, as of any Remittance
Date, the difference, if any, between (A) the sum of (1) the amount distributed
to Holders of the Class A-6 Certificates on such Remittance Date pursuant to
Section 8.03(a)(4)(i) and (ii) and (2) any amount distributed to the Holders of
the Class A-6 Certificates by virtue of the operation of Section 8.03(b) and (B)
the Class A-6 Interest Distribution Amount.
"Class A-6 Remittance Rate" means _____% per annum, computed
on the basis of a 360-day year of twelve 30-day months, payable monthly on such
Remittance Date, subject to a maximum rate equal to the Weighted Average Net
Contract Rate for such Remittance Date.
"Class B Certificate" means any one of the Class B-1 and Class
B-2 Certificates authenticated by the Trustee substantially in the form set
forth in Exhibits B-1 and B-2 hereto and evidencing an interest designated as a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class B Cross-over Date" means the later of:
(A) the Remittance Date in _______ and
(B) the first Remittance Date on which the sum of (i) the
Senior Principal Balance on such Remittance Date
(before taking into account any distributions to be
made on such Remittance Date) and (ii) the Class A-6
Principal Balance on such Remittance Date (before
taking into account any distributions to be made on
such Remittance Date) (such sum expressed as a
percentage of the Pool Scheduled Principal Balance as
of the end of the second preceding Collection Period)
is less than ______.
"Class B Percentage" means:
(i) as to any Remittance Date prior to the Class B
Cross-over Date, 0%
(ii) as to any Remittance Date on or after the Class B
Cross-Over Date and on which any Class B Principal
Distribution Test is not satisfied, 0%,
(iii) subject to clause (iv) below, as to any Remittance
Date on or after the Class B Cross-over Date and on
which each Class B Principal Distribution Test is
satisfied, the
8
percentage equal to 100% minus the Senior Percentage
for such Remittance Date and
(iv) as to any Remittance Date after the Senior Principal
Balance and the Class A-6 Principal Balance have both
been reduced to zero, 100%.
"Class B OC Stepdown Funded Portion" means, with respect to
any Remittance Date, the lesser of (x) the OC Stepdown Amount for such
Remittance Date and (y) the Class B Percentage of the Formula Principal
Distribution Amount of such Remittance Date.
"Class B Portion of Class B Principal Test Maintenance Amount"
means, with respect to any Remittance Date, the excess of (x) the Class B
Principal Test Maintenance Amount for such Remittance Date over (y) the Class C
Portion of Class B Principal Test Maintenance Amount for such Remittance Date.
"Class B Principal Test Maintenance Amount" means, with
respect to any Remittance Date on and prior to the Remittance Date on which both
the Senior Principal Balance and the Class A-6 Principal Balance have been
reduced to zero, the excess of (x) __________ over (y) the sum of the Class B
Principal Balance and the Overcollateralization Amount on such Remittance Date,
after taking into account all distributions to be made with respect to the Class
B and Class C Certificates on such Remittance Date (other than any deductions
from such distributions on account of the Class C Portion of the Class B
Principal Test Maintenance Amount or the Class B Portion of the Class B
Principal Test Maintenance Amount).
"Class B Principal Balance" means, as to any Remittance Date,
the sum of the Class B-1 Principal Balance and the Class B-2 Principal Balance.
"Class B Principal Balance Test" will be considered
"satisfied" for any Remittance Date, that the sum of the Class B Principal
Balance and the Overcollateralization Amount as of such Remittance Date, before
giving effect to distributions on such Remittance Date, is greater than or equal
to __________.
"Class B Principal Distribution Test" means, as to any
Remittance Date, each of the Average Sixty-Day Delinquency Ratio Test, the
Average Thirty-Day Delinquency Ratio Test, the Cumulative Realized Losses Test,
the Class B Principal Balance Test, the Class A Principal Balance Test and the
Current Realized Losses Test.
"Class B-1 Certificate" means any one of the Class B-1
Certificates authenticated by the Trustee substantially in the form set forth in
Exhibit B-1 hereto and evidencing an
9
interest designated as a "regular interest" in the Upper-Tier REMIC for purposes
of the REMIC provisions.
"Class B-1 Distribution Amount" means, as to any Remittance
Date, the lesser of (a) the Amount Available less the sum of the Senior
Distribution Amount and the Class A-6 Distribution Amount and (b) the Class B-1
Formula Distribution Amount for such Remittance Date.
"Class B-1 Formula Distribution Amount" means, as to any
Remittance Date, an amount equal to the sum of (a) the Class B-1 Interest
Distribution Amount for such Remittance Date, and (b) if such Remittance Date is
on or after the Class B Cross-over Date, the Class B Percentage of the Formula
Principal Distribution Amount; provided, however, that the aggregate of all
amounts distributed for all Remittance Dates pursuant to clause (b) shall not
exceed the Original Class B-1 Principal Balance.
"Class B-1 Interest Deficiency Amount" means, as to the Class
B-1 Certificates and any Remittance Date, the excess, if any, of (i) the Class
B-1 Interest Distribution Amount for such Remittance Date and (ii) the amount
available for distribution to the Class B-1 Certificateholders pursuant to
Section 8.03(a)(5)(i) and (ii) on such Remittance Date.
"Class B-1 Interest Distribution Amount" means, as to any
Remittance Date, the sum of (i) one month's interest at the Class B-1 Remittance
Rate on the Class B-1 Principal Balance as calculated immediately prior to such
Remittance Date and (ii) the "Unpaid Class B-1 Interest Shortfall", if any, with
respect to such Remittance Date.
"Class B-1 Interest Shortfall" means, as to any Remittance
Date, the difference, if any, between (A) the sum of (1) the amount distributed
to Holders of the Class B-1 Certificates pursuant to Section 8.03(a)(a)(5)(i)
and (ii), and (2) any amount distributed to the Holders of the Class B-1
Certificates by virtue of the operation of Section 8.03(b) and (B) the Class B-1
Interest Distribution Amount.
"Class B-1 Principal Balance" means, as to any Remittance
Date, the original Class B-1 Principal Balance less all amounts previously
distributed to Holders of Class B-1 Certificates on account of principal.
"Class B-1 Remittance Rate" means _____% per annum, computed
on the basis of a 360-day year of twelve 30-day months, payable monthly on each
Remittance Date, subject to a maximum rate equal to the Weighted Average Net
Contract Rate applicable to such Remittance Date.
"Class B-2 Certificate" means the Class B-2 Certificate
authenticated by the Trustee substantially in the
10
form set forth in Exhibit B-2 hereto and evidencing an interest designated as a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC provisions.
"Class B-2 Distribution Amount" means, as to any Remittance
Date, the lesser of (a) the Amount Available less the sum of the Senior
Distribution Amount, the Class A-6 Distribution Amount and the Class B-1
Distribution Amount and (b) the Class B-2 Formula Distribution Amount for such
Remittance Date.
"Class B-2 Formula Distribution Amount" means, as to any
Remittance Date, an amount equal to the sum of (a) the Class B-2 Interest
Distribution Amount for such Remittance Date and (b) if such Remittance Date is
after the Class B-1 Principal Balance has been reduced to zero, the Class B
Percentage of the Formula Principal Distribution Amount; provided, however, that
the aggregate of all amounts distributed for all Remittance Dates pursuant to
clause (b) shall not exceed the Original Class B-2 Principal Balance.
"Class B-2 Interest Deficiency Amount" means, as to the Class
B-2 Certificates and any Remittance Date, the excess, if any, of (i) the Class
B-2 Interest Distribution Amount for such Remittance Date over (ii) the amount
available for distribution to the Class B-2 Certificateholders pursuant to
Section 8.03(a)(6)(i) and (ii) on such Remittance Date.
"Class B-2 Interest Distribution Amount" means, as to any
Remittance Date, the sum of (i) one month's interest at the Class B-2 Remittance
Rate on the Class B-2 Principal Balance as calculated immediately prior to such
Remittance Date and (ii) the Unpaid Class B-2 Interest Shortfall, if any, with
respect to such Remittance Date.
"Class B-2 Interest Shortfall" means, as to any Remittance
Date, the difference, if any, between (A) the sum of (1) the amount distributed
to the Holders of the Class B-1 Certificates pursuant to Section 8.03(a)(6)(i)
and (ii), and (2) any amount distributed to the Holders of the Class B-2
Certificates by virtue of the operation of Section 8.03(b) and (B) the Class B-2
Interest Distribution Amount.
"Class B-2 Principal Balance" means, as to any Remittance
Date, the original Class B-2 Principal Balance less all amounts previously
distributed to Holders of Class B-2 Certificates on account of principal.
"Class B-2 Remittance Rate" means that annual percentage rate
of interest set forth in a written notice delivered to the Trustee and the
Company by the Servicer within ten consecutive days of the Closing Date,
computed on the basis of a 360-day year of twelve 30-day mouths, payable monthly
on each Remittance Date, subject to a maximum rate
11
equal to the Weighted Average Net Contract Rate applicable to such Remittance
Date.
"Class C Certificate" means the Class C Certificate
authenticated by the Trustee substantially in the form set forth in Exhibit C
hereto and evidencing an interest designated as a "regular interest" in the
Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Distribution Amount" means, as to the Class C
Certificates and any Remittance Date, the lesser of (x) the Class C Formula
Distribution Amount and (y) the Amount Available after making the distributions
described in clauses (1)-(9) of Section 8.03(a) on such Remittance Date.
"Class C Formula Distribution Amount" means, as to the Class C
Certificates and any Remittance Date, the excess, if any, of (i) the product of
(x) one-twelfth of the Weighted Average Net Contract Rate as of the beginning of
the immediately preceding Collection Period and (y) the Pool Scheduled Principal
Balance as of the beginning of the immediately preceding Collection Period over
(ii) the Certificate Interest Distribution Amount for such Remittance Date.
"Class C Portion of Class B Principal Test Maintenance Amount"
means, with respect to any Remittance Date, the lesser of (x) the Class B
Principal Test Maintenance Amount for such Remittance Date and (y) the OC
Stepdown Amount for such Remittance Date.
"Class LT1 Certificates" means, the uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section
2.04 hereof.
"Class LT2 Certificates" means, the uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section
2.04 hereof.
"Class LT3 Certificates" means, the uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section
2.04 hereof.
"Class LT4 Certificates" means, the uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section
2.04 hereof.
"Class LT5 Certificates" means, the uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section
2.04 hereof.
"Class LT6 Certificates" means, the uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section
2.04 hereof.
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"Class LT7 Certificates" means, the uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section
2.04 hereof.
"Class LT8 Certificates" means, the uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section
2.04 hereof.
"Class RL Certificates" means, those certificates representing
certain residual rights to distributions from the Lower-Tier REMIC in
substantially the form set forth as Exhibit D-1 hereto.
"Class RU Certificates" means, those certificates representing
certain residual rights to distributions from the Upper-Tier REMIC in
substantially the form set forth as Exhibit D-2 hereto.
"Closing Date" means ___________.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Period" means, with respect to any Remittance
Date, the calendar month prior to the month in which such Remittance Date
occurs.
"Computer Tape" means the computer tape or other electronic
format generated by the Company which provides information relating to the
Contracts and which was used by the Company in selecting the Contracts.
"Contracts" means the manufactured housing installment sales
contracts and installment loan agreements, including any Land Secured Contracts,
described in the List of Contracts and constituting part of the corpus of the
Trust, which Contracts are to be assigned and conveyed by the Seller to the
Trust on the Closing Date; such term includes, without limitation, all related
security interests and any and all rights to receive payments which are due
pursuant thereto on or after the Cut-off Date, but excluding any rights to
receive payments which are due pursuant thereto prior to the Cut-off Date. The
term "Contract" includes the terms "Initial Contract" and "Subsequent Contract".
"Contract File" means, as to each Contract: (a) the original
copy of the Contract, (b) either (i) the original title document for the related
Manufactured Home or a duplicate certified by the appropriate governmental
authority which issued the original thereof or the application for such title
document or (ii) if the laws of the jurisdiction in which the related
Manufactured Home is located do not provide for the issuance of title documents
for manufactured housing, other evidence of ownership of the related
Manufactured Home
13
which is customarily relied upon in such jurisdiction as evidence of title to a
manufactured housing unit, (c) evidence of one or more of the following types of
perfection of the security interest in the related Manufactured Home granted by
such Contract, as appropriate: (i) notation of such security interest on the
title document, (ii) a financing statement meeting the requirements of the UCC,
with evidence of filing indicated thereon, or (iii) such other evidence of
perfection of a security interest in a manufactured housing unit as is
customarily relied upon in the jurisdiction in which the related Manufactured
Home is located, (d) the assignment of the Contract from the originator (if
other than the Company) to the Company and (e) any extension, modification or
waiver agreement(s). "Contract File" means, as to each Land in Lieu or Land-Home
Contract, (a) - (e) above and the original related Mortgage with evidence of
recording thereon.
"Contract Rate" means, with respect to any particular
Contract, the rate of interest specified in that Contract and computed on a
precomputed basis with an actuarial rebate of unearned interest upon prepayment.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of the execution of this Agreement is
located at the address set forth in Section 12.08.
"Counsel for the Company" means _________________ or other
legal counsel for the Company.
"Cumulative Realized Losses" means, as to any Remittance Date,
the sum of the Realized Losses for that Remittance Date and each preceding
Remittance Date since the Cut-off Date.
"Cumulative Realized Losses Test" means, to be considered
"satisfied" for any Remittance Date:
(i) if such Remittance Date occurs between ____ _______
and ____________, that the Cumulative Realized Losses
as of such Remittance Date are less than or equal to
__% of the Cut-off Date Pool Principal Balance;
(ii) if such Remittance Date occurs between ____ _______
and ____________, that the Cumulative Realized Losses
as of such Remittance Date are less than or equal to
__% of the Cut-off Date Pool Principal Balance; and
(iii) if such Remittance Date occurs after _______ ____
that the Cumulative Realized Losses as of such
Remittance Date are less than or equal to
14
__% of the Cut-off Date Pool Principal
Balance.
"Current Realized Loss Ratio" means, as to any Remittance
Date, a fraction, expressed as a percentage, the numerator of which is the
aggregate Realized Losses during the twelve immediately preceding Collection
Periods, and the denominator of which is the arithmetic average of the Pool
Scheduled Principal Balance as of the last day of the twelfth preceding
Collection Period and the Pool Scheduled Principal Balance as of the close of
the related Collection Period.
"Current Realized Losses Test" means, to be considered
"satisfied" for any Remittance Date, that the Current Realized Loss Ratio for
such Remittance Date is less than or equal to _____% if Access Financial Lending
Corp. (or any permitted successor thereto) is the Servicer, or _____%, if it is
not then the Servicer.
"Cut-off Date" means ___________.
"Cut-off Date Pool Principal Balance" means ___________.
"Cut-off Date Principal Balance" means, as to any Contract,
the unpaid principal balance thereof at the Cut-off Date after giving effect to
all installments of principal due prior thereto.
"Defaulted Contract" means a Contract with respect to which
the Servicer has commenced repossession or foreclosure procedures, made a sale
of such Contract to a third party for repossession, foreclosure or other
enforcement, or as to which there was a payment delinquent 180 or more days
(excluding any Contract deemed delinquent solely because the Obligor's required
monthly payment was reduced as a result of bankruptcy or similar proceedings).
"Delinquency Advance" shall have the meaning set forth in
Section 5.13(a) hereof.
"Depository" means the initial Depository, The Depository
Trust Company, the nominee of which is Cede & Co., as the registered Holder of:
(i) one Class A-1 Certificate evidencing ___________
in initial aggregate principal balance of the
Class A-1 Certificates,
(ii) one Class A-2 Certificate evidencing __________ in
initial aggregate principal balance of the Class
A-2 Certificates,
15
(iii) one Class A-3 Certificate evidencing __________ in
initial aggregate principal balance of the Class
A-3 Certificates,
(iv) one Class A-4 Certificate evidencing __________ in
initial aggregate principal balance of the Class
A-4 Certificates,
(v) one Class A-5 Certificate evidencing ___________
in initial aggregate principal balance of the
Class A-5 Certificates,
(vi) one Class A-6 Certificate evidencing __________ in
initial aggregate principal balance of the Class
A-6 Certificates, and
(vii) one Class B-1 Certificate evidencing __________ in
initial aggregate principal balance of the Class
B-1 Certificates,
and any permitted successor depository. 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 Participant" means 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" means the third Business Day prior to
each Remittance Date during the term of this Agreement.
"Disqualified Organization" has the meaning assigned in
Section 9.02(b)(3).
"Distribution Amount" means, with respect to the Senior
Certificates, the Senior Distribution Amount; with respect to the Class A-6
Certificates, the Class A-6 Distribution Amount; with respect to the Class B-1
Certificates, the Class B-1 Distribution Amount; with respect to the Class B-2
Certificates, the Class B-2 Distribution Amount and with respect to the Class C
Certificates, the Class C Distribution Amount.
"Due Date" means, as to any Contract, the date of the month on
which the scheduled monthly payment for such Contract is due.
"Electronic Ledger" means the electronic master record of
installment sale contracts and installment loan agreements of the Company.
16
"Eligible Account" means, at any time, an account which is
either of the following: (i) an account maintained with an Eligible Institution
or (ii) a trust account (which shall be a "segregated trust account") maintained
with the corporate trust department of a federal or state chartered depository
institution or trust company with trust powers and acting in its fiduciary
capacity for the benefit of the Trustee hereunder, which depository institution
or trust company shall have capital and surplus of not less than __________ and
the securities of such depository institution (or, if such depository
institution is a subsidiary of a bank holding company system and such depository
institution's securities are not rated, the securities of the bank holding
company) shall have a credit rating from each of ______ and
_______________________ in one of its generic credit rating categories which
signifies investment grade; or (iii) an account that will not cause ______ or
_____ to downgrade or withdraw its then-current rating assigned to any Class of
Certificates then rated by _____ or _____, as confirmed in writing by ______ and
_____.
"Eligible Institution" means (i) any depository institution
(which may be the Trustee or an Affiliate of the Trustee) the deposits of which
are insured to the full extent permitted by law by the Federal Deposit Insurance
Corporation, whose commercial paper, long-term deposits or long-term unsecured
senior debt has a rating of ___ by _____ and ___ by ______ in the case of
commercial paper or in one of the two highest rating categories by _____ and
______ in the case of long term deposits or long term unsecured senior debt, and
which is subject to examination by federal or state authorities or (ii) a
depository institution otherwise acceptable to _____ and ______.
"Eligible Investments" has the meaning assigned in Section
5.05(b).
"Eligible Servicer" means the Company, its Permitted
Successors pursuant hereto, or any Person qualified to act as Servicer of the
Contracts under applicable federal and state laws and regulations, which Person
(i) services not less than an aggregate of $100,000,000 in outstanding principal
amount of manufactured housing conditional sales contracts and installment loan
agreements and (ii) has serviced manufactured housing conditional sales
contracts and installment loan agreements for at least three years; provided,
that this clause (ii) shall not be a requirement for any Permitted Successor.
"Eligible Substitute Contract" means, as to any Replaced
Contract for which such Eligible Substitute Contract is being substituted
pursuant to Section 3.05(b) of the Loan Sale Agreement, a Contract that (a) as
of the date of its substitution, satisfies all of the representations and
17
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 or Section 3.04 of the
Loan Sale Agreement and does not cause any of the representations and warranties
in Section 3.03 of the Loan Sale Agreement, 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 and (d) has a remaining term to scheduled maturity that is not greater
than the remaining term to scheduled maturity of the Replaced Contract.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended.
"Errors and Omissions Protection Policy" means the employee
errors and omissions policy maintained by the Servicer or any similar
replacement policy covering errors and omissions by the Servicer's employees,
and meeting the requirements of Section 5.09, all as such policy relates to
Contracts comprising a portion of the corpus of the Trust.
"Event of Termination" has the meaning assigned in Section
7.01.
"Excess Pre-Funding Earnings" means, with respect to the
Remittance Date, an amount equal to the product of (x) all investment
earnings received by the Trustee on Pre-Funding Account moneys during the period
through (inclusive) and (y) a fraction, the numerator of which is the
difference between (i) the Original Pre-Funded Amount and (ii) the amount
remaining in the Pre-Funding Account at the close of business on and the
denominator of which is the Original Pre-Funded Amount. With respect to the
Remittance Date, an amount equal to the product of (x) all investment
earnings received by the Trustee on Pre-Funding Account moneys during the period
through (inclusive) and (y) a fraction, the numerator of which is
the difference between (i) the amount on deposit in the Pre-Funding Account at
the close of business on and (ii) the amount remaining in the Pre-Funding
Account at the close of business on and the denominator of which is the
amount on deposit in the Pre-Funding Account at the close of business on .
With respect to the Remittance Date, an amount equal to the product of
(x) all investment earnings received by the Trustee on Pre-Funding Account
moneys during the period through (inclusive) and (y) a fraction,
the numerator of which is the difference between (i) the amount on deposit in
the Pre-Funding Account at the close of business on and (ii) the amount
remaining in the
18
Pre-Funding Account at the close of business on and the denominator of which is
the amount on deposit in the Pre-Funding Account at the close of business
on .
"Fidelity Bond" means the fidelity bond maintained by the
Servicer or any similar replacement bond, meeting the requirements of Section
5.09, as such bond relates to Contracts comprising a portion of the corpus of
the Trust.
"Final Remittance Date" means the Remittance Date on which the
final distribution in respect of the Certificates will be made pursuant to
Section 12.03.
"Financing Statements" means, collectively, the UCC-1
financing statements filed, (i) with respect to the Company, with the
_________________________________________ _______ and (ii) with respect to the
Seller, with the ________________________________________________.
_______ means _____________________________, or any successor
thereto; provided that if _____ no longer has a rating outstanding on the Class
A-1 Certificates, nor on the Class A-2 Certificates, nor on the Class A-3
Certificates, nor on the Class A-4 Certificates, nor on the Class A-5
Certificates, nor on the Class A-6 Certificates, nor on the Class B-1
Certificates, then references herein to _______ shall be deemed to the NRSRO
then rating any Class of the Certificates (or, if more than one such NRSRO is
then rating any Class of the Certificates, to such NRSRO as may be designated by
the Servicer), and references herein to ratings by or requirements of ______
shall be deemed to have the equivalent meanings with respect to ratings by or
requirements of such NRSRO.
"Formula Distribution Amount" means, with respect to the
Senior Certificates, the Senior Formula Distribution Amount; with respect to the
Class A-6 Certificates, the Class A-6 Formula Distribution Amount; with respect
to the Class B-1 Certificates, the Class B-1 Formula Distribution Amount; with
respect to the Class B-2 Certificates, the Class B-2 Formula Distribution
Amount; and with respect to the Class C Certificates, the Class C Formula
Distribution Amount.
"Formula Principal Distribution Amount" means, as of
any Remittance Date, the sum of:
(i) all scheduled payments of principal due on each
outstanding Contract during the prior Collection
Period as specified in the amortization schedule
at the time applicable thereto (after adjustments
for previous Partial Principal Prepayments but
before any adjustment to such amortization
schedule by reason of any bankruptcy of an Obligor
or
19
similar proceeding or any moratorium or similar
waiver or grace period); plus
(ii) all Partial Principal Prepayments applied and all
Principal Prepayments in Full received during the
prior Collection Period; plus
(iii) the aggregate Scheduled Principal Balance of all
Contracts that became Liquidated Contracts during
the prior Collection Period; plus
(iv) the aggregate Scheduled Principal Balance of all
Contracts repurchased on the related Determination
Date pursuant to Section 3.05; plus
(v) the Accelerated Principal, if any, for such
Distribution Date; plus
(vi) any moneys released from the Pre-Funding Account
on the Remittance Date which immediately follows
the end of the Pre-Funding Period pursuant to
Section 5.14 hereof as a prepayment of the
Certificates on such Remittance Date.
"Hazard Insurance Policy" means, with respect to each
Contract, the policy of fire and extended coverage insurance (and federal flood
insurance, if the Manufactured Home is located in a federally designated special
flood area) required to be maintained for the related Manufactured Home, as
provided in Section 5.09, and which, as provided in said Section 5.09, may be a
blanket mortgage impairment policy maintained by the Servicer in accordance with
the terms and conditions of said Section 5.09.
"Independent" means, when used with respect to any specified
Person, _________________ or any Person who (i) is in fact independent of the
Company and the Servicer, (ii) does not have any direct financial interest or
any material indirect financial interest in the Company or the Servicer or in an
Affiliate of either and (iii) is not connected with the Company or the Servicer
as an officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions. Whenever it is provided herein that any
Independent Person's opinion or certificate shall be furnished to the Trustee,
such opinion or certificate shall state that the signatory has read this
definition and is Independent within the meaning set forth herein.
"Initial Contracts" means Contracts delivered by the Seller on
the Closing Date.
20
"Initial Overcollateralization Amount" means $___________.
"Insurance Proceeds" means proceeds paid by any insurer
pursuant to any insurance policy or contract.
"Land-Home Contract" means a Land Secured Contract as to which
funds are advanced against the Manufactured Home and the real estate.
"Land-in-Lieu Contract" means a Land Secured Contract as to
which the real estate is in lieu of a cash down payment on the Manufactured
Home.
"Land as Additional Collateral Contract" means a Land Secured
Contract as to which the real estate is used as additional collateral for the
purchase of the Manufactured Home.
"Land Secured Contract" means a Contract that is secured by
(i) a security interest in a Manufactured Home and (ii) a mortgage or deed of
trust on real estate on which such Manufactured Home is situated, but such
Manufactured Home is not considered or classified as part of the real estate
under the laws of the jurisdiction in which it is located.
"Liquidated Contract" means any defaulted Contract as to which
the Servicer has determined that all amounts 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 has been realized
upon and disposed of and the proceeds of such disposition have been received
shall be deemed to be a Liquidated Contract.
"Liquidation Expenses" means out-of-pocket expenses (exclusive
of any 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 is disposed of, including, without limitation, any of
the Servicer's unreimbursed Servicing Advances, including legal fees and
expenses, and any related and unreimbursed expenditures for property taxes,
property preservation or restoration of the property to marketable condition.
"Liquidation Proceeds" means cash (including Insurance
Proceeds) received in connection with the liquidation of defaulted Contracts,
whether through repossession, foreclosure sale or otherwise, including any
rental income realized from the repossessed Manufactured Home.
"List of Contracts" means the list identifying each Contract
constituting part of the corpus of the Trust, as it
21
may be further supplemented in connection with Subsequent Transfers, which list
(a) identifies each Contract and (b) sets forth as to each Contract (i) the
Cut-off Date Principal Balance, (ii) the amount of monthly payments due from the
Obligor, (iii) the Contract Rate and (iv) the maturity date, and which is
attached to the assignment from the Seller to the Trustee, conveying the
Seller's right, title and interest in and to the Contracts.
"Loan-to-Value Ratio" means, with respect to any Contract, the
original principal balance thereof divided by the related Value; "Value" means
(a) in the case of a Contract other than a Land-in-Lieu Contract or Land-Home
Contract, the stated cash sale price of the related Manufactured Home, including
sales and other taxes, plus, to the extent financed, filing and recording fees
imposed by law, premiums for related insurance and prepaid finance charges and
(b) in the case of a Land-In-Lieu Contract or a Land-Home Contract, the sum of
"Value" as defined in (a) and the appraised value of the land securing the
Contract.
"Loan Sale Agreement" means the Loan Sale Agreement dated as
of ___________, among the Servicer and the Seller.
"Lower-Tier Interests" means, as defined in Section 2.04(c)
hereof.
"Lower-Tier REMIC" means the segregated pool of assets held by
the Trust consisting of the Conveyed Property and the Certificate Account.
"Majority Holders" means Senior, Class A-6, Class B-1 and
Class B-2 Certificateholders holding more than 50% of the aggregate Certificate
Principal Balance of the Senior, Class A-6, Class B-1 and Class B-2
Certificates.
"Maturity Date" means the Remittance Date in ______________.
"Manufactured Home" means a unit of manufactured housing,
including all accessions thereto, securing the indebtedness of the Obligor under
the related Contract.
"Maximum Collateral Amount" means the aggregate Pool Scheduled
Principal Balance of all Contracts (including all Subsequent Contracts
transferred to the Trust) assigned to the Trust at the close of business on the
last day of the Remittance Period in which the final Subsequent Transfer Date
has occurred.
"Monthly Report" has the meaning assigned in Section 6.01.
22
"Monthly Servicing Fee" means, as of any Remittance Date,
one-twelfth of the product of 1.00% and the Pool Scheduled Principal Balance as
of the opening of the immediately preceding Collection Period.
________ means _______________________________, or any
successor thereto; provided, that, if ______ no longer has a rating outstanding
on the Class A-1 Certificates, nor on the Class A-2 Certificates, nor on the
Class A-3 Certificates, nor on the Class A-4 Certificates, nor on the Class A-5
Certificates, nor on the Class A-6 Certificates, nor on the Class B-1
Certificates, nor on the Class B-2 Certificates, then references herein to
______ shall be deemed to refer to the NRSRO then rating any Class of the
Certificates (or, if more than one such NRSRO is then rating any Class of the
Certificates, to such NRSRO as may be designated by the Servicer), and
references herein to ratings by or requirements of _____ shall be deemed to have
the equivalent meanings with respect to ratings by or requirements of such
NRSRO.
"Mortgage" means 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 Secured Contract.
"Mortgaged Property" means the property subject to the lien of
a Mortgage.
"Net Liquidation Loss" means, as to a Liquidated Contract, the
amount, if any, by which (a) the outstanding principal balance of such
Liquidated Contract plus accrued and unpaid interest thereon to the date on
which such Liquidated Contract became a Liquidated Contract exceeds (b) the Net
Liquidation Proceeds for such Liquidated Contract.
"Net Liquidation Proceeds" means, as to a Liquidated Contract,
all Liquidation Proceeds received on or prior to the last day of the Collection
Period in which such Contract became a Liquidated Contract, net of the sum of
(i) any unreimbursed Delinquency Advances with respect to such Liquidated
Contract and (ii) Liquidation Expenses with respect to such Contract.
"Non-IO Certificates" means the Class A-1, Class A-2, Class
A-3, Class A-4, Class A-5, Class A-6, Class B-1 and Class B-2 Certificates.
"Nonrecoverable Delinquency Advance" means any Delinquency
Advance made pursuant to Section 5.13(a) which the Servicer believes, in its
good faith judgment, is not ultimately recoverable from Liquidation Proceeds or
other collections with respect to the related Contract. In determining whether a
Delinquency Advance is nonrecoverable, the Servicer need not take into account
that it might receive
23
any amounts in a deficiency judgment. The determination by the Servicer that any
advance is a Nonrecoverable Advance, shall be evidenced by an Officer's
Certificate of the Servicer delivered to the Trustee and stating the reasons for
such determination.
"NRSRO" means any nationally recognized statistical rating
organization.
"Obligor" means each Person who is indebted under a Contract.
"OC Stepdown Amount" means, with respect to any Remittance
Date prior to the Remittance Date on which the Class B-2 Principal Balance has
been reduced to zero, the lesser of (x) the Formula Principal Distribution
Amount for such Remittance Date and (y) the excess of (i) the
Overcollateralization Amount as of such Remittance Date, calculated after giving
effect to the distribution of the full Formula Principal Distribution Amount for
such Remittance Date with respect to the Non-IO Certificates on such Remittance
Date over (ii) the Required Overcollateralization Amount for such Remittance
Date.
"Offered Certificate" means a Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate, Senior, Class A-6 or Class B-1,
executed and delivered by the Trustee substantially in the form of Exhibit A-1,
A-2, A-3, A-4, A-5, A-6 or B-1.
"Officer's Certificate" means a certificate signed by the
Chairman of the Board, President or any Vice President of the Company and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may, except as expressly provided herein, be salaried counsel for the Company,
acceptable to the Trustee and the Company, provided that any opinion of counsel
relating to the qualification of any REMIC held by the Trust as a REMIC or
compliance with the REMIC Provisions must be an opinion of Independent counsel.
"Original Aggregate Pool Scheduled Principal Balance" means
the aggregate Pool Scheduled Principal Balance of all Initial Contracts as of
the Cut-Off Date, i.e., $ .
"Original Aggregate Pre-Funded Amount" means the amount
deposited in the Pre-Funding Account on the Closing Date, from the proceeds of
the sale of the Class A Certificates, which amount is $ .
"Original Class A-1 Principal Balance" means __________.
24
"Original Class A-2 Principal Balance" means __________.
"Original Class A-3 Principal Balance" means __________.
"Original Class A-4 Principal Balance" means __________.
"Original Class A-5 Principal Balance" means __________.
"Original Class A-6 Principal Balance" means __________.
"Original Class B-1 Principal Balance" means __________.
"Original Class B-2 Principal Balance" means __________.
"Overcollateralization Amount" means, as to any Remittance
Date, the excess of (x) the Pool Scheduled Principal Balance as of the close of
business on the last day of the immediately preceding Collection Period over (y)
the sum of the Senior Principal Balance, the Class A-6 Principal Balance, the
Class B-1 Principal Balance and the Class B-2 Principal Balance on such
Remittance Date, after taking into account all distributions of principal
described in clauses (1)-(6) of Section 8.03(a) made on such Remittance Date.
"Overcollateralization Reduction Amount" means, as to any
Remittance Date (x) prior to the Remittance Date on which the Class B-2
Principal Balance has been reduced to zero, the OC Stepdown Amount, (y) on and
after the Remittance Date on which the Class B-2 Principal Balance has been
reduced to zero, the lesser of (i) the Overcollateralization Amount as of such
Remittance Date and (ii) the Amount Available remaining in the Certificate
Account on such Remittance Date after taking into account all distributions
described in clauses (1) - (10) of Section 8.03(a) on such Remittance Date.
"Overfunded Interest Amount" means, with respect to each
Subsequent Transfer Date occurring in , the difference between (i)
three-months' interest on the aggregate Pool Scheduled Principal Balance of the
Subsequent Contracts acquired by the Trust on such Subsequent Transfer Date,
calculated at the Weighted Average Pass-Through Rate and (ii) three-months'
interest on the aggregate Pool Scheduled Principal Balance of the Subsequent
Contracts acquired by the Trust on such Subsequent Transfer Date, calculated at
the rate at which Pre-Funding Account moneys are invested as of such Subsequent
Transfer Date.
25
With respect to each Subsequent Transfer Date occurring
in , the difference between (i) two-month's interest on the aggregate
Pool Scheduled Principal Balance of the Subsequent Contracts acquired by the
Trust on such Subsequent Transfer Date, calculated at the Weighted Average
Pass-Through Rate and (ii) two-month's interest on the aggregate Pool Scheduled
Principal Balance of the Subsequent Contracts acquired by the Trust on such
Subsequent Transfer Date, calculated at the rate at which Pre-Funding Account
moneys are invested as of such Subsequent Transfer Date.
With respect to each Subsequent Transfer Date occurring
in , the difference between (i) one-month's interest on the aggregate
Pool Scheduled Principal Balance of the Subsequent Contracts acquired by the
Trust on such Subsequent Transfer Date, calculated at the Weighted Average
Pass-Through Rate and (ii) one-month's interest on the aggregate Pool Scheduled
Principal Balance of the Subsequent Contracts acquired by the Trust on such
Subsequent Transfer Date, calculated at the rate at which Pre-Funding Account
moneys are invested as of such Subsequent Transfer Date.
"Partial Principal Prepayment" means (a) any Principal
Prepayment other than a Principal Prepayment in Full and (b) any cash amount
deposited in the Certificate Account pursuant to Section 3.05(b)(iv) of the Loan
Sale Agreement.
"Paying Agent" has the meaning assigned in Section 8.01(c).
"Percentage Interest" means, as to any Certificate, the
percentage interest evidenced thereby in distributions made on the related
Class, such percentage interest being equal to, in the case of the Senior, Class
A-6, Class B-1 and Class B-2 Certificates, the percentage obtained from dividing
the denomination of such Certificate by the aggregate denomination of all
Certificates of the related Class or Classes for which the determination is
being made, which is, in the case of (a) the Senior Certificates, the aggregate
denomination of all Senior Certificates of the related Class (which equals the
Original Class A-1 Principal Balance in the case of a Class A-1 Certificate, the
Original Class A-2 Principal Balance in the case of a Class A-2 Certificate, the
Original Class A-3 Principal Balance in the case of a Class A-3 Certificate, the
Original Class A-4 Principal Balance in the case of a Class A-4 Certificate, and
the Original Class A-5 Principal Balance in the case of a Class A-5
Certificate), (b) the Class A-6 Certificates, the aggregate denomination of all
Class A-6 Certificates (which equals the Original Class A-6 Principal Balance)
and (c) the Class B Certificates, the aggregate denomination of all Class B
Certificates of the related Class (which equals the Original Class B-1 Principal
Balance in the case of a Class B-1 Certificate or the Original Class B-2
Principal Balance in the case of a Class B-2
26
Certificate) and, in the case of the Class C and Residual Certificates, being
equal to the percentage specified on the face of such Certificate. The aggregate
Percentage Interests for each Class of Certificates shall equal 100%.
"Permitted Successor" means (i) any successor by merger to
Access Financial Lending Corp., (ii) any Affiliate of Access Financial Lending
Corp. or (iii) any successor to Access Financial Lending Corp.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"Plan" has the meaning assigned in Section 9.02(b)(2) hereof.
"Pool Factor" means, at any time, the percentage derived from
a fraction, the numerator of which is the aggregate Principal Balance of all
Classes of Certificates at such time and the denominator of which is the Cut-off
Date Pool Principal Balance.
"Pool Scheduled Principal Balance" means, as of any date, the
aggregate Scheduled Principal Balance of all Contracts that were outstanding on
such date.
"Pre-Funded Amount" means, with respect to any Determination
Date, the amount on deposit in the Pre-Funding Account.
"Pre-Funding Account" means the Pre-Funding Account
established in accordance with Section 7.2 hereof and maintained by the Trustee.
"Pre-Funding Earnings" means, with respect to the
Remittance Date, the actual investment earnings earned during the period
through (inclusive) on the Pre-Funding Account during such
period as calculated by the Company pursuant to Section 2.05 hereof; with
respect to the Remittance Date the actual investment earnings during the period
through (inclusive) on the Pre-Funding Account during such period as calculated
by the Company pursuant to Section 2.05 hereof; with respect to the Remittance
Date the actual investment earnings during the period through (inclusive) on the
Pre-Funding Account during such period as calculated by the Company pursuant to
Section 2.05 hereof.
"Pre-Funding Period" means the period commencing on the
Closing Date and ending on the earliest to occur of (i) the date on which the
amount on deposit in the Pre-Funding
27
Account (exclusive of any investment earnings) is less than $100,000, (ii) the
date on which any Event of Default occurs and (iii) .
"Principal Prepayment" means a payment or other recovery of
principal on a Contract (exclusive of Liquidation Proceeds) which is received in
advance of its scheduled due date and applied upon receipt (or, in the case of a
Partial Principal Prepayment, upon the next Due Date on such Contract) to reduce
the outstanding principal amount due on such Contract prior to the date or dates
on which such principal amount is due.
"Principal Prepayment in Full" means any Principal Prepayment
of the entire principal balance of a Contract.
"Realized Losses" means, as to any Remittance Date, the
aggregate Net Liquidation Losses of all Contracts that became Liquidated
Contracts during the immediately preceding Collection Period.
"Record Date" means the last Business Day of the month
immediately preceding the month in which the related Remittance Date occurs.
"REMIC" means a "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC Provisions" means the provisions of the federal income
tax law relating to REMICs, which appear at Sections 860A through 860G of the
Code, and related provisions and any temporary, proposed or final regulations
promulgated thereunder, as the foregoing may be in effect from time to time.
"Remittance Date" means the fifteenth day of each calendar
month during the term of this Agreement, or if such day is not a Business Day,
the next succeeding Business Day, commencing in _________.
"Remittance Rate" means, with respect to the Class A-1
Certificates, the Class A-1 Remittance Rate; with respect to the Class A-2
Certificates, the Class A-2 Remittance Rate; with respect to the Class A-3
Certificates, the Class A-3 Remittance Rate; with respect to the Class A-4
Certificates, the Class A-4 Remittance Rate; with respect to the Class A-5
Certificates, the Class A-5 Remittance Rate; with respect to the Class A-6
Certificates, the Class A-6 Remittance Rate; with respect to the Class B-1
Certificates, the Class B-1 Remittance Rate and with respect to the Class B-2
Certificates, the Class B-2 Remittance Rate.
"Replaced Contract" has the meaning assigned in Section
3.05(a) of the Loan Sale Agreement.
28
"Representative" means _____________________________________.
"Repurchase Price" has the meaning set forth in Section
3.05(a) of the Loan Sale Agreement.
"Required Overcollateralization Amount" means, with respect to
any Remittance Date, (x) prior to the Class B Cross-over Date, the Initial
Required Overcollateralization Amount, (y) on and after the Class B Cross-over
Date, and as long as each Class B Principal Distribution Test is then satisfied,
the lesser of (i) the Initial Required Overcollateralization Amount and (ii) the
greater of (a) __% of the then Scheduled Pool Principal Balance and (b) ____% of
the Cut-off Date Pool Principal Balance and (z) on and after the Class B
Cross-over Date, if any Class B Distribution Test is not satisfied, the required
level as of the immediately preceding Remittance Date.
"Residual Certificate" means, any Class RL Certificate or any
Class RU Certificate.
"Residual Certificateholder" means the person in whose name a
Residual Certificate is registered on the Certificate Register.
"Responsible Officer" means, with respect to the Trustee, the
chairman and any vice chairman of the board of directors, the president, the
chairman and vice chairman of any executive committee of the board of directors,
every vice president, assistant vice president, the secretary, every assistant
secretary, cashier, or any assistant cashier, controller or assistant
controller, the treasurer, every assistant treasurer, every trust officer,
assistant trust officer and every other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by persons
who at the time shall be such officers, respectively, or to whom a corporate
trust matter is referred because of knowledge of, familiarity with, and
authority to act with respect to a particular matter.
"Scheduled Principal Balance" means, as to any Contract and
any Remittance Date or the Cut-off Date, the principal balance of such Contract
as of the Due Date in the Collection Period immediately preceding such
Remittance Date or as of the Due Date immediately preceding the Cut-off Date, as
the case may be, as specified in the amortization schedule at the time relating
thereto (before any adjustment to such amortization schedule by reason of any
bankruptcy of an Obligor or similar proceeding or any moratorium or similar
waiver or grace period) after giving effect to any previous Partial Principal
Prepayments and to the payment of principal due on such Due Date and
irrespective of any delinquency in payment by, or extension granted to, the
related Obligor.
29
"Selling Entity" has the meaning set forth in Section 4.03
hereof.
"Senior Certificate" means any one of the Class A-1, Class
A-2, Class A-3, Class A-4 and Class A-5 Certificates.
"Senior Distribution Amount" means, as to any Remittance Date,
the lesser of (a) the Amount Available for such Remittance Date and (b) the
Senior Formula Distribution Amount for such Remittance Date.
"Senior Formula Distribution Amount" means, as to any
Remittance Date, an amount equal to the sum of (a) the Senior Interest
Distribution Amount for such Remittance Date and (b) the Senior Percentage of
the Formula Principal Distribution Amount; provided, however, that the aggregate
of all amounts distributed for all Remittance Dates pursuant to clause (b) shall
not exceed the sum of the Original Class A-1 Principal Balance, the Original
Class A-2 Principal Balance, the Original Class A-3 Principal Balance, the
Original Class A-4 Principal Balance and the Original Class A-5 Principal
Balance.
"Senior Interest Distribution Amount" means, as to each Class
of Senior Certificates and any Remittance Date, the sum of (x) one month's
interest at (i) the Class A-1 Remittance Date on the Class A-1 Principal
Balance, (ii) the Class A-2 Remittance Rate on the Class A-2 Principal Balance,
(iii) the Class A-3 Remittance Rate on the Class A-3 Principal Balance, (iv) the
Class A-4 Remittance Rate on the Class A-4 Principal Balance and (v) the Class
A-5 Remittance Date on the Class A-5 Principal Balance, in each case calculated
immediately prior to such Remittance Date and (y) the aggregate Unpaid Senior
Interest Shortfall, if any.
"Senior Percentage" means:
(i) as to any Remittance Date prior to the Class B
Cross-over Date, 100%,
(ii) as to any Remittance Date on or after the Class B
Cross-Over Date and on which any Class B Principal
Distribution Test is not satisfied, 100%,
(iii) as to any Remittance Date on or after the Class B
Cross-over Date and on which each Class B Principal
Distribution Test is satisfied, a fraction, expressed
as a percentage, the numerator of which is the sum of
the Senior Principal Balance and the Class A-6
Principal Balance as of such Remittance Date (before
giving effect to any distributions to be made on such
Remittance
30
Date), and the denominator of which is the Pool
Scheduled Principal Balance at the end of the second
preceding Collection Period.
"Senior Principal Balance" means, as to any Remittance Date,
the sum of the Class A-1 Principal Balance, the Class A-2 Principal Balance, the
Class A-3 Principal Balance, the Class A-4 Principal Balance and the Class A-5
Principal Balance.
"Servicer" means the Company until any Service Transfer
hereunder and thereafter means the new servicer appointed pursuant to Article
VII.
"Service Transfer" has the meaning assigned in Section 7.02.
"Servicing Advance" has the meaning set forth in Section
5.13(b) hereof.
"Servicing File" has the meaning set forth in Section 4.01(a)
hereof.
"Servicing Officer" means any officer of the Servicer involved
in, or responsible for, the administration and servicing of Contracts whose name
appears on a list of servicing officers appearing in an Officer's Certificate
furnished to the Trustee by the Company, as the same may be amended from time to
time.
"Servicing Transfer" means the completion of the relocation of
the Company's servicing platform from Atlanta, Georgia to St. Louis Park,
Minnesota on June 24, 1996.
"Sixty-Day Delinquency Ratio" means, as to any Remittance
Date, a fraction, expressed as a percentage, the numerator of which is the
aggregate of the outstanding balances of all Contracts that were delinquent 60
days or more as of the end of the prior Collection Period (including Contracts
in respect of which the related Manufactured Homes have been repossessed but are
still in inventory), and the denominator of which is the Pool Scheduled
Principal Balance as of the end of the prior Collection Period.
"Subsequent Cut-Off Date" means, with respect to any
Subsequent Contracts, the first day of the month in which such Subsequent
Contracts are transferred and assigned to the Trust.
"Subsequent Contracts" means the Contracts sold to the Trust
pursuant to Section 2.05 of the Agreement, which shall be listed on the List of
Contracts attached to the Subsequent Transfer Agreement.
31
"Subsequent Transfer Agreement" means each Subsequent Transfer
Agreement dated as of a Subsequent Transfer Date executed by the Trustee, the
Company and the Seller substantially in the form of Exhibit hereto, by which
Subsequent Contracts are sold and assigned to the Trust.
"Subordinate Certificate" means any one of the Class A-6,
Class B or Class C Certificates.
"Termination Price" has the meaning set forth in Section
12.03(b)(i) hereof.
"Thirty-Day Delinquency Ratio" means, as to any Remittance
Date, a fraction, expressed as a percentage, the numerator of which is the
aggregate of the outstanding balances of all Contracts that were delinquent 30
days or more as of the end of the prior Collection Period (including Contracts
in respect of which the related Manufactured Homes have been repossessed but are
still in inventory), and the denominator of which is the Pool Scheduled
Principal Balance as of the end of the prior Collection Period.
"Trust" means the trust created by this Agreement, the corpus
of which consists of (a) all the rights, benefits, and obligations arising from
and in connection with each Initial Contract and each Subsequent Contract, and
any related Mortgage, (b) all rights under any Hazard Insurance Policy relating
to a Manufactured Home securing a Contract for the benefit of the creditor of
such Contract and proceeds from the Errors and Omissions Protection Policy and
any blanket hazard policy to the extent such proceeds relate to any Manufactured
Home, (c) all remittances, deposits and payments made into the Certificate
Account and amounts in the Certificate Account, (d) such amounts held in the
Capitalized Interest Account, (e) such amounts held in the Pre-Funding Account,
(f) all proceeds in any way derived from any of the foregoing items, (g) all
rights of the Seller under the Loan Sale Agreement and (h) all documents
contained in the Contract Files.
"Trustee" means, originally, ____________________ and,
thereafter, any duly-appointed successor appointed pursuant to Sections 11.07
and 11.08 hereof.
"Unpaid Class A-6 Interest Shortfall" means, as to any
Remittance Date, the amount, if any, of the Class A-6 Interest Shortfall for the
immediately preceding Remittance Date, plus accrued interest (to the extent
payment thereof is legally permissible) at the Class A-6 Remittance Rate on the
amount thereof from such prior Remittance Date to such current Remittance Date.
"Unpaid Class B-1 Interest Shortfall" means, as to any
Remittance Date, the amount, if any, of the Class B-1 Interest Shortfall for the
immediately preceding Remittance
32
Date, plus accrued interest (to the extent payment thereof is legally
permissible) at the Class B-1 Remittance Rate on the amount thereof from such
prior Remittance Date to such current Remittance Date.
"Unpaid Class B-2 Interest Shortfall" means, as to any
Remittance Date, the amount, if any, of the Class B-2 Interest Shortfall for the
immediately preceding Remittance Date, plus accrued interest (to the extent
payment thereof is legally permissible) at the Class B-2 Remittance Rate on the
amount thereof from such prior Remittance Date to such current Remittance Date.
"Unpaid Senior Interest Shortfall" means, as to each Class of
Senior Certificates and any Remittance Date, the amount, if any, of the Senior
Interest Distribution Amount due but unpaid on the immediately preceding
Remittance Date, plus accrued interest (to the extent payment thereof is legally
permissible) at the related Remittance Rate on the amount thereof from such
prior Remittance Date to such current Remittance Date.
"Unregistered Certificate" means Certificates which are not
registered as evidenced by inclusion in the Register.
"Upper-Tier REMIC" means the segregated pool of assets held by
the Trust consisting of the Lower Tier Interests (except for the RL Lower-Tier
Interest, as set forth in the chart in Section 2.04(c) hereof).
"Weighted Average Net Contract Rate" means, as to any
Remittance Date, a rate equal to (i) the weighted average of the Contract Rates
on outstanding Contracts, weighted by such Contracts' respective Scheduled
Principal Balances and calculated as of the opening of the immediately preceding
Collection Period less (ii) if Access Financial Lending Corp. (or any successor
thereto by merger) is not then the Servicer, ____% per annum (representing the
Monthly Servicing Fee).
ARTICLE II
ESTABLISHMENT OF TRUST; TRANSFER OF CONTRACTS
SECTION 2.01. Closing. (a) The Company hereby creates a
separate trust which shall be known as the Access Financial Manufactured Housing
Contract Certificate Trust ______. The Trust shall be administered pursuant to
the provisions of this Agreement for the benefit of the Certificateholders. The
Company hereby directs the Trust to acquire the Initial Contracts and upon the
Trust's acquisition of the Initial Contracts, to issue the Certificates.
33
(b) The Seller hereby transfers, assigns, sets over and
otherwise conveys to the Trustee on behalf of the Trust, by execution of an
assignment substantially in the form of Exhibit E hereto, (1) all the right,
title and interest of the Seller in and to the Initial Contracts, including,
without limitation, the security interests created thereby and any related
Mortgages and all interest and principal due on or with respect to the Initial
Contracts (other than the principal and interest due on the Initial Contracts
before the Cut-off Date), (2) all rights under every Hazard Insurance Policy
relating to a Manufactured Home securing a Contract for the benefit of the
creditor of such contract, (3) the proceeds from the Errors and Omissions
Protection Policy and all rights under any blanket hazard insurance policy to
the extent they relate to the Manufactured Homes, (4) all documents contained in
the Contract Files, (5) the Seller's rights under the Loan Sale Agreement and
(6) all proceeds in any way derived from any of the foregoing (such items,
collectively, the "Trust Estate").
(c) Although the parties intend that the conveyance of the
Seller's 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 the Seller shall
be deemed to have granted to the Trustee, and the Seller does hereby grant to
the Trustee, a perfected first-priority security interest in the items
designated in Section 2.01(b) above, and 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 interest 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.
SECTION 2.02. [reserved]
SECTION 2.03. Acceptance by Trustee. On the Closing Date and
on any Subsequent Transfer Dates, upon the written direction of the Seller, the
Trustee shall deliver a certificate to the Seller substantially in the form of
Exhibit F hereto acknowledging receipt of the Contracts, and further declaring
that the Trustee will administer the Trust Estate in trust, upon the terms
herein set forth, for the use and benefit of all Certificateholders and shall
issue to or upon the order of the Company Certificates representing ownership of
a beneficial interest in 100% of the Trust.
SECTION 2.04. REMIC Provisions. (a) The Trust shall elect that
the Upper-Tier REMIC and the Lower-Tier REMIC
34
shall be treated as REMICs under Section 860D of the Code. Any inconsistencies
or ambiguities in this Agreement or in the administration of the Trust shall be
resolved in a manner that preserves the validity of such REMIC elections.
(b) 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 and the Class A-6 Certificates, the Class B-1 Certificates, the
Class B-2 Certificates, and the Class C Certificates are hereby designated as
"regular interests" with respect to the Upper- Tier REMIC and the Class RU
Certificates are hereby designated as the single class of "residual interest"
with respect to the Upper-Tier REMIC. The Class LT1, LT2, LT3, LT4, LT5, LT6,
LT7 and LT8 Certificates are hereby designated as "regular interests" with
respect to the Lower-Tier REMIC and the Class RL Certificates are hereby
designated as the single class of "residual interest" with respect to the
Lower-Tier REMIC. The Capitalized Interest Account and the Pre-Funding Account
are not part of the segregated pool of assets which constitutes the REMIC Trust.
(c) The beneficial ownership interest of the Lower-Tier REMIC
shall be evidenced by the interests (the "Lower-Tier Interests") having the
characteristics and terms as follows:
Original Final
Class Companion Principal Interest Remittance
Designation Classes Balance Rate Date
LT-1 A-1, C $__________ (1) _________________
LT-2 A-2, C __________ (1) _________________
LT-3 A-3, C __________ (1) _________________
LT-4 A-4, C __________ (1) _________________
LT-5 A-5, C __________ (1) _________________
LT-6 A-6, C __________ (1) _________________
LT-7 B-1, C __________ (1) _________________
LT-8 B-2, C _________ (1) _________________
RL N/A (2) (2) _________________
(1) The Weighted Average Contract Rate.
(2) The RL Certificate has no principal balance and does not bear interest.
The Lower-Tier Interests LT-1, LT-2, LT-3, LT-4, LT-5, LT-6, LT-7 and LT-8 shall
be issued as non-certificated interests and recorded on the records of the
Lower-Tier REMIC as being issued to and held by the Trustee on behalf of the
Upper-Tier REMIC.
On each Remittance Date, the Amount Available shall be applied
as principal and interest of particular Lower Tier Interests, other than the RL
Certificate, in amounts corresponding to the aggregate respective amounts
required to be applied as principal and interest of their related Companion
Classes (as set
35
forth above) pursuant to the priorities set forth in Section 8.03 hereof. To the
extent of the Amount Available corresponding to distributions with respect to
the Class C Certificates, such portion of the Amount Available shall be applied
pro rata as a distribution on the Lower-Tier Interests.
No distributions will be made on the Class RL Certificate,
except that any distribution of the proceeds of the final remaining assets of
the Lower Tier REMIC shall be distributed to the Holder thereof upon
presentation and surrender of the Class RL Certificate.
(d) The Closing Date is hereby designated as the "startup day"
of each REMIC within the meaning of Section 860G(a)(9) of the Code.
(e) After the Closing Date, none of the Trustee, the Company,
the Seller or any Servicer shall (i) accept any contribution of assets to the
Trust (except as expressly provided herein or in the Loan Sale Agreement), (ii)
dispose of any portion of the Trust (except for repossessed Manufactured Homes
or foreclosed real estate and except as otherwise expressly provided herein or
in the Loan Sale Agreement), (iii) engage in any "prohibited transaction," as
defined in Sections 860F(a)(2) and (5) of the Code, (iv) accept any contribution
after the Closing Date that is subject to the tax imposed by Section 860G(d) of
the Code or (v) engage in any activity or enter into any agreement that would
result in the receipt by the Trust of any "net income from foreclosure property"
as defined in Section 860G(c)(2) of the Code, unless, prior to any such action
set forth in clauses (i), (ii), (iii), (iv) or (v) the Trustee shall have
received an unqualified Opinion of Counsel, which opinion shall not be an
expense of the Trust, stating that such action will not, directly or indirectly,
(A) adversely affect the status of any REMIC held by the Trust as a REMIC or the
status of the Certificates as "regular interests" therein or of the Residual
Certificates as the sole class of "residual interests" therein, (B) affect the
distributions payable hereunder to the Certificateholders or the Residual
Certificateholders or (C) result in the imposition of any lien, charge or
encumbrance upon the Trust.
(f) Upon the acquisition of any real property (including
interests in real property), or any personal property incident thereto, in
connection with the default of a Contract, the Servicer and the Trustee (at the
direction of the Servicer) shall take, or cause to be taken, such action as is
necessary to sell or otherwise dispose of such property within such period as is
then required by the Code in order for such property to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code, unless the
Servicer and the Trustee receive an Opinion of Counsel to the effect that the
holding by the Trust of such property subsequent to the period then permitted by
the Code will not result in the imposition of any taxes on "prohibited
transactions" of any REMIC held by the Trust, as defined in Section 860F of the
Code, or
36
cause any REMIC held by the Trust to fail to qualify as a REMIC at any time that
the Certificates are outstanding. The Servicer shall manage, conserve, protect
and operate such real property, or any personal property incident thereto, so
that such property will not fail to qualify as "foreclosure property," as
defined in Section 860G(a)(8) of the Code, and that the management,
conservation, protection and operation of such property will not result in the
receipt by any REMIC held by the Trust of any "income from nonpermitted assets,"
within the meaning of Section 860F(a)(2)(B) of the Code.
Section 2.05. Conveyance of the Subsequent Contracts. (a)
Subject to the conditions set forth in paragraph (b) below in consideration of
the Trustee's delivery on the related Subsequent Transfer Dates to or upon the
order of the Company of all or a portion of the balance of funds in the
Pre-Funding Account, the Company shall on any Subsequent Transfer Date cause the
Seller to sell, transfer, assign, set over and otherwise convey without
recourse, to the Trustee all right, title and interest of the Seller in and to
each Subsequent Contract listed on the List of Contracts delivered by the
Company on such Subsequent Transfer Date, all its right, title and interest in
and to principal collected and interest accruing on each such Subsequent
Contract on and after the related Subsequent Cut-Off Date and all its right,
title and interest in and to all Insurance Policies; provided, however, that the
Seller reserves and retains all its right, title and interest in and to
principal (including Prepayments) collected and interest accruing on each such
Subsequent Contract prior to the related Subsequent Cut-Off Date. The transfer
by the Seller of the Subsequent Contracts set forth on the List of Contracts to
the Trustee shall be absolute and shall be intended by the Owners and all
parties hereto to be treated as a sale by the Seller.
The amount released from the Pre-Funding Account shall be
one-hundred percent (100%) of the aggregate principal balances of the Subsequent
Contracts so transferred.
(b) The Seller shall transfer to the Trustee the Subsequent
Contracts and the other property and rights related thereto described in
paragraph (a) above only upon the satisfaction of each of the following
conditions on or prior to the related Subsequent Transfer Date.
(i) the Company shall have provided the Trustee with a
timely Addition Notice and shall have provided any information
reasonably requested by any of the foregoing with respect to the
Subsequent Contracts;
(ii) the Company shall have delivered to the Trustee a duly
executed written assignment (including an acceptance by the Trustee) in
substantially the form of Exhibit (the "Subsequent Transfer
Agreement"), which shall include Schedules of Contracts, listing the
Subsequent Contracts and any other exhibits listed thereon;
37
(iii) the Company shall have deposited in the Principal and
Interest Account all collections in respect of the Subsequent Contracts
received on or after the related Subsequent Cut-Off Date;
(iv) as of each Subsequent Transfer Date, neither the
Servicer nor the Seller was insolvent nor will either of them have been
made insolvent by such transfer nor is either of them aware of any
pending insolvency;
(v) such addition will not result in a material adverse
tax consequent to the Trust or the Owners of the Certificates;
(vi) the Pre-Funding Period shall not have terminated;
(vii) the Company shall have delivered to the Trustee an
Officer's Certificate confirming the satisfaction of each condition
precedent specified in this paragraph (b) and in the related Subsequent
Transfer Agreement; and
(viii) the Company shall have delivered to the Rating Agencies
and the Trustee Opinions of Counsel with respect to the transfer of the
Subsequent Contracts substantially in the form of the Opinions of
Counsel delivered to the Certificate Insurer and the Trustee on the
Closing Date (bankruptcy, corporate and tax opinions);
(c) the obligation of the Trust to purchase a Subsequent
Contract on any Subsequent Transfer Date is subject to the following
requirements: (i) such Subsequent Contract may not be 30 or more days
contractually delinquent as of the related Subsequent Cut-Off Date; (ii) such
Subsequent Contract has a Coupon Rate of at least % and (iv) following the
purchase of such Subsequent Contracts by the Trust, the Contracts (including the
Subsequent Contracts) (a) will have a weighted average Coupon Rate of at least
%; (b) will have a weighted average remaining term to stated maturity of
not more than months, (c) will have a weighted average Combined
Loan-to-Value Ratio of not more than %; (d) will have no Contract with a
Pool Scheduled Principal Balance in excess of $ ; and (f) will have not
more than % in aggregate Pool Scheduled Principal Balance of Contracts
relating to non-owner occupied Properties.
(d) The obligation of the Trust to purchase a Subsequent
Contract on any Subsequent Transfer Date is subject to the following additional
requirements, any of which may be waived or modified in any respect by the
Certificate Insurer by a written instrument executed by the Certificate Insurer;
(1) The obligation of the Trust to purchase a Subsequent
Contract on any Subsequent Transfer Date is subject to the following
additional requirements: (i) no such Subsequent Contract may have a
Combined Loan-to-Value Ratio greater than %; (ii) no such
Subsequent Contract may have an outstanding
38
Pool Scheduled Principal Balance greater than $ as of the related
Subsequent Transfer Date; (iii) no such Subsequent Contract is secured
by a Manufactured Home which, at the time of the origination of such
Contract, had an Appraised Value greater than $ ; (iv) the first
payment on each such Subsequent Contract may be due no later than
; except that, if the Company shall deposit into the
Certificate Account an amount equal to 30 days' interest on any such
Subsequent Contract at the related Coupon Rate less the applicable
Servicing Fee, then the first payment on such Subsequent Contract may
be due no later than , and (v) no Subsequent Contract may have
a Coupon Rate lower than %.
(2) After giving effect to the Trust's purchase of any such
Subsequent Contract (i) the weighted average Coupon Rate of all
Contracts shall be no less than %; (ii) no more than %of
the Contracts held by the Trust shall be concentrated in any single zip
code; (iii) the Contracts shall have weighted average Combined
Loan-to-Value Ratio no greater than %; and (iv) no more than
% of the Contracts by aggregate Pool Scheduled Principal Balance
may relate to non-owner occupied Properties.
(e) In connection with each Subsequent Transfer Date and on
the Remittance Dates occurring in , and of the Company shall determine, and the
Trustee shall co-operate with the Company in determining (i) the amount and
correct disposition of the Capitalized Interest Requirements, Overfunded
Interest Amounts, Excess Pre-Funding Earnings, Pre-Funding Earnings, and (ii)
any other necessary matters in connection with the administration of the
Pre-Funding Account and of the Capitalized Interest Account. In the event that
any amounts are incorrectly released to the Owners of the Class R Certificates
from the Pre-Funding Account or from the Capitalized Interest Account, such
Owners or the Company shall immediately repay such amounts to the Trustee.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties Regarding the
Company. The Company represents and warrants to the Trustee and the
Certificateholders that:
(a) Organization and Good Standing. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its organization and has the corporate power to own
its assets and to transact the business in which it is currently engaged. The
Company is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which the character of the
39
business transacted by it or properties owned or leased by it requires such
qualification and in which the failure so to qualify would have a material
adverse effect on the business, properties, assets, or condition (financial or
other) of the Company.
(b) Authorization; Binding Obligations. The Company has the
power and authority to make, execute, deliver and perform this Agreement and all
of the obligations of the Company, as Servicer, contemplated under this
Agreement. When executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of the Company enforceable in accordance
with its terms, except as enforcement of such terms may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and by the availability of equitable remedies.
(c) No Consent Required. The Company 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 or the Loan Sale
Agreement; provided, however, that the Company may be required to file mortgage
assignments and to make filings under the Securities and Exchange Act of 1934,
as amended.
(d) No Violations. The execution, delivery and performance of
this Agreement by the Company will not violate any provision of any existing law
or regulation or any order or decree of any court or the Certificate of
Incorporation or Bylaws of the Company, or constitute a material breach of any
material mortgage, indenture, contract or other agreement to which the Company
is a party or by which the Company may be bound.
(e) Litigation. No litigation or administrative proceeding of
or before any court, tribunal or governmental body is currently pending, or to
the knowledge of the Company threatened, against the Company or any of its
properties or with respect to this Agreement, the Certificates which, if
adversely determined, would in the opinion of the Company have a material
adverse effect on the transactions contemplated by this Agreement.
(f) Licensing. The Company is licensed or is exempt from
licensing in each state in which Contracts were originated.
SECTION 3.02. Representations and Warranties Regarding the
Seller. The Seller represents and warrants to the Trustee and the
Certificateholders that:
(a) Organization and Good Standing. The Seller is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its organization and has the corporate power to own
its assets and to transact the business in which it is currently engaged. The
Seller is duly qualified to do business as a foreign corporation and is in good
40
standing in each jurisdiction in which the character of the business transacted
by it or properties owned or leased by it requires such qualification and in
which the failure so to qualify would have a material adverse effect on the
business, properties, assets, or condition (financial or other) of the Seller.
(b) Authorization; Binding Obligations. The Seller has the
power and authority to make, execute, deliver and perform this Agreement and all
of the transactions contemplated under this Agreement. When executed and
delivered, this Agreement will constitute the legal, valid and binding
obligation of the Seller enforceable in accordance with its terms, except as
enforcement of such terms may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies.
(c) No Consent Required. The Seller is not required to obtain
the consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement; provided, however,
that the Company may be required to file mortgage assignments and to make
filings under the Securities and Exchange Act of 1934, as amended.
(d) No Violations. The execution, delivery and performance of
this Agreement by the Seller will not violate any provision of any existing law
or regulation or any order or decree of any court or the Certificate of
Incorporation or Bylaws of the Seller, or constitute a material breach of any
material mortgage, indenture, contract or other agreement to which the Seller is
a party or by which the Seller may be bound.
(e) Litigation. No litigation or administrative proceeding of
or before any court, tribunal or governmental body is currently pending, or to
the knowledge of the Seller threatened, against the Seller or any of its
properties or with respect to this Agreement, the Certificates which, if
adversely determined, would in the opinion of the Seller have a material adverse
effect on the transactions contemplated by this Agreement.
(f) No Filings. The Seller has not filed any UCC-1 financing
statements against the Contracts.
SECTION 3.03. [reserved]
SECTION 3.04. Representations and Warranties of the Company
Regarding the Contracts. Pursuant to Section 2.01(b) hereof, the Seller has
assigned to the Trust all of its right, title and interest in and to the Loan
Sale Agreement. In connection with such assignment, the Company hereby affirms
to the Trust that all representations and warranties of the Company regarding
the Contracts and the Contract Files contained in Sections 3.02, 3.03 and 3.04
of the Loan Sale Agreement are true
41
and correct, in all material respects. The Certificateholders may rely on such
representations and warranties to the same extent as if such representations and
warranties were set forth by the Company herein. Further, the Certificateholders
may rely on the representations and warranties with respect to the Subsequent
Contracts set forth in each Subsequent Transfer Agreement to the same extent as
if such representations and warranties were set forth by the Company herein.
SECTION 3.05. Repurchase of Contracts or Substitution of
Contracts for Breach of Representations and Warranties. The Certificateholders
may rely on the repurchase obligation of the Company regarding the Contracts
contained in Section 3.05 of the Loan Sale Agreement to the same extent as if
such obligation was set forth by the Company herein. Further, the
Certificateholders may rely on the repurchase obligation of the Company with
respect to the Subsequent Contracts set forth in each Subsequent Transfer
Agreement to the same extent as if such obligation were set forth by the Company
herein.
ARTICLE IV
PERFECTION OF TRANSFER AND
PROTECTION OF SECURITY INTERESTS
SECTION 4.01. Custody of Contracts. (a) Subject to the terms
and conditions of this Section, (i) the Trustee shall maintain custody of the
Contracts and (ii) the Company, as Servicer, shall maintain custody of the
remaining items of each Contract File (such items, the "Servicing File"), in
each case for the benefit of the Certificateholders.
(b) The Servicer agrees to maintain the related Servicing
Files at its office where they are currently maintained, or at such other
offices of the Servicer from time to time be identified to the Trustee by
written notice. The Servicer may temporarily move individual Servicing Files or
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 of the Servicing Files, the Servicer shall
have and perform the following powers and duties:
(i) hold the Servicing Files on behalf of the
Certificateholders, 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;
(ii) implement policies and procedures with respect to persons
authorized to have access to the Servicing Files and
42
the receipting for Servicing Files taken from their storage area for
purposes of servicing or any other purposes; and
(iii) attend to all details in connection with maintaining custody
of the Servicing Files on behalf of the Certificateholders.
(d) In performing its duties under this Section, the Trustee
and the Servicer each agree to act with reasonable care, using that degree of
skill and care that it exercises with respect to similar contracts owned and/or
serviced by it. In acting as custodian of the Servicing Files, the Servicer
agrees further not to assert any beneficial ownership interest in the Servicing
Files. The Servicer agrees to indemnify the Certificateholders 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 as the result of any act or omission by the Servicer relating
to the maintenance and custody of the Servicing 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 the other, or of any
Certificateholder.
SECTION 4.02. Filings. On or prior to the Closing Date, the
Company shall cause the Financing Statements to be filed. The Servicer shall
cause to be filed all necessary continuation statements of the Financing
Statements. 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 against all other persons, including, without limitation, 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. The Servicer will maintain, for
the benefit of the Trust, the first priority perfected security interest in each
Manufactured Home and a first lien on each Mortgaged Property so long as the
related Contract is property of the Trust.
SECTION 4.03. Name Change or Relocation. (a) During the term
of this Agreement, neither the Company or the Seller (each, a "Selling Entity")
shall change its name or identity or relocate its chief executive office without
first giving written notice thereof to the Trustee and the Servicer. In
addition, following any such change in the name, identity, structure or location
of the chief executive office of a Selling Entity, such Selling Entity shall
give written notice of any such change to ______ and _____.
(b) If any change in a Selling Entity's name or identity 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
43
applicable provisions of the UCC or any title statute or would cause any such
financing or continuation statement or notice of lien to become unperfected
(whether immediately or with lapse of time), such Selling Entity, no later than
five days after the effective date of such change, shall file, or cause to be
filed, such amendments or financing statements as may be required to preserve,
perfect and protect the Trust's interests in the Contracts and proceeds thereof
and in the Manufactured Homes.
SECTION 4.04. Executive Office. During the term of this
Agreement, each Selling Entity will maintain its chief executive office in one
of the States of the United States.
SECTION 4.05. Costs and Expenses. The Servicer agrees to pay
all reasonable costs and disbursements in connection with the perfection and the
maintenance of perfection, as against all third parties, of the
Certificateholders' right, title and interest in and to the Contracts
(including, without limitation, the security interests in the Manufactured Homes
granted thereby).
ARTICLE V
SERVICING OF CONTRACTS
SECTION 5.01. Responsibility for Contract Administration. The
Servicer will have the sole obligation to manage, administer, service and make
collections on the Contracts and perform or cause to be performed all
contractual and customary undertakings of the holder of the Contracts to the
Obligor. The Company, if it is the Servicer, may delegate some or all of its
servicing duties to a wholly-owned subsidiary of the Company, for so long as
such subsidiary remains, directly or indirectly, a wholly owned subsidiary of
the Company. Notwithstanding any such delegation the Company shall retain all of
the rights and obligations of the Servicer hereunder. The Trustee, at the
request of a Servicing Officer, shall furnish the Servicer with any powers of
attorney or other documents necessary or appropriate to enable the Servicer to
carry out its servicing and administrative duties hereunder. The Company is
hereby appointed the Servicer until such time as any Service Transfer shall be
effected under Article VII.
SECTION 5.02. Standard of Care. In managing, administering,
servicing and making collections on the Contracts pursuant to this Agreement,
the Servicer will exercise that degree of skill and care consistent with the
degree of skill and care that the Servicer exercises with respect to similar
contracts serviced by the Servicer; provided, however, that (i) such degree of
skill and care shall be at least as favorable as the degree of skill and care
generally applied by servicers of manufactured housing installment sales
contracts for institutional investors and (ii) notwithstanding the foregoing,
the Servicer shall not release or waive the right to collect the unpaid balance
on any Contract.
44
SECTION 5.03. Records. The Servicer shall, during the period
it is servicer hereunder, maintain such books of account and other records as
will enable the Trustee to determine the status of each Contract.
SECTION 5.04. Inspection; Computer Tape. (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,
which have not previously been provided to the Trust, relating to the Contracts
and will cause its personnel to assist in any examination of such records by the
Trustee or its authorized agents. The examination referred to in this Section
will be conducted in a manner which does not unreasonably interfere with the
Servicer's normal operations or customer or employee relations. Without
otherwise limiting the scope of the examination the Trustee may make, the
Trustee may, but shall not be obligated to, verify the status of each Contract
and review the Electronic Ledger and records relating thereto for conformity to
Monthly Reports prepared pursuant to Article VI and compliance with the
standards represented to exist as to each Contract in this Agreement.
(b) At all times during the term hereof, the Servicer shall
keep available a copy of the List of Contracts at its principal executive office
for inspection by Certificateholders.
(c) On or before the ninth Business Day of each month, the
Servicer will provide to the Trustee a Computer Tape setting forth a list of all
the outstanding Contracts and the outstanding principal balance of each such
Contract as of the end of the immediately preceding Collection Period, together
with such other information as reasonably required by the Trustee in order to
effect a service transfer.
SECTION 5.05. Certificate Account. (a) On or before the
Closing Date, the Trustee shall establish the Certificate Account on behalf of
the Trust, which must be an Eligible Account. The Certificate Account shall be
entitled _____________________ as Trustee for the benefit of holders of Access
Financial Manufactured Housing Contract Senior/Subordinate Pass-Through
Certificates, Series ______ (Access Financial Lending Corp., Servicer)." The
Servicer shall pay into the Certificate Account as promptly as practicable (but
in no event later than the second Business Day) following receipt thereof all
payments from Obligors and Net Liquidation Proceeds, other than late payment
penalty fees, extension fees and assumption fees, which shall be retained by the
Servicer as additional compensation for servicing the Contracts. Any amounts
reimbursable to the Servicer pursuant to Section 8.02(c)(i) with respect to a
particular Contract may be retained by the Servicer from Liquidation Proceeds.
The Trustee shall deposit into the Certificate Account on the Remittance Dates
occurring in , and (x) the Pre-Funding Earnings transferred
by the Trustee pursuant to Section 5.14 hereof, (y) the Capitalized Interest
Requirement to be transferred on such Remittance Dates
45
from the Capitalized Interest Account, pursuant to Section 5.14 hereof and (z)
the portion of the amount, if any, to be transferred on such Remittance Date
from the Pre-Funding Account, pursuant to Section 5.14 hereof. All amounts paid
into the Certificate Account under this Agreement shall be held in trust for the
Trustee and the Certificateholders until payment of any such amounts is
authorized under this Agreement. Only the Trustee may withdraw funds from the
Certificate Account.
(b) If the Servicer so directs, the institution maintaining
the Certificate Account shall, in the name of the Trustee in its capacity as
such, invest the amounts in the Certificate Account in Eligible Investments that
mature not later than one Business Day prior to the next succeeding Remittance
Date. Once such funds are invested, such institution shall not change the
investment of such funds. All income and gain from such investments shall be
added to the Certificate Account and distributed on such Remittance Date
pursuant to Section 8.03(a). The Trustee shall in no way be liable for losses on
amounts in accordance with the provisions hereof. The Servicer shall direct the
investment of funds in the Certificate Account in Eligible Investments such that
any funds in the Certificate Account not so invested are insured to the extent
permitted by law by the Federal Deposit Insurance Corporation. "Eligible
Investments" are any of the following:
(i) direct obligations of, and obligations fully guaranteed
by, the United States of America, the Federal Home Loan Mortgage
Corporation, the Federal National Mortgage Association, or any agency
or instrumentality of the United States of America the obligations of
which are backed by the full faith and credit of the United States of
America and which are noncallable;
(ii)(A) demand and time deposits in, certificates of deposit of,
bankers' acceptances issued by, or federal funds sold by any depository
institution or trust company (including the Trustee or any Affiliate of
the Trustee, acting in its commercial capacity) incorporated under the
laws of the United States of America or any State thereof and subject
to supervision and examination by federal and/or state authorities, so
long as, at the time of such investment or contractual commitment
providing for such investment, the commercial paper or other short-term
deposits of such depository institution or trust company (or, in the
case of a depository institution which is the principal subsidiary of a
holding company, the commercial paper or other short-term debt
obligations of such holding company) are rated at least ___ by ______
and at least __ by ______ (if rated by _______) and (B) any other
demand or time deposit or certificate of deposit which is fully insured
by the Federal Deposit Insurance Corporation;
46
(iii) shares of an investment company registered under the
Investment Company Act of 1940, whose shares are registered under the
Securities Act of 1933 and have the highest credit rating then
available from ______ and _____ (if rated by _____) and whose only
investments are in securities described in clauses (i) and (ii)(A)
above;
(iv) repurchase obligations with respect to (A) any security
described in clause (i) above or (B) any other security issued or
guaranteed by an agency or instrumentality of the United States of
America, in either case entered into with a depository institution or
trust company (acting as principal) described in clause (ii)(A) above;
(v) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States of
America or any State thereof which have a credit rating of at least ___
from ______ and in one of the two highest rating categories from _____
(if rated by _____) at the time of such investment; provided, however,
that securities issued by any particular corporation will not be
Eligible Investments to the extent that investment therein will cause
the then outstanding principal amount of securities issued by such
corporation and held as part of the corpus of the Trust to exceed __%
of amounts held in the Certificate Account; and
(vi) commercial paper or money-market funds having a rating of
at least ___ from ______ and at least ___ by _____ (if rated by _____)
at the time of such investment.
Securities not entitled to receive payments of principal
(i.e., "interest-only" securities) shall not be "Eligible Investments."
The Trustee may trade with itself or an Affiliate in the
purchase or sale of such Eligible Investments.
(c) If at any time the Trustee receives notice (from either of
______ or _____, the Servicer or otherwise) that the Certificate Account has
ceased to be an Eligible Account, the Trustee must, as soon as practicable but
in no event later than 5 Business Days of the Trustee's receipt of such notice,
transfer the Certificate Account and all funds and Eligible Investments therein
to an Eligible Account. Following any such transfer, the Trustee must notify
each of Moody's, Fitch and the Servicer of the location of the Certificate
Account.
SECTION 5.06. Enforcement. (a) The Servicer shall, consistent
with customary servicing procedures and the terms of this Agreement, act with
respect to the Contracts in such manner as will maximize the receipt of
principal and interest on such Contracts and liquidation proceeds with respect
to Liquidated Contracts.
47
(b) The Servicer may sue to enforce or collect upon Contracts,
in its own name, if possible, or as agent for the Trust. 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 Trust 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.
(c) The Servicer shall exercise any rights of recourse against
third persons that exist with respect to any Contract in accordance with the
servicer's usual practice. In exercising recourse rights, the Servicer is
authorized on the Trustee's behalf to reassign the Contract or to resell the
related Manufactured Home to the person against whom recourse exists at the
price set forth in the document creating the recourse.
(d) So long as the Company is the Servicer, the Servicer may
grant to the Obligor on any Contract any rebate, refund or adjustment out of the
Certificate Account that the Servicer in good faith believes is required because
of prepayment in full of the Contract. The Servicer will not permit any
rescission or cancellation of any Contract.
(e) 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 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 Contract into conformity with the representations and
warranties described in Section 3.04 hereof, 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 any REMIC held by the Trust to fail to qualify
as a REMIC or result in the imposition of taxes on any REMIC held by the Trust
under the REMIC Provisions.
(f) The Servicer may enforce any due-on-sale clause in a
Contract if such enforcement is called for under its then current servicing
policies for obligations similar to the Contracts, provided that such
enforcement is permitted by applicable law and will not adversely affect any
applicable insurance policy. If an assumption of a Contract is permitted by the
Servicer upon conveyance of the related Manufactured Home, the Servicer shall
use its best efforts to obtain an assumption agreement in connection
48
therewith and add such assumption agreement to the related Contract File.
(g) Any provision of this Agreement to the contrary
notwithstanding, the Servicer shall not agree to the modification or waiver of
any provision of a Contract at a time when such Contract is not in default or
such default is not reasonably foreseeable, if such modification or waiver would
be treated as a taxable exchange under Section 1001 of the Code.
SECTION 5.07. Trustee to Cooperate. (a) Upon payment in full
on any Contract, the Servicer will notify the Trustee in writing and the Company
(if the Company is not the Servicer) on the next succeeding Remittance Date by
certification of a Servicing Officer (which certification shall include a
statement to the effect that all amounts received in connection with such
payments which are required to be deposited in the Certificate Account pursuant
to Section 5.05 have been so deposited). The Servicer is authorized to execute
an instrument in satisfaction of such Contract and to do such other acts and
execute such other documents as the Servicer deems necessary to discharge the
Obligor thereunder and eliminate the lien on the related real estate. The
Servicer shall determine when a Contract has been paid in full; to the extent
that insufficient payments are received on a Contract credited by the Servicer
as prepaid or paid in full and satisfied, the shortfall shall be paid by the
Servicer out of its own funds.
(b) From time to time as appropriate for servicing and
foreclosure in connection with any Contract, the Trustee shall, upon receipt of
a Request for Release in substantially the form of Exhibit L hereto signed by a
Servicing Officer, cause the original Contract to be released to the Servicer
and shall execute such documents as the Servicer shall deem necessary to the
prosecution of any such proceedings. Upon request of a Servicing Officer, the
Trustee shall perform such other acts as reasonably requested by the Servicer
and otherwise cooperate with the Servicer in enforcement of the
Certificateholders' rights and remedies with respect to Contracts.
(c) The Servicer's receipt of a Contract shall obligate the
Servicer to return the original Contract to the Trustee when its need by the
Servicer has ceased unless the Contract shall be paid in full, liquidated or
repurchased or replaced as described in Section 3.05.
SECTION 5.08. Costs and Expenses. All costs and expenses
incurred by the Servicer in carrying out its duties hereunder, including all
fees and expenses incurred in connection with the enforcement of Contracts
(including enforcement of defaulted Contracts and repossessions of Manufactured
Homes securing such Contracts) shall be paid by the Servicer and the Servicer
shall not be entitled to reimbursement hereunder, except that the Servicer shall
be reimbursed out of the Liquidation Proceeds of a Liquidated Contract for
Liquidation Expenses incurred
49
by it, together with unreimbursed Delinquency Advances relating thereto and
except as provided in Section 5.13(b). The Servicer shall not incur such
liquidation expenses unless it determines in its good faith business judgment
that incurring such expenses will increase the Net Liquidation Proceeds on the
related Contract.
SECTION 5.09. Maintenance of Insurance. (a) Except as
otherwise provided in subsection (b) of this Section 5.09, 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 insurance policy that is customary for
manufactured housing, issued by a company authorized to issue such policies in
the state in which the related Manufactured Home is located and in an amount
which is not less than the maximum insurable value of such Manufactured Home or
the principal balance due from the Obligor on the related Contract, whichever is
less; provided, however, that the amount of coverage provided by each Hazard
Insurance Policy shall be sufficient to avoid the application of any coinsurance
clause contained therein; and provided, further, that such Hazard Insurance
Policies may provide for customary deductible amounts. 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
separately add such premium to the obligor's obligation as provided by the
Contract. The amount of any such premium shall not be added to the remaining
principal balance of the Contract, but shall be tracked by the Servicer
separately. 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 5.09, 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 on the Obligor's interest in the
Contracts resulting from the absence or insufficiency of individual Hazard
Insurance Policies. Any such blanket policy shall be substantially in the form
and in the amount carried by the Servicer as of the date of this Agreement. The
Servicer shall pay the premium for such policy on the basis described therein
and shall deposit into the Certificate Account from its own funds any deductible
amount with respect to claims under such blanket insurance policy relating to
the Contracts. The Servicer shall not, however, be required to deposit any
deductible amount with respect to claims under individual Hazard Insurance
Policies maintained pursuant to subsection (a) of this Section. If the insurer
under such blanket insurance policy shall cease to be
50
acceptable to the Servicer, the Servicer shall exercise its best reasonable
efforts to obtain from another insurer a replacement policy comparable to such
policy.
(c) With respect to each Manufactured Home that has been
repossessed in connection with a defaulted Contract, the Servicer shall either
(1) maintain one or more Hazard Insurance Policies thereon or (ii) self-insure
such Manufactured Homes and deposit into the Certificate Account from its own
funds any losses caused by damage to such Manufactured Home that would have been
covered by a Hazard Insurance Policy.
(d) The Servicer shall keep in force throughout the term of
this Agreement (i) a policy or policies of insurance covering errors and
omissions for failure to maintain insurance as required by this Agreement and
(ii) a fidelity bond. Such policy or policies and such fidelity bond shall be in
such form and amount as is generally customary among Persons which service a
portfolio of manufactured housing installment sales contracts and installment
loan agreements having an aggregate principal amount of $100,000,000 or more and
which are generally regarded as servicers acceptable to institutional investors.
SECTION 5.10. Repossession. Notwithstanding the standard of
care specified in Section 5.02, the Servicer shall commence procedures for the
repossession of any Manufactured Home or the foreclosure upon any Mortgaged
Property or take such other steps that in the Servicer's reasonable judgment
will maximize the receipt of principal and interest or Net Liquidation Proceeds
with respect to the Contract secured by such Manufactured Home subject to the
requirements of the applicable state and federal law, no later than five
Business Days after the time when such Contract becomes a Defaulted Contract.
SECTION 5.11. [Reserved].
SECTION 5.12. Retitling; Security Interests. (a) If, at any
time, a Service Transfer has occurred and the Company is no longer the Servicer
and the new Servicer is unable to foreclose upon a Manufactured Home because the
title document for such Manufactured Home does not show such Servicer or the
Trustee as the holder of the first security interest in the Manufactured Home,
such Servicer shall take all necessary steps to apply for a replacement title
document showing it or the Trustee as the secured party.
(b) If, at any time, the Trustee attempts to foreclose upon a
Manufactured Home and is unable to do so because the title document for such
Manufactured Home does not show the Trustee as the holder of the first security
interest in the Manufactured Home, the Company shall take all steps necessary to
apply for a replacement title document showing it or the Trustee as the secured
party.
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(c) In order to facilitate the Servicer's actions, as
described in subsections (a) and (b) of this section, the Company will provide
the Servicer and/or the Trustee with any necessary power of attorney permitting
it to retitle the Manufactured Home, and the Trustee shall be entitled to
enforce the Company's obligations under such subsections by seeking specific
performance thereof.
(d) If the Servicer is still unable to retitle the
Manufactured Home, the Company will take all actions necessary to act with the
Servicer to foreclose upon the Manufactured Home, including, as appropriate, the
filing of any UCC-1 or UCC-2 financing statements necessary to perfect the
security interest in any Manufactured Home that constitutes a fixture under the
laws of the jurisdiction in which it is located and all actions necessary to
perfect the security interest in any Manufactured Home that is considered or
classified an part of the real estate on which it is located under the laws of
the jurisdiction in which it is located.
(e) The Contract Files for each Land Secured Contract are
required to contain evidence that the Company has a Mortgage on the real
property underlying such Land Secured Contract. Neither the Company nor the
Seller will be required to prepare, deliver or record any assignments to the
Trustee in recordable form for the Mortgages related to such Land Secured
Contracts. However, on or before the Closing Date, the Company shall deliver to
the Trustee an executed power of attorney substantially in the form of Exhibit G
hereto, authorizing the Trustee to execute and record assignments of Mortgages
securing Land Secured Contracts from the Company to the Trustee in the event
that recordation of such assignments becomes necessary for foreclosure on the
related property by or on behalf of the Trustee. Pursuant to such power of
attorney, at the Servicer's instruction, the Trustee shall execute any such
assignments as are provided to the Trustee by the Servicer. After execution of
any such assignments, the Trustee shall redeliver such assignments to the
Servicer at the Servicer's expense. Any expenses incurred by the Servicer in
connection with the foregoing or in connection with its recordation of
assignments in preparation for a foreclosure on a Land Secured Contract shall
constitute Liquidation Expenses.
SECTION 5.13. Delinquency Advances and Servicing Advances. (a)
If the Servicer has not received all or any portion of any scheduled payment of
principal and interest due during a Collection Period by the related
Determination Date, the Servicer shall deposit to the Certificate Account not
later than 10 a.m. East Coast time on the Business Day prior to the related
Remittance Date the amount of any such deficiency, (such amount being a
"Delinquency Advance"); provided, that the Servicer is only required to make a
Delinquency Advance if the Servicer in its good faith business judgment believes
that such amount will ultimately be recovered on or with respect to the related
Contract.
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The Servicer shall be permitted to fund its payment of
Delinquency Advances from its own funds, and from the Amount Held for Future
Distribution then on deposit in the Certificate Account net of amounts thereof
applied pursuant to Section 8.03(b). In any event, to the extent the Servicer
uses any portion of the Amount Held For Future Distribution, the Servicer must
reimburse the Certificate Account by the next Remittance Date (or such later
Remittance Date) to the extent necessary to provide for the required remittance
to Certificateholders on such date.
Any Delinquency Advance funded by the Servicer with respect to
a particular Contract from its own funds shall be reimbursable to the Servicer
from Liquidation Proceeds and other collections received by the Servicer with
respect to such Contract; provided, that to the extent that any Delinquency
Advance is later determined to be a Nonrecoverable Delinquency Advance, such
amount shall be reimbursable to the Servicer from collections on the Contracts
generally, as provided in Section 8.02(c).
(b) The Servicer will pay all reasonable and customary
"out-of-pocket" costs and expenses (including reasonable legal fees) incurred in
the performance of its servicing obligations including, but not limited to, the
cost of (i) advances made for taxes, insurance, ground rents and other charges
against the related Manufactured Home, (ii) any enforcement or judicial
proceedings, including foreclosures and (iii) the management and liquidation of
REO Property (including, without limitation, realtors' commissions and any
required repairs). Each such expenditure will constitute a "Servicing Advance".
The Servicer may recover Servicing Advances from the Obligors to the extent
permitted by the Contracts or, if not theretofore recovered from the Obligor on
whose behalf such Servicing Advance was made, from Liquidation Proceeds realized
upon the liquidation of the related Contract. The Servicer shall not recover
Servicing Advances from collections on any other Contract; provided, that if not
all invoices relating to the Servicing Advances with respect to a Contract have
been received by the Servicer at the time the Servicer receives collections on
account of the related Contract, the Servicer shall nevertheless deposit all
such collections to the Certificate Account and shall be thereafter permitted to
receive reimbursement from collections on the Contracts generally with respect
to such invoices; provided, further, that in no event shall the Servicer be
cumulatively reimbursed for Servicing Advances with respect to a Contract in an
amount in excess of the Liquidation Proceeds relating to such Contract.
Section 5.14. Pre-Funding Account and Capitalized Interest
Account. (a) The Trustee shall establish and maintain, at the its corporate
trust office, a Pre-Funding Account and a Capitalized Interest Account, each to
be held by the Trustee in the name of the Trust for the benefit of the Owners of
the Certificates.
53
(b) On the Closing Date, the Trustee will deposit, on behalf
of the Owners of the Certificates, in the Pre-Funding Account the Original
Pre-Funded Amount, from the proceeds of the sale of the Certificates.
(c) On any Subsequent Transfer Date, the Company shall
instruct the Trustee to withdraw from the Pre-Funding Account an amount equal to
100% of the aggregate Pool Scheduled Principal Balance of the Subsequent
Contracts sold to the Trust on such Subsequent Transfer Date and pay such amount
to or upon the order of the Company upon satisfaction of the conditions set
forth in Section 2.05 hereof with respect to such transfer. In no event shall
the Company be permitted to instruct the Trustee: to release from the
Pre-Funding Account with respect to Subsequent Contracts to be transferred to
the Trust an amount in excess of the Original Pre-Funded Amount.
(d) If (x) the Pre-Funded Amount has not been reduced to zero
by or (y) the Pre-Funded Amount has been reduced to $100,000 or less on
either the or the Remittance Dates, in either case after
giving effect to any reductions in the Pre-Funded Amount on such Remittance
Date, the Company shall instruct the Trustee to withdraw from the Pre-Funding
Account on such Remittance Date and deposit in the Certificate Account the
difference, if any, between (A) the Original Pre-Funded Amount and (B) all
amounts theretofore withdrawn from the Pre-Funding Account with respect to
Subsequent Contracts.
(e) On the Remittance Dates occurring in ,
and the Trustee shall transfer the Pre-Funding Earnings, if any, applicable to
each such Remittance Date from the Pre-Funding Account to the Certificate
Account. On the Remittance Dates occurring in , and
the Trustee shall distribute directly to the Owners of the Class R Certificates
the Excess Pre-Funding Earnings, if any, applicable to each such Remittance
Date.
(f) On each Subsequent Transfer Date the Company may instruct
the Trustee to withdraw from the Capitalized Interest Account and pay on such
Subsequent Transfer Date to the Owners of the Class R Certificates the
Overfunded Interest Amount for such Subsequent Transfer Date, as calculated by
the Company pursuant to Section 2.05(f) hereof.
(g) On the Remittance Dates occurring in ,
and the Trustee shall transfer from the Capitalized Interest Account to the
Certificate Account, the Capitalized Interest Requirement, if any, for such
Remittance Dates.
(h) On the Remittance Date, any amounts remaining in the
Capitalized Interest Account after taking into account the transfers on such
Remittance Date described in clause (f) above shall be paid to the Owners of the
Class R Certificates, and the Capitalized Interest Account shall be closed.
54
ARTICLE VI
REPORTS AND TAX MATTERS
SECTION 6.01. Monthly Reports. No later than 1:00 p.m. on each
Determination Date, the Servicer shall deliver to the Trustee, the Paying Agent,
the Company (if the Company is not the Servicer), ______ and _____ a "Monthly
Report," substantially in the form of Exhibit H hereto.
SECTION 6.02. Certificates of Servicing Officer. (a) Each
Monthly Report pursuant to Section 6.01 shall be accompanied by a certificate of
a Servicing Officer substantially in the form of Exhibit I, certifying (x) as to
the weighted average number of months in inventory of all repossessed
Manufactured Homes (calculated as of the close of the preceding Collection
Period) and (y) as to the accuracy of the Monthly Report and that no Event of
Termination or event that with notice or lapse of time or both would become an
Event of Termination has occurred, or if such event has occurred and is
continuing, specifying the event and its status.
(b) (i) For the first Collection Period following the Closing
Date, if the Company is the Servicer, the Company will cause its Internal Audit
staff to perform the steps described in the Report on Agreed Upon Procedures,
attached as Exhibit J hereto. The Company will cause its independent accountants
to re-test these procedures as necessary in order to achieve a level of comfort
with the work performed by the Company's Internal Audit Staff. If the level of
review is within the tolerance levels outlined, the monthly review requirement
shall then be terminated.
(ii) For the first two Collection Periods following the
date which is 60 days after the Servicing Transfer,
if the Company is the Servicer, the Company will
cause its Internal Audit staff to perform the steps
described in the Report on Agreed Upon Procedures,
attached as Exhibit J hereto. The Company will cause
its independent accountants to re-test these
procedures as necessary in order to achieve a level
of comfort with the work performed by the Company's
Internal Audit Staff. Upon satisfactory results (as
outlined in the Report on Agreed Upon Procedures)
for two consecutive months, the independent
accountants would perform the procedures in their
entirety in the third month without the Internal
Audit assistance considered. If the level of review
in this month is again within the tolerance levels
outlined, the monthly review requirement shall then
be terminated.
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In the event that any of the three reviews do not meet the
tolerance levels as outlined, the test work requirement shall revert to the
original standard and resets to three consecutive "clean" reviews within the
acceptable tolerance range before termination of the requirement.
(iii) In addition to the monthly review requirements, an
annual execution of the outlined procedures shall be
performed, beginning (x) in _____ ____, if the
Servicing Transfer has not occurred by
_____________, or (y) in ______________, if the
Servicing Transfer has occurred by _____ _______ and
continuing annually.
(c) If the Company is the Servicer, the Company shall give
prompt written notice to ______ and to _____ of the occurrence of either of the
following:
(i) any change in control of the Servicer; or
(ii) the departure of either the Servicer's President or
of the Servicer's Vice President of National
Operations.
SECTION 6.03. Other Data. In addition, the Company and (if
different from the Company) the Servicer shall, on request of the Trustee,
______ or _____ furnish the Trustee, and/or ______ or _____ such underlying data
as may be reasonably requested.
SECTION 6.04. Annual Report of Accountants. On or before
________ of each year, commencing ______________, 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 make available to the
Trustee, the Company, ______ and _____ a report stating that such firm has
examined selected documents and records relating to the Servicer's servicing of
manufactured housing conditional sales contracts, including the contracts
covered by this Agreement, in accordance with the Mortgage Bankers Association
of America's Uniform Single Audit Program for Mortgage Bankers, or any successor
uniform program, and that, on the basis of such examination, such servicing has
been conducted in compliance with the minimum servicing standards identified
therein, except for such significant exceptions or errors in records that, in
the opinion of such firm, generally accepted auditing standards requires it to
report.
SECTION 6.05. Statements to Certificateholders. (a) The
Servicer shall prepare and furnish to the Trustee and the Company the statements
relating to the Certificates, as specified below, on or before the third
Business Day next preceding each Remittance Date.
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(b) Concurrently with each distribution charged to the
Certificate Account the Trustee, so long as it has received the Monthly Report
from the Servicer, shall forward or cause to be forwarded by mail to each Holder
of a Certificate and (if the Company is not the Servicer) the Company a
statement setting forth the following:
(i) the amount of such distribution to Holders of the
related Class of Certificates allocable to interest,
separately identifying any Unpaid Interest Shortfall
included in such distribution and any remaining
Unpaid Interest Shortfall after giving effect to
such distribution;
(ii) the amount of such distribution to Holders of the
related Class of Certificates allocable to
principal, separately identifying the aggregate
amount of any Principal Prepayments included
therein, the aggregate Scheduled Principal Balance
of all Contracts that became Liquidated Contracts
during the related Collection Period and the
aggregate Scheduled Principal Balance of all
Contracts repurchased with respect to such
Remittance Date;
(iii) the amount, if any, by which the Formula
Distribution Amount with respect to the related
Class for such Remittance Date exceeds the
Distribution Amount with respect to the related
Class for such Remittance Date;
(iv) the Certificate Principal Balance of the related
Class after giving effect to the distribution of
principal on such Remittance Date;
(v) the Senior Percentage and the Class B Percentage for
such Remittance Date and the following Remittance
Date;
(vi) the Pool Scheduled Principal Balance of the
Contracts as of the close of the related Collection
Period;
(vii) the Pool Factor;
(viii) the number and aggregate principal balances of
Contracts delinquent (a) 30-59 days and (b) 60 or
more days calculated, in each case, as of the close
of business on the last day of the related
Collection Period;
(ix) the number of Manufactured Homes that were
repossessed during the Collection Period ending
immediately prior to such Remittance Date;
57
(x) the number of Manufactured Homes that were
repossessed but remain in inventory as of the last
day of the Collection Period ending immediately
prior to such Remittance Date;
(xi) the Overcollateralization Amount for such Remittance
Date, after giving effect to the distribution of
principal on such Remittance Date, together with any
Overcollateralization Reduction Amount for such
Remittance Date;
(xii) the Class B Principal Distribution Tests (as set
forth in Exhibit H hereto);
(xiii) the Weighted Average Net Contract Rate of all
outstanding Contracts; and
(xiv) the amount of Delinquency Advances reimbursable to
the Servicer.
The Trustee and the Servicer shall inform any requesting
Certificateholder, the Company, _____________________ ____________ or
____________________________ inquiring by telephone of the information contained
in the most recent Monthly Report.
In the case of information furnished pursuant to clauses (i)
through (iv) above (except in the case of the Class C and Residual
Certificates), the amounts shall be expressed as a dollar amount per Certificate
with $1,000 denomination.
Within a reasonable period of time after the end of each
calendar year, the Trustee shall furnish or cause to be furnished to each Person
who at any time during the calendar year was the Holder of a Certificate a
statement containing the information with respect to interest accrued and
principal paid on its Certificates during such calendar year. Such obligation of
the Trustee shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Trustee pursuant
to any requirements of the Code as from time to time in force.
SECTION 6.06. Payment of Taxes. The Servicer shall be
responsible for and agrees to prepare, make and file all federal, state, local
or other tax returns, information statements and other returns and documents of
every kind and nature whatsoever required to be made or filed by or on behalf of
the Lower-Tier REMIC and the Upper-Tier REMIC pursuant to the Code and other
applicable tax laws and regulations. Such responsibility shall include (i)
electing to treat each REMIC included in the Trust as a REMIC (which election
shall apply to the taxable period ending _________________ and each calendar
year thereafter) in such manner as the applicable Treasury regulations may
prescribe, (ii) filing applicable Forms 1066 and Schedule Q and any form
required under section 6050K of the Code, if applicable to REMICs, and (iii)
report to Certificateholders, with respect to the allocation of expenses
pursuant to section 212
58
of the Code, if and to the extent the Servicer has been notified in writing as
to the identity any Certificateholder with respect to which such reporting is
required by the Code. Each such return, statement and document shall, to the
extent required by the Code or other applicable law, be signed on behalf of the
Lower-Tier REMIC and the Upper-Tier REMIC by the Trustee. The Trustee shall have
no responsibility whatsoever for the accuracy or completeness of any such
return, statement or document. The Servicer agrees to indemnify the Trustee and
hold it harmless for, from, against and in respect to any and all liability,
loss, damage and expense which may be incurred by the Trustee based upon or as a
result of the Trustee's execution of any and all such tax returns, statements
and documents; provided, that the Servicer shall not be so required to indemnify
the Trustee to the extent that any such loss, liability, etc., results from the
Trustee's own negligence or misconduct. Residual Certificateholders hereby
designate the Servicer to be their agent and to serve as the "tax matters
person" on behalf of each REMIC held by the Trust in the same manner as a
partnership may designate a "tax matters partner," as such term is defined in
Section 6231(a) (7) of the Code. The Servicer may, at its expense, retain such
outside assistance as it deems necessary in the performance of its obligations
under this paragraph.
Each of the Holders of the Certificates, by acceptance
thereof, agrees to file tax returns consistent with and in accordance with any
elections, decisions or other reports made or filed with regard to federal,
state or local taxes on behalf of the Trust. The Servicer, as the tax matters
person and as agent for the Residual Certificateholders, shall represent the
Trust in connection with all examinations of the Trust's affairs by tax
authorities, including resulting administrative and judicial proceedings. Each
of the Holders of the Certificates, by acceptance thereof, agrees to cooperate
with the Servicer in such matters and to do or refrain from doing any or all
things reasonably required by the Servicer to conduct such proceedings, provided
that no such action shall be required by the Servicer of any Certificateholder
that would entail unnecessary or unreasonable expenses for such
Certificateholder in the performance of such action.
The Residual Certificateholders shall pay, on behalf of the
Lower-Tier REMIC or the Upper-Tier REMIC, as the case may be, in which it has an
interest, any foreign, federal, state or local income, property, excise, sales,
receipts or any other similar or related taxes or charges which may be imposed
upon the Trust or any REMIC held by the Trust or otherwise and shall, to the
extent provided in Section 10.06, be entitled to be reimbursed out of the
Certificate Account or, if such tax or charge results from a failure by the
Company or any Servicer to comply with the provisions of Section 2.04 or this
Section 6.06, the Company or such Servicer, as the case may be, shall indemnify
the Residual Certificateholders for the payment of any such tax or charge. The
Trustee shall be entitled to withhold from amounts otherwise
59
distributable to the Residual Certificateholders any taxes or charges payable by
the Residual Certificateholders hereunder.
In the event any Residual Certificate is transferred to a
"disqualified organization," within the meaning of Section 860E(e)(5) of the
Code (including any Person described in Section 860E(e)(3) or (6) of the Code),
pursuant to Section 860D(a)(6)(B) of the Code the Servicer, as agent for the
Residual Certificateholders, shall provide to the Internal Revenue Service and
the persons specified in sections 860E(e)(3) and (6) of the Code all information
necessary for the application of Section 860E(e) and any other applicable
provision of the Code with respect to the transfer of the Certificate to such a
disqualified organization, including, without limitation, a computation showing
the present value of the total anticipated excess inclusions with respect to
such Residual Certificate for periods after the transfer as defined in the REMIC
Provisions. In addition, to the extent required by the REMIC Provisions, the
Company shall, upon the written request of persons designated in Section
860E(e)(3) of the Code, furnish to such requesting party and the Internal
Revenue Service information sufficient to compute the present value of
anticipated excess inclusions within 60 days of the receipt of such written
request.
In performing its duties under this Section, the Servicer,
and, if different, the tax matters person, shall be entitled to rely on
qualified experts retained by the Servicer or the Trustee to provide all
returns, reports, computations and notices required under this Section. In
addition, the Servicer and, if different, the tax matters person, in performing
their duties under this Section, may rely on proposed regulations of the United
States Department of the Treasury.
ARTICLE VII
SERVICE TRANSFER
SECTION 7.01. Event of Termination. "Event of Termination"
means the occurrence of any of the following:
(a) Any failure by the Servicer to make any deposit into the
Certificate Account required to be made hereunder and the continuance of such
failure for a period of five Business Days after the Servicer has become aware,
or should have become aware, that such deposit was required;
(b) Failure on the Servicer's part to observe or perform in
any material respect any covenant or agreement in this Agreement (other than a
covenant or agreement which is elsewhere in this Section specifically dealt
with) which continues unremedied for 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Trustee or to the Servicer and the Trustee by Holders of
Senior Certificates, Class A-6 Certificates and Class B
60
Certificates evidencing, as to any such Class, Percentage Interests aggregating
not less than 25%;
(c) Any assignment by the Servicer of its duties hereunder,
except as specifically permitted hereunder, or any attempt to make such an
assignment;
(d) A court or other governmental authority having
jurisdiction in the premises shall have entered a decree or order for relief in
respect of the Servicer in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Servicer, as the case may be, or for any substantial
liquidation of its affairs, and such order remains undischarged and unstayed for
at least 60 days;
(e) The Servicer shall have commenced a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall have consented to the entry of an order for relief in an
involuntary case under any such law, or shall have consented to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee, custodian
or sequestrator (or other similar official) of the Servicer or for any
substantial part of its property, or shall have made any general assignment for
the benefit of its creditors, or shall have failed to, or admitted in writing
its inability to, pay its debts as they become due, or shall have taken any
corporate action in furtherance of the foregoing; or
(f) The failure of the Servicer to be an Eligible Servicer.
SECTION 7.02. Transfer. (a) If an Event of Termination has
occurred and is continuing, either the Trustee or Certificateholders with
aggregate Percentage Interests representing more than 50% of the Trust, by
notice in writing to the Servicer (and to the Trustee if given by the
Certificateholders) may terminate all (but not less than all) of the Servicer's
management, administrative, custodial, servicing and collection functions (such
termination being herein called a "Service Transfer"). On receipt of such notice
(or, if later, on a date designated therein), or upon resignation of the
Servicer in accordance with Section 12.01, all authority and power of the
Servicer under this Agreement, whether with respect to the Contracts, the
Servicing Files or otherwise, shall pass to and be vested in the Trustee
pursuant to and under this Section 7.02; and, 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, without limitation, documents required to make the Trustee or a
successor servicer the sole lienholder or legal title holder of record of each
Manufactured Home) and to do any and all acts or things necessary or appropriate
to effect the purposes of such notice of termination. Each of the
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Company and the Servicer agrees to cooperate with the Trustee in effecting the
termination of the responsibilities and rights of the Servicer hereunder,
including, without limitation, the transfer to the Trustee for administration by
it of all cash amounts which shall at the time be held by the Servicer for
deposit, or have been deposited by the Servicer, in the Certificate Account, or
for its own account in connection with its services hereafter or thereafter
received with respect to the Contracts and the execution of any documents
required to make the Trustee or a successor servicer the sole lienholder or
legal title holder of record in respect of each Manufactured Home. The Servicer
shall be entitled to receive any other amounts which are payable to the Servicer
under the Agreement, at the time of the termination of its activities as
Servicer. The Servicer shall transfer to the new servicer (i) the Servicer's
records relating to the Contracts in such electronic form as the new servicer
may reasonably request and (ii) any Contracts and Servicing Files in the
Servicer's possession.
SECTION 7.03. Trustee to Act; Appointment of Successor. On and
after the time the Servicer receives a notice of termination pursuant to Section
7.02 or the resignation of the Servicer in accordance with Section 12.01, the
Trustee shall be the successor in all respects to the Servicer in its capacity
as servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Servicer by the terms and provisions hereof and
the Servicer shall be relieved of such responsibilities, duties and liabilities
arising after such Service Transfer; provided, however, that (i) the Trustee
will not assume any obligations of the Company pursuant to Sections 3.04 and
3.05 and (ii) the Trustee shall not be liable for any acts or omissions of the
Servicer occurring prior to such Service Transfer or for an breach by the
Servicer of any of its obligations contained herein or in any related document
or agreement. As compensation therefor, the Trustee shall be entitled to receive
reasonable compensation out of the Monthly Servicing Fee. Notwithstanding the
above, the Trustee may, if it shall be unwilling so to act, or shall, if it is
legally unable so to act, appoint, or petition a court of competent jurisdiction
to appoint, an Eligible Servicer as the successor to the Servicer hereunder in
the assumption of all or any part of the responsibilities, duties or liabilities
of the Servicer hereunder. Pending appointment of a successor to the Servicer
hereunder, unless the Trustee is prohibited by law from so acting, the Trustee
shall act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Contracts as it and such
successor shall agree; provided, however, that no such monthly compensation
shall, without the written consent of 100% of the Certificateholders, exceed the
Monthly Servicing Fee. The Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession.
SECTION 7.04. Notification to Certificateholders.
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(a) Promptly following the occurrence of any Event of Termination, the Servicer
shall give written notice thereof to the Trustee, the Company, the Seller,
__________, __________ and the Certificateholders at their respective addresses
appearing on the Certificate Register.
(b) Within ten days following any termination or appointment
of a successor to the Servicer pursuant to this Article VII, the Trustee shall
give written notice thereof to the Company,. the Seller, ___________, __________
and the Certificateholders at their respective addresses appearing on the
Certificate Register.
(c) The Trustee shall give written notice to ______ and _____
at least 30 days prior (or two Business Days after the Trustee receives notice
if less than 30 days prior) to the date upon which any Eligible Servicer (other
than the Trustee) is to assume the responsibilities of Servicer pursuant to
Section 7.03, naming such successor Servicer.
SECTION 7.05. Effect of Transfer. (a) After the Service
Transfer, the Trustee or new Servicer may notify Obligors to make payments
directly to the new Servicer that are due under the Contracts after the
effective date of the Service Transfer.
(b) After the Service Transfer, the replaced Servicer shall
have no further obligations with respect to the management, administration,
servicing or collection of the Contracts and the new Servicer shall have all of
such obligations, except that the replaced Servicer will transmit or cause to be
transmitted directly to the new Servicer for its own account, promptly on
receipt and in the same form in which received, any amounts (properly endorsed
where required for the new Servicer to collect them) received as payments upon
or otherwise in connection with the Contracts.
(c) A Service Transfer shall not affect the rights and duties
of the parties hereunder (including, but not limited to, the indemnities of the
Servicer and the Company pursuant to Article X and Sections 3.04, 3.05, 11.06
and 11.11(f)) other than those relating to the management, administration,
servicing or collection of the Contracts.
ARTICLE VIII
PAYMENTS
SECTION 8.01. Monthly Payments. (a) Subject to the terms of
this Article VIII, each Holder of a Certificate as of a Record Date shall be
paid on the next succeeding Remittance Date by check mailed to such
Certificateholder at the address for such Certificateholder appearing on the
Certificate Register (or, if such Certificateholder holds Certificates with an
aggregate Percentage Interest of at least 10% in the related Class and so
requests, by wire transfer pursuant to instructions delivered to the Trustee at
least ten days prior to such Remittance Date), the
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sum equal to such Certificateholder's Percentage Interest of the related
Distribution Amount. Final payment of any Certificate shall be made only upon
presentation of such Certificate at the office or agency of the Paying Agent.
(b) Each distribution with respect to a Book-Entry 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 Book-Entry Certificate are
to be made by the Depository and the Depository Participants in accordance with
the provisions of the Book Entry Certificates. Neither the Trustee, the
Certificate Registrar, the Seller, the Company nor the Servicer shall have any
responsibility therefor or for any required withholdings, except as otherwise
provided by applicable law. 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 Senior, Class A-6 and Class B-1 Certificates as set forth in
Exhibits A-1, A-2, A-3, A-4, A-5, A-6 and B-1 hereto.
(c) The Trustee shall either act as the paying agent or shall
appoint an Eligible Institution to be the paying agent (in either case, the
"Paying Agent") and cause it to make the payments to the Certificateholders
required hereunder. The Trustee shall initially act as Paying Agent. The Trustee
shall require the Paying Agent (if other than the Trustee) to agree in writing
that all amounts held by the Paying Agent for payment hereunder will be held in
trust for the benefit of the Certificateholders and that it will notify the
Trustee of any failure by the Servicer to make funds available to the Paying
Agent for the payment of amounts due on the Certificates.
SECTION 8.02. Permitted Withdrawals from the Certificate
Account. The Trustee may, from time to time as provided herein, make withdrawals
from the Certificate Account of amounts deposited in said account pursuant to
Section 5.05 that are attributable to the Contracts for the following purposes:
(a) to make payments in the amounts and in the manner
provided for in Section 8.03;
(b) to pay to the Company with respect to each Contract or
property acquired in respect thereof that has been repurchased or replaced
pursuant to Section 3.05, all amounts received thereon and not required to be
distributed to Certificateholders as of the date on which the related Scheduled
Principal Balance or Repurchase Price is determined;
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(c) to reimburse the Servicer (i) out of Liquidation Proceeds
for Liquidation Expenses incurred by it, to the extent such reimbursement is
permitted pursuant to Sections 5.08 and 5.13, (ii) for Delinquency Advances out
of collections (other than Liquidation Proceeds) on the related Contract, (iii)
for Servicing Advances as provided in the last sentence of Section 5.13(b) and
(iv) for any Nonrecoverable Delinquency Advances first, from collections
including Liquidation Proceeds from the related Contract and then, if such
amounts are not sufficient to reimburse the Servicer, from the Contracts
generally;
(d) to withdraw any amount deposited in the Certificate
Account that was not required to be deposited therein; or
(e) to make any rebates or adjustments deemed necessary by the
Servicer pursuant to Section 5.06(d).
Since, in connection with withdrawals pursuant to clause (b),
the Company'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 clause.
SECTION 8.03. Payments. (a) On each Remittance Date the
Trustee shall withdraw the Amount Available (as determined on the immediately
preceding Determination Date, and after taking into account all Delinquency
Advances made by the Servicer on such Remittance Date) from the Certificate
Account and apply such funds to make payment in the following order of priority:
1. if neither the Company nor a wholly owned subsidiary of the
Company is the Servicer, to pay the Monthly Servicing fee and any other
compensation owed to the Servicer pursuant to Section 7.02;
2. to pay the Senior Interest Distribution Amount as follows:
(i) the amount in clause (i) of the definition of Senior
Interest Distribution Amount to the Class A-1
Certificateholders; the amount in clause (ii) of the
definition of Senior Interest Distribution Amount to
the Class A-2 Certificateholders; the amount in
clause (iii) of the definition of Senior
Distribution Amount to the Class A-3
Certificateholders; the amount in clause (iv) of the
definition of Senior Distribution Amount to the
Class A-4 Certificateholders; the amount in clause
(v) of the definition of Senior Distribution Amount
to the Class A-5 Certificateholders, or, if the
Amount Available is less than the sum of the amounts
specified in this clause
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(i), pro rata to each Class of Senior Certificates
based on the amount of interest payable pursuant to
this clause (i);
(ii) the aggregate Unpaid Senior Interest Shortfall pro
rata to each Class of Senior Certificates based on
the Unpaid Senior Interest Shortfall of each such
Class;
3. after payment of the amounts specified in clauses (1) and
(2) above, the sum of (x) the excess of (a) the Senior Percentage of
the Formula Principal Distribution Amount, over (b) the Class A OC
Stepdown Funded Portion for such Remittance Date, (y) any portion of
the amount described in clause (x) preceding which was due with respect
to the related Class of Senior Certificates on prior Remittance Dates
but which remains unpaid on such Remittance Date and (z) the Class B
Principal Test Maintenance Amount for such Remittance Date, as follows,
in the following order of priority:
(i) to the Class A-1 Certificateholders until the Class
A-1 Principal Balance has been reduced to zero;
(ii) to the Class A-2 Certificateholders until the Class
A-2 Principal Balance has been reduced to zero;
(iii) to the Class A-3 Certificateholders until the Class
A-3 Principal Balance has been reduced to zero;
(iv) to the Class A-4 Certificateholders until the Class
A-4 Principal Balance has been reduced to zero;
(v) to the Class A-5 Certificateholders until the Class
A-5 Principal Balance has been reduced to zero;
4. after payment of the amounts specified in clauses
(1) - (3) above, to the Class A-6 Certificateholders as
follows, in the following order of priority:
(i) the amount in clause (i) of the definition of Class
A-6 Interest Distribution Amount;
(ii) any Unpaid Class A-6 Interest Shortfall;
(iii) the sum of (x) the excess of (a) the Senior
Percentage of the Formula Principal Distribution
Amount over (b) the Class A OC Stepdown Funded
Portion for such Remittance Date, (y) any portion of
the amount described
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in clause (x) preceding which was due with respect
to the Class A-6 Certificates or prior Remittance
Dates but which remains unpaid on such Remittance
Date and (z) the Class B Principal Test Maintenance
Amount for such Remittance Date to the Class A-6
Certificateholders, but in no event more than the
Class A-6 Principal Balance;
5. after payment of the amounts specified in clauses
(1)-(4) above, to the Class B-1 Certificateholders as follows,
in the following order of priority:
(i) the amount in clause (i) of the definition of Class
B-1 Interest Distribution Amount;
(ii) any Unpaid Class B-1 Interest Shortfall;
(iii) the sum of (x) the excess of (a) the Class B
Percentage of the Formula Principal Distribution
Amount over (b) the Class B OC Stepdown Funded
Portion for such Remittance Date and (y) any portion
of the amount described in clause (x) preceding
which was due with respect to the Class B-2
Certificates on prior Remittance Dates but which
remains unpaid on such Remittance Date to the Class
B-1 Certificateholders, but in no event more than
the Class B-1 Principal Balance;
6. after payment of the amounts specified in clauses
(1) - (5) above, to the Class B-2 Certificateholders as
follows:
(i) the amount in clause (i) of the definition of Class
B-2 Formula Distribution Amount;
(ii) any Unpaid Class B-2 Interest Shortfall;
(iii) the sum of (x) the excess of (a) the Class B
Percentage of the Formula Principal Distribution
Amount over (b) the Class B OC Stepdown Funded
Portion for such Remittance Date and (y) any portion
of the amount described in clause (x) preceding
which was due with respect to the Class B-2
Certificates on prior Remittance Dates but which
remains unpaid on such Remittance Date to the Class
B-2 Certificateholders but in no event more than the
Class B-2 Principal Balance;
7. after payment of the amounts specified in clauses (2)-(6)
above, if the Company or a wholly-owned subsidiary of the Company is
the Servicer, to pay the Monthly Servicing Fee
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and any other compensation owed to the Servicer pursuant to Section
7.02;
8. after payment of the amounts specified in clauses (1) - (7)
above, to the Servicer, the lesser of (x) the net investment earnings
earned on amounts in the Certificate Account during the prior
Collection Period and (y) the amount then on deposit in the Certificate
Account;
9. after payment of the amounts specified in clauses (1)-(8)
above, to reimburse the Residual Certificateholders for expenses
incurred by and reimbursable to them pursuant to Section 10.06;
10. after payment of the amounts specified in clauses (1)-(9)
above, to the Class C Certificateholders, the Class C Distribution
Amount;
11. after payment of the amounts specified in clauses (1)-(10)
above, and if the Class B-2 Principal Balance has been reduced to zero,
to the Class C Certificateholders, the Overcollateralization Reduction
Amount for such Remittance Date;
12. any remaining funds shall be paid to the Residual
Certificateholders.
(b) If the applicable Monthly Report indicates that a Class
A-6 Interest Deficiency Amount, a Class B-1 Interest Deficiency Amount and/or a
Class B-2 Interest Deficiency Amount will occur on such Remittance Date, the
Trustee shall, after distribution of the Amount Available pursuant to Section
8.03(a), apply from the Amount Held For Future Distribution on deposit in the
Certificate Account on such date, an amount equal to the Class A-6 Interest
Deficiency Amount, the Class B-1 Interest Deficiency Amount and the Class B-2
Interest Deficiency Amount (or the amount of such funds representing the Amount
Held For Future Distribution in the Certificate Account, if less) and distribute
such amount, first to the Class A-6 Certificateholders up to the amount of the
Class A-6 Interest Deficiency Amount (pro rata, if such funds are less than the
Class A-6 Interest Deficiency Amount), if any, then to the Class B-1
Certificateholders up to the amount of the Class B-1 Interest Deficiency Amount
(pro rata, if such remaining funds are less than the Class B-1 Interest
Deficiency Amount), and then to the Class B-2 Certificateholders up to the
amount of the Class B-2 Interest Deficiency Amount (pro rata, if such remaining
funds are less than the Class B-2 Interest Deficiency Amount).
(c) If, on any Remittance Date prior to the Class A-5
Principal Balance being reduced to zero, the Pool Scheduled Principal Balance at
the close of business on the last day of the related Collection Period would be
less than the sum of the Class A-1 Principal Balance, the Class A-2 Principal
Balance, the Class A-3 Principal Balance, the Class A-4 Principal Balance and
the
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Class A-5 Principal Balance on such Remittance Date after giving effect to
distributions of principal to be made on such date, then the Amount Available
remaining after distribution of interest on the Senior Certificates will be
distributed to the Classes of Senior Certificates on a pro rata basis as a
distribution of the Senior Percentage of the Formula Principal Distribution
Amount, and the amount of any shortfall being allocated pro rata among the
outstanding Classes of Senior Certificates, based upon their respective
outstanding Certificate Principal Balances.
(d) If the Trustee shall not have received the applicable
Monthly Report by any Remittance Date, the Trustee shall distribute all funds
then in the Certificate Account to Certificateholders in accordance with Section
8.03(a), to the extent of such funds, on such Remittance Date.
ARTICLE IX
THE CERTIFICATES
SECTION 9.01. The Certificates. The Senior, the Class A-6, the
Class B, the Class C and Residual Certificates shall be substantially in the
forms set forth in Exhibits A-1, A-2, A-3, A-4, A-5, A-6, B-1, B-2, C, D-1 and
D-2, respectively, and shall, on original issue, be authenticated by the Trustee
to or upon the order of the Company.
The Senior, the Class A-6 and the Class B Certificates shall
be evidenced by (i) one or more Class A-1 Certificates representing __________
initial aggregate principal balance, (ii) one or more Class A-2 Certificates;
representing __________ initial aggregate principal balance, (iii) one or more
Class A-3 Certificates representing __________ initial aggregate principal
balance, (iv) one or more Class A-4 Certificates representing __________ initial
aggregate principal balance, (v) one or more Class A-5 Certificates,
representing __________ initial aggregate principal balance, (vi) one or more
Class A-6 Certificates, representing _________ initial aggregate principal
balance, (vii) one or more Class B-1 Certificates, representing __________
initial aggregate principal balance, and (viii) one or more Class B-2
Certificates _________ initial aggregate principal balance, beneficial ownership
of such Classes of Certificates (other than the Class B-2 Certificates) to be
held through Book-Entry Certificates in minimum dollar denominations of $1,000
and integral dollar multiples of $1,000 in excess thereof. The Class B-2
Certificates shall be issuable in physical form in minimum denominations of
$1,000 and integral multiples of $1,000, except that one Class B-2 Certificate
may be issued in a denomination representing the remainder of the Original Class
B-2 Principal Balance. The Class B-2 Certificates shall initially be registered
in the name of the Seller. The Class C, Class RL and Class RU Certificates shall
be issuable in Percentage Interests and shall be
69
evidenced by a single Certificate of each such Class issued on the Closing Date
directed by the Company.
The Certificates shall be executed by manual signature on
behalf of the Trustee by a duly authorized Responsible Officer or authorized
signatory. Certificates bearing the signatures of individuals who were at any
time the proper officers of the Trustee shall bind the Trustee, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to
the execution and delivery of such Certificate or did not hold such offices at
the date of such Certificates. No Certificate shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless such Certificate has
been executed by manual signature in accordance with this Section, and such
signature upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates shall be dated the date of their execution, except for those
Certificates executed on the Closing Date, which shall be dated the Closing
Date.
SECTION 9.02. Registration of Transfer and Exchange of
Certificates. (a) The Trustee shall keep at the office or agency to be
maintained in accordance with Section 12.02 a "Certificate Register" in which
the Trustee shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Trustee initially appoints
itself to be the "Certificate Registrar" and transfer agent for the purpose of
registering Certificates and transfers and exchanges of Certificates as provided
herein. The Trustee will give prompt written notice to Certificateholders and
the Servicer of any change in the Certificate Registrar.
(b) (1) Subject to clauses (2) and (3) below, no transfer of a
Class B-2, Class C Certificate or a Residual Certificate shall be made unless
such transfer is exempt from the registration requirements of the Securities Act
of 1933 (the "Act"), as amended, and any applicable state securities laws or is
made in accordance with the Act and laws. In the event that any such transfer is
to be made, (A) the Company may require a written Opinion of Counsel acceptable
to and in form and substance satisfactory to the Company that such transfer may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the Act and laws or is being made pursuant to the Act and
laws, which Opinion of Counsel shall not be an expense of the Trustee or the
Company, and (B) the Trustee shall require the transferee to execute an
investment letter substantially in the form of Exhibit K attached hereto, which
investment letter shall not be an expense of the Trustee or the Company. The
Certificateholder desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trustee, the Company and the Certificate Registrar
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. The Company shall provide
to any Holder of a Class B-2, Class C or Residual Certificateholder and any
prospective
70
transferee designated by any such Holder, information regarding the related
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 the
transfer of any such Certificate without registration thereof under the
Securities Act pursuant to the registration exemption provided by Rule 144A. The
Trustee and the Servicer (if different from the Company) shall cooperate with
the Company in providing the Rule 144A information referenced in the preceding
sentence, including providing to the Company such information regarding the
Certificates, the Contracts and other matters regarding the Trust as the Company
shall reasonably request to meet its obligation under the preceding sentence.
(2) No transfer of a Class A-6, Class B-1, Class B-
2, Class C or a Residual Certificate or any interest therein shall be made to
any employee benefit plan, trust or account that is subject to ERISA, or that is
described in Section 4975(e)(1) of the Code (each, a "Plan"), unless the
prospective transferee of a Certificate or interest therein provides the
Servicer, the Company and the Trustee with a benefit plan affidavit in the form
attached to the representation letter.
(3) Notwithstanding anything to the contrary
contained herein, (A) no Residual Certificate, nor any interest therein, shall
be transferred, sold or otherwise disposed of to a "disqualified organization,"
within the meaning of Section 860E(e)(5) of the Code, including any agent for,
or any pass-through entity an interest is owned by, a disqualified organization
(a "Disqualified Organization"), including, but not limited to, (i) the United
States, a state or political subdivision thereof, a foreign government, an
international organization or an agency or instrumentality of any of the
foregoing, (ii) an organization (other than a cooperative described in Section
521 of the Code) which is exempt from the taxes imposed by Chapter 1 of the Code
and not subject to the tax imposed on unrelated business income by Section 511
of the Code, or (iii) a cooperative described in Section 1381(a)(2)(C) of the
Code, and (B) prior to any registration of any transfer, sale or other
disposition of such Residual Certificate, the proposed transferee shall deliver
to the Trustee, under penalties of perjury, an affidavit that such transferee is
not a Disqualified Organization, with respect to which the Trustee shall have no
actual knowledge that such affidavit is false, and the transferor and the
proposed transferee shall each deliver for the Trustee an affidavit with respect
to any other information reasonably required by the Trustee pursuant to the
REMIC Provisions, including, without limitation, information regarding the
transfer of noneconomic residual interests and transfers of any residual
interest to or by a foreign person; provided, however, that, upon the delivery
to the Trustee of an Opinion of Counsel, in form and substance satisfactory to
the Trustee and rendered by Independent counsel, to the effect that the
beneficial ownership of such Residual Certificate by any Disqualified
Organization will not result in the imposition of federal income tax upon the
Trust or any Certificateholder or any
71
other person or otherwise adversely affect the status of any REMIC held by the
Trust as a REMIC, the foregoing prohibition on transfers, sales and other
dispositions, as well as the foregoing requirement to deliver a certificate
prior to any registration thereof, shall, with respect to such Disqualified
Organization, terminate. Notwithstanding any transfer, sale or other disposition
of a Residual Certificate, or any interest therein, to a Disqualified
Organization or the registration thereof in the Certificate Register, such
transfer, sale or other disposition and any registration thereof, unless
accompanied by the Opinion of Counsel described in the preceding sentence, shall
be deemed to be void and of no legal force or effect whatsoever and such
Disqualified Organization shall be deemed to not be a Residual Certificateholder
for any purpose hereunder, including, but not limited to, the receipt of
distributions on such Residual Certificate, and shall be deemed to have no
interest whatsoever in such Residual Certificate. Each Residual
Certificateholder, by its acceptance thereof, shall be deemed for all purposes
to have consented to the provisions of this Section 9.02(b)(3).
(4) Any transfer, sale or other disposition not in
compliance with the provisions of this Section 9.02(b) shall be deemed to be
void and of no legal force or effect whatsoever and such transferee shall be
deemed to not be the Certificateholder for any purpose hereunder, including, but
not limited to, the receipt of distributions on the Certificate, and shall be
deemed to have no interest whatsoever in the Certificate.
(c) At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of the same Class, in authorized denominations
of a like aggregate original denomination, upon surrender of such Certificates
to be exchanged at such office. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for transfer or exchange shall be duly endorsed by, or
shall be accompanied by a written instrument of transfer in form satisfactory to
the Trustee and the Certificate Registrar duly executed by the holder thereof or
his or her attorney duly authorized in writing.
(d) Except as provided in paragraph (e) below the Book-Entry
Certificates shall at all times remain registered in the name of the Depository
or its nominee and at all times: (i) registration of the Senior, Class A-6 and
Class B-1 Certificates may not be transferred by the Trustee except to another
Depository; (ii) the Depository shall maintain book-entry records with respect
to the Certificate Owners and with respect to ownership and transfers of such
Senior, Class A-6 and Class B-1 Certificates; (iii) ownership and transfers of
registration of the Senior, Class A-6 and Class B-1 Certificates on the books of
the Depository shall be governed by applicable rules established by the
Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Trustee
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shall deal with the Depository, Depository Participants and indirect
participating firms as representatives of the Certificate Owners of the Senior,
Class A-6 and Class B-1 Certificates for purposes of exercising the rights of
Holders under this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and (vi) the Trustee may rely and shall
be fully protected in relying upon information furnished by the Depository with
respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and persons shown on
the books of such indirect participating firms as direct or indirect Certificate
Owners.
All transfers by Certificate Owners of Book-Entry Certificates
shall be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
(e) If (x) (i) the Company or the Depository advises the
Trustee in writing that the Depository is no longer willing or able properly to
discharge its responsibilities as Depository and (ii) the Trustee or Company is
unable to locate a qualified successor or (y) the Company at its sole option
advises the Trustee in writing that it elects to terminate the book-entry system
through the Depository, the Trustee shall notify all Certificate Owners, through
the Depository, of the occurrence of any such event and of the availability of
definitive, fully registered Senior Certificates, Class A-6 Certificates or
Class B-1 Certificates (the "Definitive Certificates") to Certificate Owners
requesting the same. Upon surrender to the Trustee of the Senior Certificates,
Class A-6 Certificates or Class B-1 Certificates by the Depository, accompanied
by registration instructions from the Depository for registration, the Trustee
shall issue the Definitive Certificates. Neither the Company nor the Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of 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 the Definitive Certificates as Certificateholders hereunder.
(f) On or prior to the Closing Date, there shall be delivered
to the Depository one Class A-1 Certificate, one Class A-2 Certificate, one
Class A-3 Certificate, one Class A-4 Certificate, one Class A-5 Certificate, one
Class A-6 Certificate, and one Class B-1 Certificate, each in registered form
registered in the name of the Depository's nominee, Cede & Co., the total face
amount of which represents 100% of the Original Class A-1 Principal
73
Balance, the Original Class A-2 Principal Balance, the Original Class A-3
Principal Balance, the Original Class A-4 Principal Balance, the Original Class
A-5 Principal Balance, the Original Class A-6 Principal Balance, and the
Original Class B-1 Principal Balance, respectively. Each such Senior, Class A-6
or Class B-1 Certificate registered in the name of the Depositary's nominee
shall bear the following legend:
"Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as 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."
SECTION 9.03. No Charge; Disposition of Void Certificates. No
service charge shall be made to a Certificateholder for any transfer or exchange
of Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates. All Certificates
surrendered for transfer and exchange shall be disposed of in a manner approved
by the Trustee.
SECTION 9.04. Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (b) there is delivered to
the Certificate Registrar and the Trustee such security or indemnity as may be
required by each to save it harmless, then in the absence of notice to the
Certificate Registrar or the Trustee that such Certificate has been acquired by
a bona fide purchaser, the Trustee shall execute and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and original denomination. Upon the issuance of any
new Certificate under this Section 9.04, 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 connected therewith. Any
duplicate Certificate issued pursuant to this Section 9.04 shall constitute
complete and indefeasible evidence of ownership of the Percentage Interest, as
if originally issued, whether or not the mutilated, destroyed, lost or stolen
Certificate shall be found at any time.
SECTION 9.05. Persons Deemed Owners. Prior to due presentation
of a Certificate for registration of transfer, the Servicer, the Company, the
Trustee, the Paying Agent and the Certificate Registrar may treat such person in
whose name any
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Certificate in registered as the owner of such Certificate for the purpose of
receiving remittances pursuant to Section 8.01 and for all other purposes
whatsoever, and none of the Servicer, the Company, the Trustee, the Certificate
Registrar, the Paying Agent or any agent of the Servicer, the Company, the
Trustee, the Paying Agent or the Certificate Registrar shall be affected by
notice to the contrary.
SECTION 9.06. Access to List of Certificateholders' Names and
Addresses. The Certificate Registrar will furnish to the Trustee and the
Servicer, within five days after receipt by the Certificate Registrar of a
request therefor from the Trustee in writing a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Certificateholders as
of the most recent Record Date. If Holders of Certificates evidencing, as to any
Class, Percentage Interests representing 25% or more (hereinafter referred to an
"Applicants") apply in writing to the Trustee, and such application states that
the Applicants desire to communicate with other Certificateholders with respect
to their rights under this Agreement or under the Certificates and is
accompanied by a copy of the communication which such Applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, afford such Applicants access during normal business hours to
the most recent list of Certificateholders held by the Trustee. If such list is
as of a date more than 90 days prior to the date of receipt of such Applicants'
request, the Trustee shall promptly request from the Certificate Registrar a
current list as provided above, and shall afford such Applicants access to such
list promptly upon receipt. Every Certificateholder, by receiving and holding a
Certificate, agrees with the Certificate Registrar and the Trustee that none of
the Company, the Certificate Registrar or the Trustee shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
SECTION 9.07. Authenticating Agents. The Trustee may appoint
one or more Authenticating Agents with power to act on its behalf and subject to
its direction in the execution and delivery of the Certificates. For all
purposes of this Agreement, the execution and delivery of Certificates by the
Authenticating Agent pursuant to this Section shall be deemed to be the
execution and delivery of Certificates "by the Trustee."
ARTICLE X
INDEMNITIES
SECTION 10.01. Company's Indemnities. The Company will defend
and indemnify the Trust, the Trustee (including the Paying Agent and any other
agents of the Trustee) and the Certificate- holders against any and all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees and
expenses of
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counsel and expenses of litigation of any third-party claims (i) arising out of
or resulting from the origination of any Contract (including, but not limited
to, truth in lending requirements) or the servicing of such Contract prior to
its transfer to the Trust (but only to the extent such cost, expense, loss,
damage, claim or liability is not provided for by the Company's repurchase of
such Contract pursuant to Section 3.05) or (ii) arising out of or resulting from
the use or ownership of any Manufactured Homes by the Company or the Servicer or
any Affiliate of either. Notwithstanding any other provision of this Agreement,
the obligation of the Company under this Section shall not terminate upon a
Service Transfer pursuant to Article VII, except that the obligation of the
Company under this Section shall not relate to the actions of any subsequent
Servicer after a Service Transfer.
SECTION 10.02. Liabilities to Obligors. No obligation or
liability to any Obligor under any of the Contracts is intended to be assumed by
the Trust, 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 Trustee, the Trust, the
Certificateholders expressly disclaim such assumption.
SECTION 10.03. Tax Indemnification. The Company agrees to pay,
and to indemnify, defend and hold harmless the Trust, the Trustee (including the
Paying Agent and any other agents of the Trustee), and the Certificateholders
from, any taxes which may at any time be asserted with respect to, and as of the
date of, the transfer of the Contracts to the Trust, including, without
limitation, any sales, gross receipts, general corporation, personal property,
privilege or license taxes (but not including any federal, state or other taxes
arising out of the creation of the Trust and the issuance of the Certificates),
any tax imposed on the Trust as a result of the Company's repurchase of any
Contract pursuant to Section 3.05(c), and costs, expenses and reasonable counsel
fees in defending against the same, whether arising by reason of the acts to be
performed by the Company, the Servicer or the Trustee under this Agreement or
imposed against the Trust, a Certificateholder or otherwise.
SECTION 10.04. Servicer's Indemnities. The Servicer shall
defend and indemnify the Trust, the Trustee (the Paying Agent and any other
agents of the Trustee), the Certificateholders against any and all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel and expenses of litigation, in respect of any action taken
or omitted to be taken by the Servicer with respect to any Contract. This
indemnity shall survive any Service Transfer (but the original Servicer's
obligations under this Section 10.04 shall not relate to any actions of any
subsequent Servicer after a Service Transfer) and any payment of the amount
owing under, or any repurchase by the Company of, any such Contract.
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SECTION 10.05. Operation of Indemnities. Indemnification under
this Article shall include, without limitation, reasonable fees and expenses of
counsel in connection with the administration of the trusts hereunder and
expenses of litigation (including litigation of claims by third parties). If the
Company or the Servicer has made any indemnity payments to the Trustee pursuant
to this Article and the Trustee thereafter collects any of such amounts from
others, the Trust will repay such amounts collected to the Company or the
Servicer, as the case may be, without interest.
SECTION 10.06. REMIC Tax Matters. If Residual
Certificateholders, pursuant to Section 6.06, pay any taxes or charges imposed
upon any REMIC held by the Trust as a REMIC or otherwise, such taxes or charges,
except to the extent set forth in the following proviso, shall be expenses and
costs of the Trust and the Residual Certificateholders shall be entitled to be
reimbursed therefor out of the Certificate Account as provided in Section 8.03;
provided, however, that any such taxes or charges shall not be expenses or costs
of the Trust, nor will the Residual Certificateholders be entitled to
reimbursement therefor out of the Certificate Account, if and to the extent that
such taxes or charges resulted from a failure by the Company, the Trustee or any
Servicer to comply with the provisions of Section 2.04.
ARTICLE XI
THE TRUSTEE
SECTION 11.01. Duties of Trustee. The Trustee, prior to the
occurrence of an Event of Termination and after the curing of all Events of
Termination which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement. If an Event of
Termination has occurred (which has not been cured), 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 circumstances in the conduct of his own affairs.
Subject to Section 11.03, 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:
(a) Prior to the occurrence of an Event of Termination, and
after the curing of all such Events of Termination 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
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on the part of the Trustee, the Trustee may conclusively rely, 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;
(b) The Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;
(c) The Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Certificateholders with aggregate
Percentage Interests representing 25% or more of the Trust relating 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; and
(d) The Trustee shall not be charged with knowledge of any
event referred to in Section 7.01 unless a Responsible Officer of the Trustee at
the Corporate Trust Office obtains actual knowledge of such event or the Trustee
receives written notice of such event from the Servicer or the Holders of
Certificates evidencing, as to any Class, Percentage Interests representing 25%
or more.
None of the provisions contained in this Agreement shall in
any event require the Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Company or the Servicer under this
Agreement, except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and privileges of,
the Servicer in accordance with the terms of this Agreement. The Trustee shall
not be required to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if there is reasonable ground for believing that
the repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
SECTION 11.02. Certain Matters Affecting the Trustee. Except
as otherwise provided in Section 11.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate, certificate
of a Servicing Officer, certificate of auditors or any other certificate,
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 of its selection and
any opinion or advice of such counsel shall be full
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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
opinion or advice of counsel;
(c) The Trustee shall be under no obligation to exercise any
of the rights 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; provided, however, that nothing
contained herein shall relieve the Trustee of the obligations, upon the
occurrence of an Event of Termination (which has not been cured), to exercise
such of the rights and powers vested in it by this Agreement, and to use the
same degree of care and skill in their exercise as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs;
(d) Prior to the occurrence of an Event of Termination and
after the curing of all Events of Termination which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing so to do by Holders of Certificates evidencing, as
to any Class, Percentage Interests representing 25% or more; 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 cost, expense or liability
as a condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Servicer or, if paid by the Trustee, shall be
reimbursed by the Servicer upon demand; and
(e) 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 or a custodian and shall not be liable for any acts or
omissions of such agents, attorneys or custodians if appointed by it with due
care hereunder.
SECTION 11.03. Trustee Not Liable for Certificates or
Contracts. The Trustee assumes no responsibility for the correctness of the
recitals contained herein, or in the Certificates (other than the Trustee's
execution thereof). The Trustee makes no representations as to the validity or
sufficiency of this Agreement, of the Certificates (either than its execution
thereof) or of any Contract, Contract File or related document. The Trustee
shall not be accountable for the use or application by the Servicer or the
Company of funds paid to the Seller in consideration of conveyance of the
Contracts to the Trust by the
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Seller or deposited into or withdrawn from the Collection Account by the
Servicer.
SECTION 11.04. Rights of Certificateholders to Direct Trustee
and to Waive Event of Termination. The Majority Holders shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee; provided, however, that, subject to Section 11.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee being
advised by counsel determines that the action so directed may not lawfully be
taken, or if the Trustee in good faith shall, by a Responsible Officer or
officers of the Trustee, determine that the proceedings so directed would be
illegal or involve it in personal liability or be unduly prejudicial to the
rights of Certificateholders not parties to such direction; and provided,
further, that nothing in this Agreement shall impair the right of the Trustee to
take any action deemed proper by, the Trustee and which is not inconsistent with
such direction by the Certificateholders. In addition, the Majority Holders may
on behalf of Certificateholders waive any past Event of Termination hereunder
and its consequences, except a default in respect of a covenant or provision
hereof which under Section 12.07 cannot be modified or amended without the
consent of all Certificateholders, and upon any such waiver, such Event of
Termination shall cease to exist and shall be deemed to have been cured for
every purpose of this Agreement; but no such waiver shall extend to any
subsequent or other Event of Termination or impair any right consequent thereon.
SECTION 11.05. The Servicer to Pay Trustee's Fees and
Expenses. The Servicer agrees:
(a) to pay to the Trustee reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee, to the extent requested by the Trustee, for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, 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 (including any claim
by a
80
third party, or otherwise) in connection with the exercise or performance of any
of its powers or duties hereunder.
All such payments by the Servicer shall be made from its own
funds. The covenants in this Section 11.05 shall be for the benefit of the
Trustee in its capacities as Trustee, Paying Agent and Certificate Registrar
hereunder, and shall survive the termination of this Agreement.
SECTION 11.06. Eligibility Requirements for Trustee. The
Trustee hereunder shall at all times be a financial institution organized and
doing business under the laws of the United States of America or any State,
authorized under such laws to exercise corporate trust powers and a Title I
approved lender pursuant to FHA Regulations, and shall have a combined capital
and surplus of at least $50,000,000 or shall be a member of a bank holding
system the aggregate combined capital and surplus of which is $50,000,000,
provided that the Trustee's separate capital and surplus shall at all times be
at least the amount required by Section 310(a)(2) of the Trust Indenture Act of
1939, as amended. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of a supervising or examining
authority, then for the purposes of this Section 11.06, the combined capital and
surplus of such Person 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 at all times have a long-term deposit rating from ______ of at
least Baa3 or as shall be otherwise acceptable to ______ and a rating from _____
(if rated by _____) of at least BBB- or as shall be otherwise acceptable to
Fitch. In case at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 11.06, the Trustee shall resign immediately
in the manner and with the effect specified in Section 11.07.
SECTION 11.07. Resignation or Removal of Trustee. The Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Servicer and the Company. A copy of any
such notice shall be sent to Moody's and _____. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to
each of the Servicer and the Company and one copy to the successor Trustee. If
no successor Trustee shall have been so appointed and shall 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 11.06 and shall fail to resign after
written request therefor by the Company or any Certificateholder, or if at any
time the Trustee shall be legally unable to act, or shall be adjudged a bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or
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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 Company may remove the Trustee. If the Company shall have
removed the Trustee under the authority of the immediately preceding sentence,
the Company shall promptly 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. If the Company shall not have
appointed a successor Trustee, and such successor Trustee have accepted
appointment, within 30 days after the Company's removal of the Trustee, then the
Trustee being removed may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 11.07 shall
not become effective until acceptance of appointment by the successor Trustee as
provided in Section 11.08.
SECTION 11.08. Successor Trustee. Any successor Trustee
appointed as provided in Section 11.07 shall execute, acknowledge and deliver to
the Servicer, the Company and to its predecessor Trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor 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 like
effect as if originally named as Trustee. The predecessor Trustee shall deliver
or cause to be delivered to the successor Trustee the Contracts, Contract Files
and any related documents and statements held by it hereunder; and the Servicer,
the Company and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Trustee all such rights,
powers, duties and obligations.
No successor Trustee shall accept appointment as provided in
this Section 11.08 unless at the time of such acceptance such successor Trustee
shall be eligible under the provisions of Section 11.06.
Upon acceptance of appointment by a successor Trustee as
provided in this Section 11.08, the Servicer shall cause notice of the
succession of such Trustee hereunder to be mailed to each Certificateholder at
their addresses as shown in the Certificate Register. If the Servicer fails to
mail such notice within ten days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be mailed at
the expense of the Servicer.
SECTION 11.09. Merger or Consolidation of Trustee. Any Person
into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be
82
a party, or any Person succeeding to substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such Person shall be eligible under the provisions of Section 11.06,
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. The
Trustee shall promptly notify ______ and _____ in the event it is a party to any
merger, conversion or consolidation.
SECTION 11.10. Tax Returns. Initially, the Trustee shall
prepare and file all tax returns applicable to the Trust and each REMIC held by
the Trust and the Servicer shall furnish the Trustee with all such information
as the Trustee may reasonably require in connection with preparing all tax
returns of the Trust and the Trustee shall execute such returns.
SECTION 11.11. Obligor Claims. In connection with any offset
defenses, or affirmative claims for recovery, asserted in legal actions brought
by obligors under one or more Contracts based upon provisions therein complying
with, or upon other rights or remedies arising from, any legal requirements
applicable to the Contracts, including, without limitation, the Federal Trade
Commission's Trade Regulation Rule Concerning Preservation of Consumers' Claims
and Defenses (16 C.F.R. (S) 433) as amended from time to time:
(a) The Trustee is not, and shall not be deemed to be, either
in any individual capacity, as trustee hereunder or otherwise, a creditor, or a
joint venturer with or an Affiliate of, or acting in concert or cooperation
with, any seller of home improvements, in the arrangement, origination or making
of Contracts. The Trustee is the holder of the Contracts only as trustee on
behalf of the Certificateholders, and not as a principal or in any individual or
personal capacity;
(b) The Trustee shall not be personally liable for or
obligated to pay Obligors any affirmative claims asserted thereby, or
responsible to Certificateholders for any offset defense amounts applied against
Contract payments, pursuant to such legal actions;
(c) The Trustee will pay, solely from available Trust monies,
affirmative claims for recovery by Obligors only pursuant to final judicial
orders or judgments, or judicially approved settlement agreements, resulting
from such legal actions;
(d) The Trustee will comply with judicial orders and judgments
which require its actions or cooperation in connection with Obligors' legal
actions to recover affirmative claims against Certificateholders.
(e) The Trustee will cooperate with and assist
Certificateholders in their defense of legal actions by Obligors to recover
affirmative claims if such cooperation and assistance is not contrary to the
interests of the Trustee as a party to such
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legal actions and if the Trustee is satisfactorily indemnified for all
liability, costs and expenses arising therefrom; and
(f) The Company hereby agrees to indemnify, hold harmless and
defend the Trustee, Certificateholders from and against any and all liability,
loss, costs and expenses (including the reasonable fees and disbursements of
counsel) of the Trustee, Certificateholders resulting from any affirmative
claims for recovery asserted or collected by Obligors under the Contracts.
Notwithstanding any other provision of this Agreement, the obligation of the
Company under this Section 11.11(f) shall not terminate upon a Service Transfer
pursuant to Article VII.
SECTION 11.12. Appointment of Co-Trustee or Separate Trustee.
The Company shall have the power from time to time to appoint one or more
persons or corporations to act as co-trustees jointly with the Trustee, or as
separate trustees, or as custodians, for the purpose of conforming to any legal
requirement, restriction or condition (i) with respect to the holding of the
Contracts, the Contract Files or (ii) with respect to the enforcement of a
Contract in any state in which a Manufactured Home is located or in any state in
which any portion of the Trust is located. The separate trustees, co-trustees,
or custodians so appointed shall be trustees or custodians for the benefit of
all Certificateholders and shall, subject to the provisions of the following
paragraph, have such powers, rights and remedies as shall be specified in the
instrument of appointment; provided, however, that no such appointment shall, or
shall be deemed to, constitute the appointee an agent of the Trustee.
Every separate trustee, co-trustee and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(A) all powers, duties, obligations and rights conferred upon
the Trustee in respect of the receipt, custody and payment of monies
shall be exercised solely by the Trustee;
(B) all other rights, powers, duties and obligations conferred
or imposed upon the Trustee, to the extent also imposed upon such
separate trustees, co-trustees or custodians, shall be conferred or
imposed upon and exercised or performed by the Trustee and such
separate trustee, co-trustee, or custodian jointly, except to the
extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Trustee shall be ineligible or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including holding of the Trust or any
portion thereof in any such jurisdiction) shall be exercised and
performed by such separate trustee, co-trustee, or custodian;
(C) no separate trustee, co-trustee or custodian hereunder
shall be personally liable by reason of any act or
84
omission of any other separate trustee, co-trustee or
custodian hereunder; and
(D) the Company may at any time accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by
it.
If any separate trustee, co-trustee or custodian 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 or custodian. The reasonable fees and expenses of any such
separate trustee, co-trustee or custodian shall be treated as additional fees
and expenses of the Trustee subject to Section 11.05 and payable by the Servicer
if and only to the extent the Servicer shall have consented in writing to his or
its appointment, which consent shall not be unnecessarily withheld.
SECTION 11.13. Agents of Trustee. To the extent not prohibited
by law and not inconsistent with the terms of this Agreement (including, without
limitation, Section 11.12), the Trustee may, with the prior consent of the
Company, appoint one or more agents to carry out ministerial matters on behalf
of the Trustee under this Agreement.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Servicer Not to Assign Duties or Resign;
Delegation of Servicing Duties. The Servicer may not sell or assign its rights
and duties as Servicer hereunder, except as expressly provided for herein,
provided that the Servicer may pledge or assign the right to receive all or any
portion of the Monthly Servicing Fee payable to it. The Servicer shall not
resign from the obligations and duties hereby imposed on it except upon
determination that the performance of its duties hereunder is no longer
permissible under applicable law or is in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Servicer shall be evidenced by
an Opinion of Counsel for the Servicer to such effect addressed and delivered to
the Trustee. No such resignation shall become effective until the Trustee or a
successor Servicer shall have assumed the responsibilities and obligations of
the Servicer in accordance with Sections 7.02 and 7.03.
Notwithstanding the foregoing:
(a) Any Person into which the Servicer may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Servicer shall be a party,
85
or any Person succeeding to the business of the Servicer, shall be the successor
of 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 criteria set forth in the definition of
an Eligible Servicer. The Servicer shall promptly notify Moody's and Fitch of
any such merger to which it is a party.
(b) The Company, if it is the Servicer, may delegate some or
all of its servicing duties to a wholly-owned subsidiary of the Company, for so
long as said subsidiary remains, directly or indirectly, a wholly-owned
subsidiary of the Company. Notwithstanding any such delegation the Company shall
retain all of the rights and obligations of the Servicer hereunder.
SECTION 12.02. Maintenance of Office or Agency. The Trustee
will maintain in New York, an office or agency where Certificates or Class C
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trustee in respect of the Certificates
and this Agreement may be served. On the date hereof the Trustee's office for
such purposes is located at _____________________________
__________________________________. 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 12.03. Termination. (a) This Agreement shall terminate
(after distribution of all amounts due to Certificateholders pursuant to
Sections 8.01 and 8.03) on the earlier of (a) the Remittance Date on which the
Pool Scheduled Principal Balance is reduced to zero and all amounts payable to
Certificateholders on such Remittance Date have been distributed to
Certificateholders or (b) the Remittance Date on which the Company repurchases
the Contracts pursuant to Section 12.03(b); provided, that 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 ___________________________
________________________________________________________________________________
_______________, living on the date hereof; and provided, further, that the
Servicer's and the Company's representations and warranties and indemnities by
the Company and the Servicer shall survive termination.
(b) Subject to the conditions in subsection (c) below, the Servicer may
repurchase all of the Contracts and all property acquired in respect of any
Contract remaining in the Trust at a price equal to the greater of:
(i) the sum of (x) 100% of the 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
Remittance Date, (y) the fair market value of such acquired property
(as determined by the Servicer
86
and (z) any Unpaid Senior Interest Shortfall, any Unpaid Class A-6
Interest Shortfall, any Unpaid Class B-1 Interest Shortfall and any
Unpaid Class B-2 Interest Shortfall as well as one month's interest at
the applicable Contract Rate on the Scheduled Principal Balance of each
Contract (including any Contract as to which the related Manufactured
Home has been repossessed and not yet disposed of), together with the
Monthly Servicing Fee; provided, that such amount shall in no event be
less than the amount necessary to pay in full the Certificate Principal
Balance of all Classes of Certificates then outstanding, together with
the Overcollateralization Amount and all accrued and unpaid interest on
all Classes of Certificates then outstanding (the amount described in
this clause (i), the "Termination Price"); or
(ii) the aggregate fair market value (as determined by
the Servicer) of all of the assets of the Trust.
(c) The purchase by the Company of all of the Contracts
pursuant to Section 12.03(b) above shall be at the option of the Company, but
shall be conditioned upon (1) the Pool Scheduled Principal Balance, at the time
of any such purchase, aggregating less than __________, (2) such purchase
constituting a plan of complete liquidation in accordance with Section 860F of
the Code, (3) the Company having provided the Trustee and the Depository (if
any) with at least 30 days' written notice and (4) the Company having delivered
to the Trustee an unqualified Opinion of Counsel stating that payment of the
purchase price to the Certificateholders will not constitute a voidable
preference under the United States Bankruptcy Code. If such option is exercised,
the Company shall provide to the Trustee the certification required by Section
12.03, which certificate shall constitute a plan of complete liquidation within
the meaning of Section 860F of the Code, and the Trustee shall promptly sign
such certification and release to the Company the Contracts then held by the
Trustee.
In connection with any such purchase, the Company shall
provide to the Trustee an Opinion of Counsel experienced in federal income tax
matters to the effect that such purchase constitutes a Qualified Liquidation
with respect to each REMIC.
(d) If the Company does not, by the ninetieth day following
the Auction Call Date, exercise its rights as described in paragraphs (b) and
(c) above, then the Trustee will notify the Representative (or another
investment banking or whole-loan trading firm selected by the Company, the
Representative or such other investment bank or trading firm, the "Advisor"),
who will solicit on behalf of the Trustee competitive bids for the purchase of
the assets of the Trust for fair market value on a servicing retained basis.
Such solicitation shall be conducted substantially in the manner described in
Exhibit M hereto. In the event that satisfactory bids are received as described
below, the proceeds of the sale of such assets shall be deposited into the
Certificate Account. The Trustee will ask the Advisor to solicit, on behalf of
87
the Trustee, good-faith bids from no fewer than two prospective purchasers that
are considered at the time to be competitive participants in the manufactured
housing finance industry. The Advisor will consult with any securities brokerage
houses identified by the Company as then making a market in the Certificates to
obtain a determination as to whether the fair market value on a servicing
retained basis of such assets has been offered.
Any purchaser of such assets of the Trust must agree to the
continuation of the Servicer or any successor Servicer as servicer of the assets
on terms substantially similar to those in this Agreement.
If the highest good-faith bid received by the Advisor from a
qualified bidder is, in the judgment of the Advisor, not less than the fair
market value of such assets of the Trust and if such bid would equal the amount
set forth in the following sentence, the Trustee, following consultation with
and written direction from the Advisor, will sell and assign such assets of the
Trust without representation, warranty or recourse to such highest bidder and
will redeem the Certificates. For the Trustee to consummate the sale, the bid
must be at least equal to the termination price set forth in Section 12.03(b)
hereof. In addition, the bid must be in an amount sufficient to pay the fees and
expenses of the Trustee owing hereunder. If such conditions are not met, the
Trustee will, following consultation with the Advisor, decline to consummate
such sale. In addition, the Trustee will decline to consummate such sale unless
it receives from the Advisor an opinion of counsel addressed to it that such
sale will not give rise either to any "prohibited transaction" tax under section
860F(a)(1) of the Code or to any tax on contributions to the REMIC after the
"startup day" under section 860G(d)(1) of the Code. In the event such sale is
not consummated in accordance with the foregoing, the Trustee will not be under
any obligation to solicit any further bids or otherwise to negotiate any further
sale of the assets of the Trust. In such event, however, if directed by the
Company, the Trustee may solicit bids from time to time in the future for the
purchase of the assets of the Trust upon the same terms described above. The
Trustee may consult with the Advisor and the advice of the Advisor shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder.
(e) Notice of any termination, specifying the Final Remittance
Date (which shall be a date that would otherwise be a Remittance Date) upon
which all Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and cancellation, shall be given promptly by
the Trustee (upon direction by the Company ten days prior to the date such
notice is to be mailed) by letter to ______, _____ and the Certificateholders
mailed no later than the fifth Business Day of the month of the Final Remittance
Date specifying (1) the Final Remittance Date upon which final payment on the
Certificates will
88
be made upon presentation and surrender of Certificates at the office or agency
of the Trustee therein designated; (2) the amount of any such final payment; and
(3) that the Record Date otherwise applicable to such Remittance 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.
Any notice of purchase of Contracts by the Company pursuant to
Section 12.03(b) shall constitute the adoption by the Trustee on behalf of the
Certificateholders of a plan of complete liquidation within the meaning of
Section 860F of the Code on the date such notice is given when signed by the
Trustee. Each such notice shall, to the extent required by the REMIC Provisions
or other applicable law, be signed on behalf of the Trust by the Trustee. The
Trustee shall give such notice to the Certificate Registrar at the time such
notice is given to the Certificateholders. In the event such notice is given
in connection with the Company's election to purchase the Contracts, the Company
shall deposit in the Certificate Account on the Final Remittance Date in
immediately available funds an amount equal to the above-described purchase
price and upon such deposit Certificateholders will be entitled to the amount of
such purchase price but not amounts in excess thereof, all as provided herein.
Upon certification to the Trustee by a Servicing Officer, following such final
deposit the Trustee shall promptly release to the Company the remaining
Contracts, and the Trustee shall execute all assignments, endorsements and other
instruments necessary to effectuate such transfer.
(f) Upon presentation and surrender of the Certificates, the
Trustee shall cause to be distributed from the Certificate Account, in the
following order of priority, to Certificateholders on the final Remittance Date
in proportion to their respective Percentage Interests an amount equal to (i) as
to Senior Certificates, the Class A-1 Principal Balance, the Class A-2 Principal
Balance, the Class A-3 Principal Balance, the Class A-4 Principal Balance, the
Class A-5 Principal Balance, together with any Unpaid Senior Interest Shortfall
and one month's interest at the Class A-1 Remittance Rate, the Class A-2
Remittance Rate, the Class A-3 Remittance Rate, the Class A-4 Remittance Rate,
the Class A-5 Remittance Rate on the Class A-1 Principal Balance, the Class A-2
Principal Balance, the Class A-3 Principal Balance, the Class A-4 Principal
Balance, the Class A-5 Principal Balance, respectively, (ii) as to Class A-6
Certificates, the Class A-6 Principal Balance together with any Unpaid Class A-6
Interest Shortfall and one month's interest at the Class A-6 Remittance Rate on
the Class A-6 Principal Balance, (iii) as to Class B-1 Certificates, the Class
B-1 Principal Balance together with any Unpaid Class B-1 Interest Shortfall and
one month's interest at the Class B-1 Remittance Rate on the Class B-1 Principal
Balance, (iv) as to Class B-2 Certificates, the Class B-2 Principal Balance
together with any Unpaid Class B-2 Interest Shortfall and one month's interest
at the Class B-2 Remittance Rate on the Class B-2 Principal Balance (v) to the
Class C Certificateholders, the
89
remaining Overcollateralization Amount together with the Class C Distribution
Amount for such Remittance Date and (vi) as to the RU Certificates, the amount
which remains on deposit in the Certificate Account (other than amounts retained
to meet claims) after application pursuant to the foregoing clauses. The
distribution on the Final Remittance Date shall be in lieu of the distribution
otherwise required to be made an such Remittance Date in respect of each Class
of Certificates.
(g) In the event that all of the Certificateholders do not
surrender their Certificates for cancellation within three months after the time
specified in the above-mentioned written notice, the Company 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 three months after the second notice all the Certificates
shall not have been surrendered for cancellation, the Company shall transfer to
itself all amounts remaining on deposit in the Certificate Account, to hold in
trust for Certificateholders who have not surrendered their Certificates for
cancellation, together with the final record list of Certificateholders, and the
Company shall take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets which remain in trust hereunder.
(h) Each Certificateholder hereby irrevocably approves
and appoints the Trustee as its attorney-in-fact for the purposes
of adoption of the plan of complete liquidation.
SECTION 12.04. Acts of Certificateholders. (a) Except as
otherwise specifically provided herein, whenever Certificateholder approval,
authorization, direction, notice, consent, waiver or other action is required
hereunder, such approval, authorization, direction, notice, consent, waiver or
other action shall be deemed to have been given or taken on behalf of, and shall
be binding upon, all Certificateholders if agreed to by Holders of Certificates
of the specified Class or Classes evidencing, as to each such Class, Percentage
Interests aggregating 51% or more.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or taken
by Certificateholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Certificateholders in
person or by agent duly appointed in writing; and except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where required, to the Servicer.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Agreement and (subject to
Section 11.01) conclusive in favor of the Trustee, the Servicer and the Company
if made in the manner provided in this Section.
90
(c) The fact and date of the execution by any
Certificateholder of any such instrument or writing may be proved in any
reasonable manner.
(d) The ownership of Certificates shall be proved by the
Certificate Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder shall bind every holder of
every Certificate issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, or omitted to
be done by the Trustee, the Servicer or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
(f) The Trustee may require such additional proof of any
matter referred to in this Section as it shall deem necessary.
SECTION 12.05. Calculations. Except as otherwise provided in
this Agreement, all interest rate and basis point calculations under this
Agreement will be made on the basis of a 360-day year and twelve 30-day months
and will be carried out to at least three decimal places.
SECTION 12.06. Assignment or Delegation. Except as
specifically authorized hereunder, and except for the Servicer's obligations as
Servicer which are dealt with under Article V and Article VII, the Company may
not convey and assign or delegate any of its rights or obligations hereunder
absent the prior written consent of Holders of Certificates of each Class
evidencing, as to each such Class, Percentage Interests aggregating 66 2/3% or
more, and any attempt to do so without such consent shall be void. It is
understood that the foregoing does not prohibit the pledge or assignment by the
Company of any right to payment pursuant to Article VIII.
Notwithstanding the foregoing, any Person into which the
Company may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Company shall be a party, or
any Person succeeding to the business of the Company, shall be the successor of
the Company 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. The Company shall promptly notify ______ and _____ of
any such merger to which it is a party.
SECTION 12.07. Amendment. (a) (i) This Agreement may be
amended from time to time by the parties hereto, without the consent of any of
the Certificateholders, to correct manifest error, to cure any ambiguity, to
correct or supplement any provisions herein which may be inconsistent with any
other provisions herein, as the case may be, to make such changes as are
necessary to maintain the status of any REMIC held by the Trust as a "real
estate mortgage investment conduit" under the REMIC
91
Provisions of the Code or to otherwise effectuate the benefits of such status to
the Trust, the Certificateholders, including, without limitation, to implement
any provision permitted by law that would enable a REMIC to avoid the imposition
of any tax, or to make any other provisions with respect to matters or questions
that shall not be inconsistent with the provisions of this Agreement; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any Certificateholder.
(ii) This Agreement may be amended by the parties hereto for
the purpose of removing the requirements described in Section 6.02(b) hereof
without the consent of any Certificateholder or the delivery of any Opinion of
Counsel otherwise required by this Section 12.07, but with the prior written
consent of _______ and _____ received by the Trustee.
(b) This Agreement may also be amended from time to time by
the parties hereto, with the consent of Holders of Certificates of each Class
affected thereby evidencing, as to each such Class, Percentage Interests
aggregating 51% or more, 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 Certificateholders; provided, however,
that no such amendment shall (a) reduce in any manner the amount of, or delay
the timing of, collections of payments on the Contracts or distributions which
are required to be made on any Certificate, (b) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the holders of
all Certificates then arising outstanding, (c) result in the disqualification of
any REMIC held by the Trust as a REMIC under the Code, (d) adversely affect the
status of any REMIC held by the Trust as a REMIC or the status of the
Certificates as "regular interests" therein or (e) cause any tax (other than any
tax imposed on "net income from foreclosure property" under Section 860G(c)(1)
of the Code that would be imposed without regard to such amendment) to be
imposed on the Trust, including, without limitation, any tax imposed on
"prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860G(d)(1) of the Code.
This Agreement may not be amended without the consent of all Residual
Certificateholders, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement which would
modify in any manner the rights of the Residual Certificateholders.
(c) This Agreement shall not be amended under this Section
without the consent of 100% of Certificateholders if such amendment would result
in the disqualification of any REMIC held by the Trust as a REMIC under the
Code.
(d) Concurrently with the solicitation of any consent pursuant
to this Section 12.07, the Trustee shall furnish written notification to ______
and _____ of such solicitation. Promptly after the execution of any amendment
pursuant to this Section
92
12.07, the Trustee shall furnish written notification of the substance of such
amendment to ______, _____ and each Certificateholder.
(e) It shall not be necessary for the consent of
Certificateholders under this Section 12.07 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 requirements as the Trustee may prescribe.
(f) The Trustee may, but shall not be obligated to, enter into
any such amendment which affects the Trustee's own rights, duties or immunities
under this Agreement or otherwise.
(g) In connection with any amendment pursuant to this Section,
the Trustee shall be entitled to receive an unqualified Opinion of Counsel to
the Servicer to the effect that such amendment is authorized or permitted by the
Agreement.
(h) In connection with any amendment pursuant to this Section,
the Trustee shall have received an unqualified Opinion of Counsel, the expense
of which shall not be an expense of the Trust, stating that any such amendment
(i) will not adversely affect the status of the Trust as a REMIC or the status
of the Certificates as "regular interests" therein, and (ii) will not cause any
tax (other than any tax imposed on "net income from foreclosure property" under
Section 860G(c)(1) of the Code that would be imposed without regard to such
amendment) to be imposed on the Trust, including, without limitation, any tax
imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860G(d)(1) of the Code.
(i) Upon the execution of any amendment or consent pursuant to
this Section 12.07, this Agreement shall be modified in accordance therewith,
and such amendment or consent shall form a part of this Agreement for all
purposes, and every Certificateholder hereunder shall be bound thereby.
SECTION 12.08. Notices. All communications and notices
pursuant hereto to the Servicer, the Company and the Trustee shall be in writing
and delivered or mailed to it at the appropriate following address:
If to the Seller:
Access Financial Receivables Corp.
1100 Abernathy Road, Suite 1205
Atlanta, Georgia 30328
Attention: President
Telephone: (770) 481-4640
Telephone Number: (770) 828-0455
93
If to the Company or the Servicer:
Access Financial Lending Corp.
400 Highway 169 South, Suite 400
Post Office Box 26365
St. Louis Park, MN 55426-0365
Attention: President
Telephone:
Telecopier Number:
If to the Trustee:
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
If to the Rating Agencies:
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
or at such other address as the party may designate by notice to the other
parties hereto, which notice shall be effective when received.
All communications and notices pursuant hereto to a
Certificateholder shall be in writing and delivered or mailed at the address
shown in the Certificate Register.
SECTION 12.09. Merger and Integration. Except as specifically
stated otherwise herein, this Agreement, together with the Loan Sale Agreement,
sets forth the entire understanding of the parties relating to the subject
matter hereof, and all prior understandings, written or oral, are superseded by
this Agreement. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 12.10. Headings. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
SECTION 12.11. Governing Law. This Agreement shall be governed
by, and construed and enforced in accordance with, the laws of the State of New
York.
[THIS SPACE INTENTIONALLY LEFT BLANK]
94
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized this ___th day of ___, ____.
ACCESS FINANCIAL LENDING CORP.
By: ________________________________
Name:
Title:
ACCESS FINANCIAL RECEIVABLES CORP.
By: ________________________________
Name:
Title:
____________________, as Trustee
By: ________________________________
Name:
Title:
[Pooling and Servicing Agreement]
EXHIBIT A-1
FORM OF CLASS A-1 CERTIFICATE
(Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as 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.
=================================================================================================================
Class A-1 (Senior) No. A-1-1
- -----------------------------------------------------------------------------------------------------------------
Cut-off Date: Remittance Rate: _____%
____________
Denomination: $__________
- -----------------------------------------------------------------------------------------------------------------
First Remittance Date: Aggregate Denomination of All
_____________ Class A-1
Certificates:
$_____________
- -----------------------------------------------------------------------------------------------------------------
Servicer: Maturity Date:
Access Financial Lending _________________
Corp.
CUSIP: __________
=================================================================================================================
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES ______, CLASS A-1 (SENIOR)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN
INTEREST IN ACCESS FINANCIAL LENDING CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO
THE EXTENT SET FORTH IN THE AGREEMENT.
This certifies that __________ is the registered owner of the
undivided Percentage Interest in all Class A-1
Certificates represented by the original principal amount set forth above in the
Access Financial Manufactured Housing Contract Senior/Subordinate Pass-Through
Certificate Trust ______ (the "Trust"), which includes among its assets a pool
of manufactured housing installment sale contracts and installment loan
agreements (including, without limitation, all related security interests and
any and all rights to receive payments which are due pursuant thereto on or
after ___________). The Trust has been created pursuant to a Pooling and
Servicing Agreement (the "Agreement"), dated as of ___________, among Access
Financial Lending Corp., as Servicer (the "Company"), Access Financial
Receivables Corp., as Seller and _______________________, as Trustee of the
Trust (the "Trustee"). This Certificate is one of the Certificates described in
the Agreement and is issued pursuant and subject to the Agreement. By acceptance
of this Certificate the holder assents to and becomes bound by the Agreement. To
the extent not defined herein, all capitalized terms have the meanings assigned
to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on
the fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in
__________, so long as the Agreement has not been terminated, by check (or, if
such Certificateholder holds Class A-1 Certificates with an aggregate Percentage
Interest of at least __% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such Remittance
Date) to the registered Certificateholder at the address appearing on the
Certificate Register as of the last Business Day of the calendar month
immediately preceding the calendar month in which such Remittance Date occurs,
in an amount equal to the Certificateholder's Percentage Interest of the
portion of the Senior Distribution Amount to be distributed with respect to the
Class A-1 Certificates. The Maturity Date of this Certificate is
______________________.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds in the Certificate Account to the
extent available for distribution to the Certificateholder as provided in the
Agreement for payment hereunder and that none of the Company, the Seller, the
Servicer or the Trustee in its individual capacity is not personally liable to
the Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
A-2
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all amendments thereto will be provided to any Certificateholder free of
charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations
set forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at 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 duly executed by the holder thereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued to
the designated transferee or transferees.
The Company, the Servicer, the Seller and the Trustee and any
agent of any of them may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of them nor any such
agent shall be affected by any notice to the contrary.
IN WITNESS WHEREOF, Access Financial Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate Trust ______ has caused
this Certificate to be duly authenticated by the manual signature of a duly
authorized officer of the Trustee.
Dated: ____________
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST ______
By: ________________________
By:_________________________
Authorized Signatory
A-3
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________ the within Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate and does hereby
irrevocably constitute and appoint __________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By:_________________________________
Signature
A-4
EXHIBIT A-2
FORM OF CLASS A-2 CERTIFICATE
(Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as 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.
=================================================================================================================
Class A-2 (Senior) No. A-2-1
- -----------------------------------------------------------------------------------------------------------------
Cut-off Date: Remittance Rate: _____%
___________
Denomination: $__________
- -----------------------------------------------------------------------------------------------------------------
First Remittance Date: Aggregate Denomination of All
_____________ Class A-2
Certificates:
$___________
- -----------------------------------------------------------------------------------------------------------------
Servicer: Maturity Date:
Access Financial Lending _________________
Corp.
CUSIP: __________
=================================================================================================================
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES ______, CLASS A-2 (SENIOR)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN
INTEREST IN ACCESS FINANCIAL LENDING CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO
THE EXTENT SET FORTH IN THE AGREEMENT.
This certifies that __________ is the registered owner of the
undivided Percentage Interest in all Class A-2 Certificates represented by the
original principal amount set forth above in the Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate Trust
______ (the "Trust"), which includes among its assets a pool of manufactured
housing installment sale contracts and installment loan agreements (including,
without limitation, all related security interests and any and all rights to
receive payments which are due pursuant thereto on or after ___________). The
Trust has been created pursuant to a Pooling and Servicing Agreement (the
"Agreement"), dated as of ___________, among Access Financial Lending Corp., as
Servicer (the "Company"), Access Financial Receivables Corp., as Seller, and
____________________, as Trustee of the Trust (the "Trustee"). This Certificate
is one of the Certificates described in the Agreement and is issued pursuant and
subject to the Agreement. By acceptance of this Certificate the holder assents
to and becomes bound by the Agreement. To the extent not defined herein, all
capitalized terms have the meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on
the fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in
_________, so long as the Agreement has not been terminated, by check (or, if
such Certificateholder holds Class A-2 Certificates with an aggregate Percentage
Interest of at least __% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such Remittance
Date) to the registered Certificateholder at the address appearing on the
Certificate Register as of the last Business Day of the calendar month
immediately preceding the calendar month in which such Remittance Date occurs,
in an amount equal to the Certificateholder's Percentage Interest of the portion
of the Senior Distribution Amount to be distributed with respect to the Class
A-2 Certificates. The Maturity Date of this Certificate is ____________________.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds in the Certificate Account to the
extent available for distribution to the Certificateholder as provided in the
Agreement for payment hereunder and that none of the Company, the Seller, the
Servicer or the Trustee in its individual capacity is not personally liable to
the Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and
A-6
immunities of the Trustee. Copies of the Agreement and all amendments thereto
will be provided to any Certificateholder free of charge upon a written request
to the Trustee.
As provided in the Agreement and subject to the limitations
set forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at 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 duly executed by the holder thereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued to
the designated transferee or transferees.
The Company, the Servicer, the Seller and the Trustee and any
agent of any of them may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of them nor any such
agent shall be affected by any notice to the contrary.
IN WITNESS WHEREOF, Access Financial Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate Trust ______ has caused
this Certificate to be duly authenticated by the manual signature of a duly
authorized officer of the Trustee.
Dated: ____________
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST ______
By: ____________________
By:______________________
Authorized Signatory
A-7
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________ the within Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate and does hereby
irrevocably constitute and appoint __________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By:__________________________
Signature
A-8
EXHIBIT A-3
FORM OF CLASS A-3 CERTIFICATE
(Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as 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.
=================================================================================================================
Class A-3 (Senior) No. _____
- -----------------------------------------------------------------------------------------------------------------
Cut-off Date: Remittance Rate: _____%
___________
Denomination: $__________
- -----------------------------------------------------------------------------------------------------------------
First Remittance Date: Aggregate Denomination of All
_____________ Class A-3
Certificates:
$__________
- -----------------------------------------------------------------------------------------------------------------
Servicer: Maturity Date:
Access Financial Lending _________________
Corp.
CUSIP: __________
=================================================================================================================
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES ______, CLASS A-3 (SENIOR)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN
INTEREST IN ACCESS FINANCIAL LENDING CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO
THE EXTENT SET FORTH IN THE AGREEMENT.
This certifies that __________ is the registered owner of the
undivided Percentage Interest in all Class A-3 Certificates represented by the
original principal amount set forth above in the Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate Trust
______ (the "Trust"), which includes among its assets a pool of manufactured
housing installment sale contracts and installment loan agreements (including,
without limitation, all related security interests and any and all rights to
receive payments which are due pursuant thereto on or after ___________). The
Trust has been created pursuant to a Pooling and Servicing Agreement (the
"Agreement"), dated as of ___________, among Access Financial Lending Corp., as
Servicer (the "Company"), Access Financial Receivables Corp., as Seller, and
_____________________, as Trustee of the Trust (the "Trustee"). This Certificate
is one of the Certificates described in the Agreement and is issued pursuant and
subject to the Agreement. By acceptance of this Certificate the holder assents
to and becomes bound by the Agreement. To the extent not defined herein, all
capitalized terms have the meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on
the fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in
_________, so long as the Agreement has not been terminated, by check (or, if
such Certificateholder holds Class A-3 Certificates with an aggregate Percentage
Interest of at least __% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such Remittance
Date) to the registered Certificateholder at the address appearing on the
Certificate Register as of the last Business Day of the calendar month
immediately preceding the calendar month in which such Remittance Date occurs,
in an amount equal to the Certificateholder's Percentage Interest of the portion
of the Senior Distribution Amount to be distributed with respect to the Class
A-3 Certificates. The Maturity Date of this Certificate is
_________________________.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds in the Certificate Account to the
extent available for distribution to the Certificateholder as provided in the
Agreement for payment hereunder and that none of the Company, the Seller, the
Servicer or the Trustee in its individual capacity is not personally liable to
the Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and
A-10
immunities of the Trustee. Copies of the Agreement and all amendments thereto
will be provided to any Certificateholder free of charge upon a written request
to the Trustee.
As provided in the Agreement and subject to the limitations
set forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at 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 duly executed by the holder thereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued to
the designated transferee or transferees.
The Company, the Servicer, the Seller, and the Trustee and any
agent of any of them may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of them nor any such
agent shall be affected by any notice to the contrary.
IN WITNESS WHEREOF, Access Financial Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate Trust ______ has caused
this Certificate to be duly authenticated by the manual signature of a duly
authorized officer of the Trustee.
Dated: ____________
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST ______
By: ________________________
By:__________________________
Authorized Signatory
A-11
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________ the within Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate and does hereby
irrevocably constitute and appoint __________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By:___________________________
Signature
A-12
EXHIBIT A-4
FORM OF CLASS A-4 CERTIFICATE
(Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as 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.
=================================================================================================================
Class A-4 (Senior) No. _____
- -----------------------------------------------------------------------------------------------------------------
Cut-off Date: Remittance Rate: _____%
___________
Denomination: $__________
- -----------------------------------------------------------------------------------------------------------------
First Remittance Date: Aggregate Denomination of All
_____________ Class A-4
Certificates:
$___________
- -----------------------------------------------------------------------------------------------------------------
Servicer: Maturity Date:
Access Financial Lending _________________
Corp.
CUSIP: __________
=================================================================================================================
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES ______, CLASS A-4 (SENIOR)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN
INTEREST IN ACCESS FINANCIAL LENDING CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO
THE EXTENT SET FORTH IN THE AGREEMENT.
This certifies that __________ is the registered owner of the
undivided Percentage Interest in all Class A-4 Certificates represented by the
original principal amount set forth above in the Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate Trust
______ (the "Trust"), which includes among its assets a pool of manufactured
housing installment sale contracts and installment loan agreements (including,
without limitation, all related security interests and any and all rights to
receive payments which are due pursuant thereto on or after ___________). The
Trust has been created pursuant to a Pooling and Servicing Agreement (the
"Agreement"), dated as of ___________, among Access Financial Lending Corp., as
Servicer (the "Company"), Access Financial Receivables Corp., as Seller, and
____________________, as Trustee of the Trust (the "Trustee"). This Certificate
is one of the Certificates described in the Agreement and is issued pursuant and
subject to the Agreement. By acceptance of this Certificate the holder assents
to and becomes bound by the Agreement. To the extent not defined herein, all
capitalized terms have the meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on
the fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in
_________, so long as the Agreement has not been terminated, by check (or, if
such Certificateholder holds Class A-4 Certificates with an aggregate Percentage
Interest of at least __% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such Remittance
Date) to the registered Certificateholder at the address appearing on the
Certificate Register as of the last Business Day of the calendar month
immediately preceding the calendar month in which such Remittance Date occurs,
in an amount equal to the Certificateholder's Percentage Interest of the portion
of the Senior Distribution Amount to be distributed with respect to the Class
A-4 Certificates. The Maturity Date of this Certificate is
______________________.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds in the Certificate Account to the
extent available for distribution to the Certificateholder as provided in the
Agreement for payment hereunder and that none of the Company, the Seller, the
Servicer or the Trustee in its individual capacity is not personally liable to
the Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and
A-14
immunities of the Trustee. Copies of the Agreement and all amendments thereto
will be provided to any Certificateholder free of charge upon a written request
to the Trustee.
As provided in the Agreement and subject to the limitations
set forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at 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 duly executed by the holder thereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued to
the designated transferee or transferees.
The Company, the Servicer, the Seller and the Trustee and any
agent of any of them may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of them nor any such
agent shall be affected by any notice to the contrary.
IN WITNESS WHEREOF, Access Financial Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate Trust ______ has caused
this Certificate to be duly authenticated by the manual signature of a duly
authorized officer of the Trustee.
Dated: ____________
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST ______
By: _______________________
By:__________________________
Authorized Signatory
A-15
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________ the within Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate and does hereby
irrevocably constitute and appoint __________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By:_____________________________
Signature
A-16
EXHIBIT A-5
FORM OF CLASS A-5 CERTIFICATE
(Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as 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.
=================================================================================================================
Class A-5 (Senior) No. _____
- -----------------------------------------------------------------------------------------------------------------
Cut-off Date: Remittance Rate: _____%
___________
Denomination: $__________
- -----------------------------------------------------------------------------------------------------------------
First Remittance Date: Aggregate Denomination of All
_____________ Class A-5
Certificates:
$____________
- -----------------------------------------------------------------------------------------------------------------
Servicer: Maturity Date:
Access Financial Lending _________________
Corp.
CUSIP: __________
=================================================================================================================
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES ______, CLASS A-5 (SENIOR)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN
INTEREST IN ACCESS FINANCIAL LENDING CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO
THE EXTENT SET FORTH IN THE AGREEMENT.
This certifies that __________ is the registered owner of the
undivided Percentage Interest in all Class A-5 Certificates represented by the
original principal amount set forth above in the Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate Trust
______ (the "Trust"), which includes among its assets a pool of manufactured
housing installment sale contracts and installment loan agreements (including,
without limitation, all related security interests and any and all rights to
receive payments which are due pursuant thereto on or after ___________). The
Trust has been created pursuant to a Pooling and Servicing Agreement (the
"Agreement"), dated as of ___________, among Access Financial Lending Corp., as
Servicer (the "Company"), Access Financial Receivables Corp., as Seller, and
____________________, as Trustee of the Trust (the "Trustee"). This Certificate
is one of the Certificates described in the Agreement and is issued pursuant and
subject to the Agreement. By acceptance of this Certificate the holder assents
to and becomes bound by the Agreement. To the extent not defined herein, all
capitalized terms have the meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on
the fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in
_________, so long as the Agreement has not been terminated, by check (or, if
such Certificateholder holds Class A-5 Certificates with an aggregate Percentage
Interest of at least __% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such Remittance
Date) to the registered Certificateholder at the address appearing on the
Certificate Register as of the last Business Day of the calendar month
immediately preceding the calendar month in which such Remittance Date occurs,
in an amount equal to the Certificateholder's Percentage Interest of the portion
of the Senior Distribution Amount to be distributed with respect to the Class
A-5 Certificates. The Maturity Date of this Certificate is
______________________.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds in the Certificate Account to the
extent available for distribution to the Certificateholder as provided in the
Agreement for payment hereunder and that none of the Company, the Seller, the
Servicer or the Trustee in its individual capacity is not personally liable to
the Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and
A-18
immunities of the Trustee. Copies of the Agreement and all amendments thereto
will be provided to any Certificateholder free of charge upon a written request
to the Trustee.
As provided in the Agreement and subject to the limitations
set forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at 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 duly executed by the holder thereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued to
the designated transferee or transferees.
The Company, the Servicer, the Seller and the Trustee and any
agent of any of them may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of them nor any such
agent shall be affected by any notice to the contrary.
IN WITNESS WHEREOF, Access Financial Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate Trust ______ has caused
this Certificate to be duly authenticated by the manual signature of a duly
authorized officer of the Trustee.
Dated: ____________
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST ______
By: ____________________
By:_______________________
Authorized Signatory
A-19
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________ the within Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate and does hereby
irrevocably constitute and appoint __________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By:___________________________
Signature
A-20
EXHIBIT A-6
FORM OF CLASS A-6 CERTIFICATE
(Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as 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.
=================================================================================================================
Class A-6 (Subordinate) No. _____
- -----------------------------------------------------------------------------------------------------------------
Cut-off Date: Remittance Rate: _____%
____________
Denomination: $__________
- -----------------------------------------------------------------------------------------------------------------
First Remittance Date: Aggregate Denomination of All
_____________ Class A-6
Certificates:
$__________
- -----------------------------------------------------------------------------------------------------------------
Servicer: Maturity Date:
Access Financial Lending _________________
Corp.
CUSIP: __________
=================================================================================================================
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES ______, CLASS A-6 (SUBORDINATE)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN
INTEREST IN ACCESS FINANCIAL LENDING CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO
THE EXTENT SET FORTH IN THE AGREEMENT.
This certifies that __________ is the registered owner of the
undivided Percentage Interest in all Class A-6 Certificates represented by the
original principal amount set forth above in the Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate Trust
______ (the "Trust"), which includes among its assets a pool of manufactured
housing installment sale contracts and installment loan agreements (including,
without limitation, all related security interests and any and all rights to
receive payments which are due pursuant thereto on or after ___________). The
Trust has been created pursuant to a Pooling and Servicing Agreement (the
"Agreement"), dated as of ___________, among Access Financial Lending Corp., as
Servicer (the "Company"), Access Financial Receivables Corp., as Seller, and
____________________, as Trustee of the Trust (the "Trustee"). This Certificate
is one of the Certificates described in the Agreement and is issued pursuant and
subject to the Agreement. By acceptance of this Certificate the holder assents
to and becomes bound by the Agreement. To the extent not defined herein, all
capitalized terms have the meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on
the fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in
_________, so long as the Agreement has not been terminated, by check (or, if
such Certificateholder holds Class A-6 Certificates with an aggregate Percentage
Interest of at least __% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such Remittance
Date) to the registered Certificateholder at the address appearing on the
Certificate Register as of the last Business Day of the calendar month
immediately preceding the calendar month in which such Remittance Date occurs,
in an amount equal to the Certificateholder's Percentage Interest of the portion
of the Class A-6 Distribution Amount. The Maturity Date of this Certificate is
____________________________.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds in the Certificate Account to the
extent available for distribution to the Certificateholder as provided in the
Agreement for payment hereunder and that none of the Company, the Seller, the
Servicer or the Trustee in its individual capacity is not personally liable to
the Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
The Certificateholder, by its acceptance of this Certificate,
represents and warrants that either (i) it is not an employee benefit plan,
trust or account that is subject to the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or that is described in Section 4975(e)(1) of the
A-22
Code or an entity using the assets of any such plan, trust or account or (ii) it
is an insurance company general account and, pursuant to Section I of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60"), the acquisition and holding of
this Certificate, and pursuant to Section III of PTCE 95-60, the servicing,
management and operation of the Trust are with respect to such Certificateholder
exempt from the prohibited transaction provisions of ERISA and the Code.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all amendments thereto will be provided to any Certificateholder free of
charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations
set forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at 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 duly executed by the holder thereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued to
the designated transferee or transferees.
The Company, the Servicer, the Seller and the Trustee and any
agent of any of them may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of them nor any such
agent shall be affected by any notice to the contrary.
IN WITNESS WHEREOF, Access Financial Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate Trust ______ has caused
this Certificate to be duly authenticated by the manual signature of a duly
authorized officer of the Trustee.
Dated: ____________
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST ______
By: ________________________
By: _________________________
A-23
Authorized Signatory
A-24
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________ the within Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate and does hereby
irrevocably constitute and appoint __________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By:__________________________
Signature
A-25
EXHIBIT B-1
FORM OF CLASS B-1 CERTIFICATE
(Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as 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.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
SENIOR CERTIFICATES AND THE CLASS A-6 CERTIFICATES AS DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
=================================================================================================================
Class B-1 (Subordinate) No. _____
- -----------------------------------------------------------------------------------------------------------------
Cut-off Date: Remittance Rate:
___________
Denomination: $__________
- -----------------------------------------------------------------------------------------------------------------
First Remittance Date: Aggregate Denomination of All
_____________ Class B-1
Certificates:
$___________
- -----------------------------------------------------------------------------------------------------------------
Servicer: Maturity Date:
Access Financial Lending _________________
Corp.
CUSIP: __________
=================================================================================================================
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES ______, CLASS B-1 (SUBORDINATE)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN
INTEREST IN ACCESS FINANCIAL LENDING CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO
THE EXTENT SET FORTH IN THE AGREEMENT.
This certifies that __________ is the registered owner of the
undivided Percentage Interest in all Class B-1 Certificates represented by the
original principal amount set forth above in the Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate Trust ______ (the
"Trust"), which includes among its assets a pool of manufactured housing
installment sale contracts and installment loan agreements (including, without
limitation, all related security interests and any and all rights to receive
payments which are due pursuant thereto on or after ___________). The Trust has
been created pursuant to a Pooling and Servicing Agreement (the "Agreement"),
dated as of ___________, among Access Financial Lending Corp., as Servicer (the
"Company"), Access Financial Receivables Corp., as Seller, and
____________________, as Trustee of the Trust (the "Trustee"). This Certificate
is one of the Certificates described in the Agreement and is issued pursuant and
subject to the Agreement. By acceptance of this Certificate the holder assents
to and becomes bound by the Agreement. To the extent not defined herein, all
capitalized terms have the meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on
the fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in
_________, so long as the Agreement has not been terminated, by check (or, if
such Certificateholder holds Class B-1 Certificates with an aggregate Percentage
Interest of at least __% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such Remittance
Date) to the registered Certificateholder at the address appearing on the
Certificate Register as of the last Business Day of the calendar month
immediately preceding the calendar month in which such Remittance Date occurs,
in an amount equal to the Certificateholder's Percentage Interest of the portion
of the Class B-1 Distribution Amount. The Maturity Date of this Certificate is
____________________________.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds in the Certificate Account to the
extent available for distribution to the Certificateholder as provided in the
Agreement for payment
B-2
hereunder and that none of the Company, the Seller, the Servicer or the Trustee
in its individual capacity is not personally liable to the Certificateholder for
any amounts payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement. By acceptance of this Certificate, the Certificateholder agrees to
disclosure of his, her or its name and address to other Certificateholders under
the conditions specified in the Agreement.
The Certificateholder, by its acceptance of this Certificate,
represents and warrants that either (i) it is not an employee benefit plan,
trust or account that is subject to the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or that is described in Section 4975(e)(1) of the
Code or an entity using the assets of any such plan, trust or account or (ii) it
is an insurance company general account and, pursuant to Section I of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60"), the acquisition and holding of
this Certificate, and pursuant to Section III of PTCE 95-60, the servicing,
management and operation of the Trust are with respect to such Certificateholder
exempt from the prohibited transaction provisions of ERISA and the Code.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all amendments thereto will be provided to any Certificateholder free of
charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations
set forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at 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 duly executed by the holder thereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued to
the designated transferee or transferees.
The Company, the Servicer, the Seller and the Trustee and any
agent of any of them may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of them nor any such
agent shall be affected by any notice to the contrary.
B-3
IN WITNESS WHEREOF, Access Financial Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate Trust ______ has caused
this Certificate to be duly authenticated by the manual signature of a duly
authorized officer of the Trustee.
Dated: ____________
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST ______
By: ________________________
By: _________________________
Authorized Signatory
B-4
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________ the within Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate and does hereby
irrevocably constitute and appoint __________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By:_________________________
Signature
B-5
EXHIBIT B-2
FORM OF 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.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
SENIOR CERTIFICATES, THE CLASS A-6 CERTIFICATES AND THE CLASS B-1 CERTIFICATES
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT
AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 9.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
=================================================================================================================
Class B-2 (Subordinate) No. _____
- -----------------------------------------------------------------------------------------------------------------
Cut-off Date: Remittance Rate: ___%
- -----------
Denomination: $_________
- -----------------------------------------------------------------------------------------------------------------
First Remittance Date: Aggregate Denomination of All
_____________ Class B-2
Certificates:
$---------
- -----------------------------------------------------------------------------------------------------------------
Servicer: Maturity Date:
Access Financial Lending _________________
Corp.
=================================================================================================================
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES ______, CLASS B-2 (SUBORDINATE)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN
INTEREST IN ACCESS FINANCIAL LENDING CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO
THE EXTENT SET FORTH IN THE AGREEMENT.
This certifies that ________________________ is the registered
owner of the undivided Percentage Interest in all Class B-2 Certificates
represented by the original principal amount set forth above in the Access
Financial Manufactured Housing Contract Senior/Subordinate Pass-Through
Certificate Trust ______ (the "Trust"), which includes among its assets a pool
of manufactured housing installment sale contracts and installment loan
agreements (including, without limitation, all related security interests and
any and all rights to receive payments which are due pursuant thereto on or
after ___________). The Trust has been created pursuant to a Pooling and
Servicing Agreement (the "Agreement"), dated as of ___________, among Access
Financial Lending Corp., as Servicer (the "Company"), Access Financial
Receivables Corp., and ________ _____________, as Trustee of the Trust (the
"Trustee"). This Certificate is one of the Certificates described in the
Agreement and is issued pursuant and subject to the Agreement. By acceptance of
this Certificate the holder assents to and becomes bound by the Agreement. To
the extent not defined herein, all capitalized terms have the meanings assigned
to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on
the fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in
_________, so long as the Agreement has not been terminated, by check (or, if
such Certificateholder holds Class B-2 Certificates with an aggregate Percentage
Interest of at least __% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such Remittance
Date) to the registered Certificateholder at the address appearing on the
Certificate Register as of the last Business Day of the calendar month
immediately preceding the calendar month in which such Remittance Date occurs,
in an amount equal to the Certificateholder's Percentage Interest of the portion
of the Class B-2 Distribution Amount. The Maturity Date of this Certificate is
_______________________.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds in the Certificate Account to the
extent available for distribution to the Certificateholder as provided in the
Agreement for payment hereunder and that none of the Company, the Seller, the
Servicer or the Trustee in its individual capacity is not personally liable to
the Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
B-7
The Certificateholder, by its acceptance of this Certificate,
represents and warrants that either (i) it is not an employee benefit plan,
trust or account that is subject to the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or that is described in Section 4975(e)(1) of the
Code or an entity using the assets of any such plan, trust or account or (ii) it
is an insurance company general account and, pursuant to Section I of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60"), the acquisition and holding of
this Certificate, and pursuant to Section III of PTCE 95-60, the servicing,
management and operation of the Trust are with respect to such Certificateholder
exempt from the prohibited transaction provisions of ERISA and the Code.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all amendments thereto will be provided to any Certificateholder free of
charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations
set forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this
Certificate for registration of transfer at 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 duly executed by the holder thereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Certificates evidencing the same aggregate Percentage Interest will be issued to
the designated transferee or transferees.
The Company, the Servicer, the Seller and the Trustee and any
agent of any of them may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of them nor any such
agent shall be affected by any notice to the contrary.
B-8
IN WITNESS WHEREOF, Access Financial Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate Trust ______ has caused
this Certificate to be duly authenticated by the manual signature of a duly
authorized officer of the Trustee.
Dated: _______________
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST ______
By: _________________________
By: _________________________
Authorized Signatory
B-9
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________ the within Access Financial Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate and does hereby
irrevocably constitute and appoint __________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By: _________________________
Signature
B-10
EXHIBIT C
FORM OF CLASS C 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.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED
PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH
ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND
IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 9.02 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
SENIOR CERTIFICATES, THE CLASS A-6 CERTIFICATES, THE CLASS B-1 CERTIFICATES AND
THE CLASS B-2 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
===============================================================================================================
Class C No. ___
(Subordinate)
- ---------------------------------------------------------------------------------------------------------------
Cut-off Date: Remittance Rate: Adjustable
___________ Denomination: ___% Percentage
Interest
First Remittance Date:
______________
- ---------------------------------------------------------------------------------------------------------------
Servicer: Aggregate Denomination of All
Access Financial Lending Class C Certificates: ___%
Corp. Percentage Interest
- ---------------------------------------------------------------------------------------------------------------
Maturity Date:
_________________
===============================================================================================================
MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES ______, CLASS C (SUBORDINATE)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN
INTEREST IN ACCESS FINANCIAL LENDING CORP. OR ANY AFFILIATE THEREOF, EXCEPT TO
THE EXTENT SET FORTH IN THE AGREEMENT.
This certifies that ____________________ is the registered
owner of the undivided Percentage Interest represented by the original principal
amount set forth above in Access Financial Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate Trust ______ (the "Trust"), which
includes among its assets a pool of manufactured housing installment sale
contracts and installment loan agreements (including, without limitation, all
related security interests and any and all rights to receive payments which are
due pursuant thereto on or after ___________). The Trust has been created
pursuant to a Pooling and Servicing Agreement (the "Agreement"), dated as of
___________, among Access Financial Lending Corp., as Servicer (the "Company"),
Access Financial Receivables Corp., as Seller, and ____________________, as
Trustee of the Trust (the "Trustee"). This Certificate is one of the
Certificates described in the Agreement and is issued pursuant and subject to
the Agreement. By acceptance of this Certificate the holder assents to and
becomes bound by the Agreement. To the extent not defined herein, all
capitalized terms have the meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on
the fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in
_________, so long as the Agreement has not been terminated, by check (or, if
such Certificateholder holds a Class C Certificate with an aggregate Percentage
Interest of at least __% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior, to such Remittance
Date) to the registered Certificateholder at the address appearing on the
Certificate Register as of the Business Day immediately preceding such
Remittance Date, in an amount equal to the Certificateholder's Percentage
Interest of the portion of the Class C Distribution Amount. The Maturity Date of
this Certificate is _____________.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds in the Certificate Account to the
extent available for distribution to the Certificateholder as provided in the
Agreement for payment hereunder and that the Trustee in its individual capacity
is not personally liable to the Certificateholder for any amounts payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement. By acceptance of this
Certificate, the Certificateholder agrees to disclosure of his, her or its name
and address to other Certificateholders under the conditions specified in the
Agreement.
The Certificateholder, by its acceptance of this Certificate,
represents and warrants that it is not an employee benefit plan, trust or
account that is subject to Employee Retirement Income Security Act of 1974, as
amended, or that is
C-2
described in Section 4975(e)(1) of the Code or an entity using the assets of any
such plan, trust or account.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all amendments thereto will be provided to any Certificateholder free of
charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations
set forth therein, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of the Certificate for
registration of transfer at 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 duly executed by the holder thereof or his or her
attorney duly authorized in writing, and thereupon one or mare new certificates
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Company, the Servicer, the Seller and the Trustee and any
agent of any of them may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of them nor any such
agent shall be affected by any notice to the contrary.
C-3
IN WITNESS WHEREOF, Access Financial Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate Trust ______ has caused
this Certificate to be duly authenticated by the manual signature of a duly
authorized officer of the Trustee.
Dated: ____________
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST ______
By _________________________
By: _________________________
Authorized Officer
C-4
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ____________________________ the within Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate and does hereby irrevocably
constitute and appoint __________________________ Attorney to transfer the said
certificate on the Certificate Register maintained by the Trustee, with full
power of substitution in the premises.
Dated:
By: _________________________
Signature
C-5
EXHIBIT D-1
FORM OF CLASS RL CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
SENIOR CERTIFICATES, THE CLASS A-4 CERTIFICATES AND THE CLASS B CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT
AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 9.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO 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 86G AND 860D OF THE INTERNAL
REVENUE CODE. THIS CERTIFICATE MAY ONLY BE TRANSFERRED TO A PERMITTED TRANSFEREE
(AS DEFINED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN); ANY SUCH
TRANSFER MUST ALSO SATISFY THE OTHER REQUIREMENTS OF SECTION 9.02 OF SUCH
POOLING AND SERVICING AGREEMENT.
==================================================================================================================
Class RL No. _____
(Subordinate)
- ------------------------------------------------------------------------------------------------------------------
Cut-off Date: Percentage Interest: ___%
______________
- ------------------------------------------------------------------------------------------------------------------
First Remittance Date: Maturity Date:
_____________ _________________
==================================================================================================================
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES ______, CLASS RL INTEREST
This certifies that ______________________________ is the
registered owner of the Residual Interest represented by this Certificate, and
entitled to certain distributions out of Access Financial Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate Trust ______ (the "Trust"),
which includes among its assets a pool of manufactured housing installment sale
contracts and installment loan agreements (including, without limitation, all
related security interests and any and all rights to receive payments which are
due pursuant thereto on or after ___________) (the "Contracts"). The Trust has
been created pursuant to a Pooling and Servicing Agreement (the "Agreement"),
dated as of ___________, among Access Financial Lending Corp., as Servicer (the
"Company"), Access Financial Receivables Corp., as Seller, and
____________________, as Trustee of the Trust (the "Trustee"). This Class RL
Certificate is one of the Class RL Certificates described in the Agreement and
is issued pursuant and subject to the Agreement. By acceptance of this Class RL
Certificate the holder assents to and becomes bound by the Agreement. To the
extent not defined herein, all capitalized terms have the meanings assigned to
such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on
the fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in
_________, so long as the Agreement has not been terminated, by check (or, if
such Class RL Certificateholder holds Class RL Certificates with an aggregate
Percentage Interest of at least __% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least ten days prior to such Remittance
Date) to the registered Class RL Certificateholder at the address appearing on
the Certificate Register as of the Business Day immediately preceding such
Remittance Date, in an amount equal to the Percentage Interest specified above
in all amounts available to be distributed with respect to the Class RL
Certificates on such Remittance Date. Pursuant to the Agreement, only
miscellaneous amounts may be so distributed.
The Class RL Certificateholder, by its acceptance of this
Certificate, agrees that it will look solely to the funds in the Certificate
Account to the extent available for distribution to the Class RL
Certificateholder as provided in the Agreement for payment hereunder and that
the Trustee in its individual capacity is not personally liable to the Class RL
Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
The Certificateholder, by its acceptance of this Certificate,
represents and warrants that it is not an employee benefit plan, trust or
account that is subject to Employee Retirement Income Security Act of 1974, as
amended, or that is described in Section 4975(e)(1) of the Code or an entity
using the assets of any such plan, trust or account.
This Class RL Certificate does not purport to summarize the
Agreement and reference is made to the Agreement
D-2
for information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee. Copies of the Agreement and all amendments thereto will be provided
to any Class RL Certificateholder free of charge upon a written request to the
Trustee.
As provided in the Agreement and subject to the limitations
set forth therein, the transfer of this Class RL Certificate is registrable in
the Certificate Register of the Trustee upon surrender of this Class RL
Certificate for registration of transfer at 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 duly executed by the holder thereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Class RL Certificates evidencing the same aggregate amount of Class RL
Certificates will be issued to the designated transferee or transferees.
As provided in the Agreement and subject to certain
limitations therein set forth, this Class RL Certificate is exchangeable for new
Class RL Certificates of authorized denominations evidencing the same aggregate
Percentage Interest as requested by the holder surrendering the same.
The Company, the Servicer, the Seller and the Trustee and any
agent of any of them may treat the person in whose name this Class RL
Certificate is registered as the owner hereof for all purposes, and none of them
nor any such agent shall be affected by any notice to the contrary.
The holder of this Class RL Certificate, by acceptance hereof,
agrees that, in accordance with the requirements of Section 86OD(b)(1) of the
Code, the federal tax return of the Lower-Tier REMIC held by the Trust for its
first taxable year shall provide that the Lower-Tier REMIC held by the Trust
elects to be treated as a "real estate mortgage investment conduit" (a "REMIC")
under the Code for such taxable year and all subsequent taxable years. The Class
RL Certificates shall be the "residual interest" in the REMIC. In addition, the
holder of this Class RL Certificate, by acceptance hereof, (i) agrees to file
tax returns consistent with and in accordance with any elections, decisions or
other reports made or filed with regard to federal, state or local taxes on
behalf of the Trust, and (ii) agrees to cooperate with the Company in connection
with examinations of the Trust's affairs by tax authorities, including
administrative and judicial proceedings, and (iii) makes the additional
agreements, designations and appointments, and undertakes the responsibilities,
set forth in Section 9.02 of the Agreement.
D-3
IN WITNESS WHEREOF, Access Financial Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate Trust ______ has caused
this Certificate to be duly executed by the manual signature of a duly
authorized officer of the Trustee.
Dated: ____________
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST ______
By: _________________________
By: _________________________
Authorized Officer
D-4
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________ the within Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate, and does hereby
irrevocably constitute and appoint ______________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By: _________________________
Signature
D-5
EXHIBIT D-2
FORM OF CLASS RU CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
SENIOR CERTIFICATES, THE CLASS A-6 CERTIFICATES AND THE CLASS B CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT
AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 9.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO 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. THIS CERTIFICATE MAY ONLY BE TRANSFERRED TO A PERMITTED TRANSFEREE
(AS DEFINED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN); ANY SUCH
TRANSFER MUST ALSO SATISFY THE OTHER REQUIREMENTS OF SECTION 9.02 OF SUCH
POOLING AND SERVICING AGREEMENT.
==================================================================================================================
Class RU No. ____
(Subordinate)
- ------------------------------------------------------------------------------------------------------------------
Cut-off Date: Percentage Interest: ___%
___________
- ------------------------------------------------------------------------------------------------------------------
First Remittance Date: Maturity Date:
_____________ ___________________
==================================================================================================================
ACCESS FINANCIAL MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
SERIES ______, CLASS RU INTEREST
This certifies that _____________________________ is the
registered owner of the Residual Interest represented by this Certificate, and
entitled to certain distributions out of Access Financial Manufactured Housing
Contract Senior/ Subordinate Pass-Through Certificate Trust ______ (the
"Trust"), which includes among its assets a pool of manufactured housing
installment sale contracts and installment loan agreements (including, without
limitation, all related security interests and any and all rights to receive
payments which are due
pursuant thereto on or after ___________) (the "Contracts"). The Trust has been
created pursuant to a Pooling and Servicing Agreement (the "Agreement"), dated
as of ___________, among Access Financial Lending Corp., as Servicer (the
"Company"), Access Financial Receivables Corp., as Seller, and
____________________, as Trustee of the Trust (the "Trustee"). This Class RU
Certificate is one of the Class RU Certificates described in the Agreement and
is issued pursuant and subject to the Agreement. By acceptance of this Class RU
Certificate the holder assents to and becomes bound by the Agreement. To the
extent not defined herein, all capitalized terms have the meanings assigned to
such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on
the fifteenth day (or if such day is not a Business Day, the next succeeding
Business Day) (the "Remittance Date") of each calendar month commencing in
_________, so long as the Agreement has not been terminated, by check (or, if
such Class RU Certificateholder holds Class RU Certificates with an aggregate
Percentage Interest of at least __% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least ten days prior to such Remittance
Date) to the registered Class RU Certificateholder at the address appearing on
the Certificate Register as of the Business Day immediately preceding such
Remittance Date, in an amount equal to the Percentage Interest specified above
in all amounts available to be distributed with respect to the Class RU
Certificates on such Remittance Date. Pursuant to the Agreement, only
miscellaneous amounts may be so distributed.
The Class RU Certificateholder, by its acceptance of this
Certificate, agrees that it will look solely to the funds in the Certificate
Account to the extent available for distribution to the Class RU
Certificateholder as provided in the Agreement for payment hereunder and that
the Trustee in its individual capacity is not personally liable to the Class RU
Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
The Certificateholder, by its acceptance of this Certificate,
represents and warrants that it is not an employee benefit plan, trust or
account that is subject to Employee Retirement Income Security Act of 1974, as
amended, or that is described in Section 4975(e)(1) of the Code or an entity
using the assets of any such plan, trust or account.
This Class RU Certificate does not purport to summarize the
Agreement and reference is made to the Agreement
D-7
for information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee. Copies of the Agreement and all amendments thereto will be provided
to any Class RU Certificateholder free of charge upon a written request to the
Trustee.
As provided in the Agreement and subject to the limitations
set forth therein, the transfer of this Class RU Certificate is registrable in
the Certificate Register of the Trustee upon surrender of this Class RU
Certificate for registration of transfer at 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 duly executed by the holder thereof
or his or her attorney duly authorized in writing, and thereupon one or more new
Class RU Certificates evidencing the same aggregate amount of Class RU
Certificates will be issued to the designated transferee or transferees.
As provided in the Agreement and subject to certain
limitations therein set forth, this Class RU Certificate is exchangeable for new
Class RU Certificates of authorized denominations evidencing the same aggregate
Percentage Interest as requested by the holder surrendering the same.
The Company, the Servicer, the Seller and the Trustee and any
agent of any of them may treat the person in whose name this Class RU
Certificate is registered as the owner hereof for all purposes, and none of them
nor any such agent shall be affected by any notice to the contrary.
The holder of this Class RU Certificate, by acceptance hereof,
agrees that, in accordance with the requirements of Section 86OD(b)(1) of the
Code, the federal tax return of the Upper-Tier REMIC held by the Trust for its
first taxable year shall provide that the Upper-Tier REMIC held by the Trust
elects to be treated as a "real estate mortgage investment conduit" (a "REMIC")
under the Code for such taxable year and all subsequent taxable years. The Class
RU Certificates shall be the "residual interest" in the REMIC. In addition, the
holder of this Class RU Certificate, by acceptance hereof, (i) agrees to file
tax returns consistent with and in accordance with any elections, decisions or
other reports made or filed with regard to federal, state or local taxes on
behalf of the Trust, and (ii) agrees to cooperate with the Company in connection
with examinations of the Trust's affairs by tax authorities, including
administrative and judicial proceedings, and (iii) makes the additional
agreements, designations and appointments, and undertakes the responsibilities,
set forth in Section 9.02 of the Agreement.
D-8
IN WITNESS WHEREOF, Access Financial Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate Trust ______ has caused
this Certificate to be duly executed by the manual signature of a duly
authorized officer of the Trustee.
Dated: ____________
ACCESS FINANCIAL MANUFACTURED
HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST ______
By: _________________________
By: _________________________
Authorized Officer
D-9
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________ the within Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate, and does hereby
irrevocably constitute and appoint ______________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated:
By: _________________________
Signature
D-10
EXHIBIT E
FORM OF ASSIGNMENT
In accordance with the Pooling and Servicing Agreement (the
"Agreement"), dated as of ___________ among Access Financial Lending Corp., as
Servicer (the "Company"), Access Financial Receivables Corp., as Seller (the
"Seller"), and ___________ ________, as Trustee of the Trust (the "Trustee"),
the Seller does hereby transfer, assign, set over and otherwise convey to the
Trustee (i) all right, title and interest in the manufactured housing
installment sale contracts described in the List of Contracts attached hereto as
Exhibit A (collectively, the "Contracts") and installment loan agreements and
the proceeds thereof (including, without limitation, all related Mortgages and
other security interests created thereby and any and all rights to receive
payments which are due pursuant thereto from and after ___________, but
excluding any rights to receive payments which were due pursuant thereto prior
to ___________) identified in the List of Contracts attached hereto, (ii) all
rights under every Hazard Insurance Policy on a Manufactured Home securing a
Contract for the benefit of the creditor of such Contract and all rights under
all blanket hazard insurance policy and the proceeds from the Errors and
Omissions Protection Policy to the extent they relate to the Manufactured Homes,
(iii) all documents contained in the Contract Files, (iv) the Seller's rights
under the Loan Sale Agreement and (v) all proceeds in any way derived from any
of the foregoing. Capitalized terms used herein but not defined herein have the
meanings assigned to them in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed this ____ day of _________.
ACCESS FINANCIAL RECEIVABLES
CORP.
By: _________________________
Name:____________________
Title:___________________
EXHIBIT F
FORM OF TRUSTEE'S ACKNOWLEDGMENT
____________________, a _________________ organized under the
laws of the State of ________, acting as trustee (the "Trustee") of the trust
created pursuant to the Pooling and Servicing Agreement dated as of ___________
among Access Financial Lending Corp., as Servicer (the "Company"), Access
Financial Receivables Corp., as Seller, and The Bank of New York, as Trustee of
the Trust (the "Trustee") (the "Agreement") (all capitalized terms used herein
without definition having the respective meanings specified in the Agreement)
acknowledges, pursuant to Section 2.03 of the Agreement, that the Trustee has
received the manufactured housing installment sale contracts described in the
List of Contracts, and further acknowledges that it will administer the Trust
Estate, in trust, pursuant to the terms of the Agreement. Capitalized terms used
herein but not defined herein have the meanings assigned to them in the
Agreement.
IN WITNESS WHEREOF, ____________________, as Trustee, has
caused this acknowledgment to be executed by its duly authorized officer as of
this ____ day of __________.
____________________, as Trustee
By: _________________________
Name:____________________
Title:___________________
EXHIBIT G
FORM OF LIMITED POWER OF ATTORNEY
Know All Men by These Presents that Access Financial Lending
Corp. hereby makes, constitutes and appoints _______________ ____, acting
through its duly appointed officers or any of them, its true and lawful
attorney, for it and in its name and on its behalf, for the sole and exclusive
purpose of authorizing said attorney to sign, endorse and deliver in its behalf
(1) any Mortgage, instrument or document and also any other writing which may be
used in connection therewith to evidence any obligation of the undersigned or
any security interest in any Contract; (2) any check or other instrument for the
payment thereof; and (3) any release, reconveyance, satisfaction, assignment or
notice of assignment of any Mortgage. This power of attorney shall not be used
to create any new obligation of the undersigned or for the institution of suit
in the name of the undersigned.
This Limited Power of Attorney has been given pursuant to
Section 5.12(d) of the Pooling and Servicing Agreement dated as of ___________,
among Access Financial Lending Corp., _______________ ____, and the other
parties named therein.
In Witness Whereof, and intending to be legally bound hereby,
the undersigned has caused this Limited Power of Attorney to be executed this
_____ day of __________.
ACCESS FINANCIAL LENDING CORP.
By: _________________________
Name:
Title:
State of New York :
: ss.
County of New York :
On This, the ____ day of _________, before me, a Notary
Public, personally appeared, ________________________, who acknowledged that he
executed the foregoing instrument for the purposes therein contained.
Witness my hand and Notarial Seal the day and year above
written.
_________________________
Notary Signature
My Commission Expires on ________________________
EXHIBIT H
FORM OF MONTHLY REPORT
MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATES, SERIES ______
Distribution Date: __________
Amount reimbursable to the Servicer __________
Senior Certificates
1.(a) Amount Available (including Monthly
Servicing Fee) __________
(b) Class A-6 Interest Deficiency
Amount (if any) and Class B-1
Interest Deficiency Amount (if any)
withdrawn for prior Remittance Date __________
(c) Amount Available after giving
effect to withdrawal of Class
A-6 Interest Deficiency Amount
and Class B-1 Interest Deficiency
Amount for prior Remittance Date __________
Interest
2. Aggregate interest
(a) Class A-1 Remittance Rate _____%
(b) Class A-1 Interest __________
(c) Class A-2 Remittance Rate _____%
(d) Class A-2 Interest __________
(e) Class A-3 Remittance Rate _____%
(f) Class A-3 Interest __________
(g) Class A-4 Remittance Rate _____%
(h) Class A-4 Interest __________
(i) Class A-5 Remittance Rate _____%
(j) Class A-5 Interest __________
3. Amount applied to:
(a) Unpaid Senior Interest Shortfall __________
4. Remaining:
(a) Unpaid Senior Interest Shortfall __________
Count
Prior Period Ending Scheduled Balance ______ __________
Principal
5. Formula Principal Distribution Amount:
(a) Scheduled principal __________
(b) Principal Prepayments ______ __________
(c) Liquidated Contracts ______ __________
(d) Repurchases __________
(e) Accelerated Principal __________
==========
TOTAL __________
6. Pool Scheduled Principal Balance __________
7. Unpaid Senior Principal Shortfall (if
any) following prior Remittance Date __________
8. Senior Percentage for such Remittance
Date (Until Class B Cross-over Date, and
on each Remittance Date thereafter
unless each Class B Principal
Distribution Test is satisfied, equals
Senior Principal Balance divided by Pool
Scheduled Principal Balance) __________
9. Senior Percentage for the following
Remittance Date __________
10. Senior principal distribution:
(a) Class A-1 __________
(b) Class A-2 __________
(c) Class A-3 __________
(d) Class A-4 __________
(e) Class A-5 __________
11. (a) Class A-1 Principal Balance __________
(b) Class A-2 Principal Balance __________
(c) Class A-3 Principal Balance __________
(d) Class A-4 Principal Balance __________
(e) Class A-5 Principal Balance __________
12. Unpaid Senior Principal Shortfall (if
any) following current Remittance Date __________
H-2
Class A-6 Certificates
13. Class A-6 Amount Available __________
Interest
14. Aggregate interest
(a) Class A-6 Remittance Rate (____%
unless Weighted Average Contract ____%
Rate is below ____%)
(b) Class A-6 Interest __________
15. Amount applied to Unpaid Class A-6
Interest Shortfall __________
16. Amount applied to Class A-6 Interest
Deficiency Amount __________
17. Remaining unpaid Class A-6 Interest
Deficiency Amount __________
18. Remaining Unpaid Class A-6 Interest
Shortfall __________
Principal
19. Formula Principal Distribution Amount:
(a) Scheduled principal __________
(b) Principal Prepayments __________
(c) Liquidated Contracts __________
(d) Repurchases __________
20. Pool Scheduled Principal Balance
21. Class A-6 Percentage after prior ______%
Remittance Date
22. Class A-6 Percentage for such Remittance ______%
Date
23. Class A-6 Percentage for the following
Remittance Date ______%
24. Class A-6 principal distribution:
(a) Class A-6 (current) __________
(b) Unpaid Class A-6 Principal __________
Shortfall (if any) following prior
Remittance Date
25. Unpaid Class A-6 Principal Shortfall (if
any) following current Remittance Date __________
H-3
Class B Principal Distribution Tests (tests
must be satisfied on and after the Remittance
Date occurring in _________)
26. Average Sixty-Day Delinquency Ratio Test
(a) Sixty-Day Delinquency Ratio for __________
current Remittance Date
(b) Average Sixty-Day Delinquency Ratio
(arithmetic average of ratios for
this month and two preceding
months; may not exceed ____%) __________
27. Average Thirty-Day Delinquency Ratio
Test
(a) Thirty-Day Delinquency Ratio for
current Remittance Date __________
(b) Average Thirty-Day Delinquency
Ratio (arithmetic average of ratios
for this month and two preceding
months; may not exceed ____%) __________
28. Cumulative Realized Losses Test
(a) Cumulative Realized Losses for
current Remittance Date (as a
percentage of Cut-off Date Pool
Principal Balance; may not exceed
___________________________________
___________________________________
___________________________________
thereafter) ______%
29. Current Realized Losses Test __________
(a) Current Realized Losses for current
Remittance Date __________
(b) Current Realized Loss Ratio (total
Realized Losses during the __
immediately preceding Collection
Period, divided by the arithmetic
average of Pool Scheduled Principal
Balances as of the last day of the
preceding Collection Period and the
Pool Scheduled Principal Balance as __________
of the last day of the immediately
preceding Collection Period; may
not exceed ____%)
H-4
30. Class B Principal Balance Test
(a) Class B Principal Balance (before
any distributions on current
Remittance Date) divided by Pool
Scheduled Principal Balance for
prior Remittance Date (must equal
or exceed ____%) and the Class B
Principal Balance as of such
Remittance Date is greater than or
equal to $_________ __________
Class B-1 Certificates
31. Amount Available less the Senior
Distribution Amount and Class A-6
Distribution Amount __________
Interest
32. Class B-1 Remittance Rate _____%
33. Class B-1 Interest __________
34. Current interest __________
35. Amount applied to Unpaid Class B-1 __________
Interest Shortfall
36. Amount applied to Class B-1 Interest
Deficiency Amount __________
37. Remaining unpaid Class B-1 Interest
Deficiency Amount __________
38. Remaining Unpaid Class B-1 Interest
Shortfall __________
Principal
39. Unpaid Class B-1 Principal Shortfall (if
any) following prior Remittance Date __________
40. (a) Class B Percentage for such
Remittance Date (until Class B
Cross-over Date, and on each
Remittance Date thereafter unless
each Class B Principal Distribution
Test is satisfied, equals zero.
Thereafter, if each Class B
Principal Distribution Test is
satisfied, equals 100% minus Senior
Percentage) ______%
(b) Class B Percentage for the
following Remittance Date ______%
41. Current Principal (Class B Percentage of
Formula Principal Distribution Amount) __________
42. (a) Class B-1 Principal Shortfall __________
H-5
(b) Unpaid Class B-1 Principal
Shortfall __________
43. Class B Principal Balance __________
44. Class B-1 Principal Balance __________
Class B-2 Certificates
45. Remaining Amount Available __________
Interest
46. Class B-2 Remittance Rate (____%, unless
Weighted Average Contract Rate is less
than ____%) ______%
47. Class B-2 Interest __________
48. Current interest __________
49. Amount applied to Unpaid Class B-2
Interest Shortfall __________
50. Remaining Unpaid Class B-2 Interest
Shortfall __________
Principal
51. Unpaid Class B-2 Principal Shortfall (if
any) following prior Remittance Date __________
52. Class B-2 Principal Liquidation Loss
Amount __________
53. Current principal (zero until Class B-1
paid down; thereafter, Class B
Percentage of Formula Principal
Distribution Amount) __________
54. Class B-2 Principal Balance __________
Senior, Class A-6, Class B-1 and Class B-2 Certificates
Aggregate Balances of delinquent Contracts as
of month-end
56. 30 - 59 days __________
57. 60 days or more __________
58. Manufactured Homes repossessed __________
59. Manufactured Homes repossessed but
remaining in inventory __________
60. Weighted Average Contract Rate of all
outstanding Contracts ______%
H-6
Residual Certificates
61. (a) Monthly Servicing Fee (deducted
from Certificate Account balance to
arrive at Amount Available if the
Company is not the Servicer;
deducted from funds remaining after
payment of Senior Distribution
Amount, Class A-6 Distribution
Amount, Class B-1 Distribution
Amount and Class B-2 Distribution
Amount, if the Company is the
Servicer) __________
(b) Monthly interest on Certificate
Account __________
Class A-6, Class B-1 and Class B-2
Certificates
64. Class A-6 Interest Deficiency on such
Remittance Date __________
65. Class B-1 Interest Deficiency on such
Remittance Date __________
66. Class B-2 Interest Deficiency on such
Remittance Date __________
Repossessed Contracts
67. Repossessed Contracts __________
68. Repossessed Contracts Remaining in
Inventory __________
Accelerated Principal Calculation
69. Remaining Amount Available __________
70. Accelerated Principal __________
Residual Certificates
71. Class C Distribution Amount (excess, if
any, 1/12 Weighted Net Contract
Rate at beginning x pool scheduled
balance at beginning MINUS the
Certificate Interest [A-1 to B-2]
Distribution Amount for date.) __________
72. Release Amount (if B-2 is zero) __________
73. Reimburse Residual Certificate Holder
per Section 10.06 (REMIC tax matters) __________
H-7
74. Remaining to Residual Holder __________
Please contact the Bondholder Relations Department of ________
_____________________________ with any questions regarding this Statement or
your Distribution.
H-8
EXHIBIT I
FORM OF CERTIFICATE OF SERVICING OFFICER
ACCESS FINANCIAL LENDING CORP.
The undersigned certifies that he is a [title] of Access
Financial Lending Corp., a Delaware corporation (the "Company"), and that as
such he is duly authorized to execute and deliver this certificate on behalf of
the Company pursuant to Section 6.02 of the Pooling and Servicing Agreement (the
"Agreement") dated as of ___________ among Access Financial Lending Corp., as
Servicer (the "Company"), Access Financial Receivables Corp., as Seller, and
____________________, as Trustee of the Trust (the "Trustee") (all capitalized
terms used herein without definition having the respective meanings specified in
the Agreement), and further certifies that:
1. The Monthly Report for the period from _______ to _________
attached to this certificate is complete and accurate in accordance with the
requirements of Sections 6.01 and 6.02 of the Agreement;
2. As of the date hereof, no Event of Termination or event
that with notice or lapse of time or both would become an Event of Termination
has occurred; and
3. As of the close of the most recent Collection Period, the
weighted average number of months in inventory of all non-liquidated
Manufactured Homes is ____________.
IN WITNESS WHEREOF, I have affixed hereunto my signature this
____ day of __________, 19_.
ACCESS FINANCIAL LENDING CORP.
By:__________________________________________
Name:____________________________________
Title:___________________________________
EXHIBIT J
REPORT ON AGREED UPON PROCEDURES
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
The Internal Audit Department of Access Financial Lending Corp. ("Internal
Audit") has performed the procedures enumerated below, which were agreed to by
____________________, Access Financial Lending Corp. ("AFL") and
__________________________ ___________ ("____") with respect to the Access
Financial Manufactured Housing Contract Senior/Subordinated Pass-Through
Certificates, Series ______ solely to assist the parties to the agreement in
determining if there has been a default in the fulfillment of the obligations
specified below for the month ended [______]. The sufficiency of these
procedures is solely the responsibility of the specified users of this report.
Consequently, we make no representation regarding the sufficiency of the
procedures described below either for the purpose for which this report has been
requested or for any other purpose.
Internal Audit tested a sufficient number of transactions governed by the below
criteria so that the testing was representative of AFL's volume of transactions.
The working papers prepared as a result of the procedures performed accurately
reflect the work performed and the working papers are complete.
Population Number (N) Sample Size
______________ ___
_________ ___
_______ _____________________________
Procedures and Findings
A. COLLECTION OF CONTRACT PAYMENTS
Information and Procedures. Internal Audit obtained from management a
reconciliation of lockbox collections and internal collections (i.e.,
received directly from obligors through postal service channels or
Western Union wire services) to postings against the loan portfolio in
the aggregate as of the close of business for the month ended
[__________] and performed the procedures indicated with respect to
such information.
1. Tested the reconciliation for reasonableness and mechanical
accuracy. This procedure included (1) tracing the balance of
loan principal outstanding as of the close of business as of
the beginning of the month ended [_______] on the
reconciliation to the trial balance obtained from the TMS
loan servicing system, (2) tracing the reconciliation's
balance as of the end of the month to a trial balance
obtained from the TMS loan servicing system, (3) comparing
principal additions for the month to the summation of newly
funded contracts, (4) comparing the summation of payments
applied during the month to the TMS loan servicing system
and (5) an examination and validation of any reconciling
items exceeding $_____ or, in the auditor's opinion, of an
uncommon nature. All exceptions will be noted in "Findings"
below and for purposes of this procedure an error rate of
__% will be considered a tolerable variance. Re-tests of
this procedure are documented for the independent
accountant's letter.
Findings:
2. Determined that cash collections were deposited into the
correct trustee account by (a) tracing a sample of
individual deposits contained in the deposit supporting
documentation to a listing of contracts allocated to the
Certificateholders of Access Financial Lending Corp. Series
______ Pass-Through Certificates or held for sale; (b)
determining that the individual contracts are properly
identified as to ownership in the servicing system; and
tracing a sample of posting reported in the servicing system
for Certificateholders back to deposit documentation to the
trust account as defined in Section ____ of the Pooling and
Servicing Agreement. All exceptions will be noted in
"Findings" below and for purposes of this procedure an error
rate of __% will be considered a
J-2
tolerable variance. Re-tests of this procedure are
documented in the independent accountant's letter.
Findings:
B. REALIZATION UPON CONTRACTS
Information and Procedures. Internal Audit obtained from management an
analysis of all repossessions and/or foreclosures occurring during the
month ended [________] and performed the procedures indicated with
respect to such information.
1. Agreed the analysis balances to the appropriate asset,
liability, income/expense and gain/loss accounts reflected
in the general ledger as of the end of the month.
Recalculated gains and losses on a test basis for compliance
with policies and procedures (i.e., application of
pre-non-accrual status interest towards the gain/loss
determination). All exceptions will be noted in "Findings"
below and for purposes of this procedure an error rate of
__% will be considered a tolerable variance. Re-tests of
this procedure are documented for the independent
accountant's letter.
C. REPORTING TO CERTIFICATEHOLDERS
1. Obtained copies of the remittance Statements to
Certificateholders as required and defined under Reports to
Certificateholders of the Pooling and Servicing Agreement for
Access Financial Lending Corp. Series ______ Pass-Through
Certificates and performed the following:
a) Tested the allocation and distribution of interest in
accordance with the pass-through of interest for each
certificate type as defined in Section _____ of the
Pooling and Servicing Agreement.
Findings:
b) Tested the allocation and distribution of principal
in accordance with the pass-through of principal for
each certificate type as defined in Section _____ of
the Pooling and Servicing Agreement. When
appropriate, agreed information reported to servicing
system reports used in the
J-3
determination of the proper application of principal.
Findings:
c) Tested the Series ______ Pass-Through Certificate's
pool performance reports as defined in the Pooling
and Servicing Agreement. Section _____ to determine
the reasonableness of the information disclosed. When
appropriate, agreed information to servicing system
reports and detail.
Findings:
J-4
EXHIBIT K
FORM OF REPRESENTATION LETTER
_____________________________________
_____________________________________
_____________________________________
Access Financial Lending Corp.
400 Highway 169 South, Suite 400
P.O. Box 26365
St. Louis Park, MN 55426-0365
Re: Manufactured Housing Contract
Senior/Subordinate Pass-Through
Certificates, Series ______,
[Class B-2, Class C or Residual]
The undersigned (the "Transferee") has agreed to purchase from
___________________________(the "Transferor") the following:
Class Number
_________ __________
_________ __________
_________ __________
_________ __________
_________ __________
A. Rule 144A "Qualified Institutional Buyers" should complete
this section
I. The Transferee is (check one):
__________ (i) An insurance company, as defined in
Section 2(13) of the Securities Act of
1933, as amended (the "Securities Act"),
(ii) an investment company registered under
the Investment Company Act of 1940, as
amended (the "Investment Company Act"),
(iii) a business development company as
defined in Section 2(a)(48) of the
Securities Act, (iv) 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, as amended, (v) a
plan established and maintained by a state,
its political subdivisions, or any agency
or instrumentality of a state or its
political subdivisions, for the benefit of
its employees, (vi) an employee benefit plan
within the meaning of Title I of the
Employee Retirement Income Security Act of
1974, as amended ("ERISA"), (vii) a business
development company as defined in Section
202(a)(22) of the Investment Advisors Act of
1940, as amended, (viii) an organization
described in Section 501(c)(3) of the
Internal Revenue Code, corporation (other
than a bank as defined in Section 3(a)(2) of
the Securities Act or a savings and loan
association or other institution referenced
in Section 3(a)(2) of the Securities Act or
a foreign bank or savings and loan
association or equivalent institution),
partnership, or Massachusetts or similar
business trust; or (ix) an investment
advisor registered under the Investment
Advisors Act of 1940, as amended, which, for
each of (i) through (ix), owns and invests
on a discretionary basis at least $100
million in securities other than securities
of issuers affiliated with the Transferee,
securities issued or guaranteed by the
United States or a person controlled or
supervised by and acting as an
instrumentality of the government of the
United States pursuant to authority granted
by the Congress of the United States, bank
deposit notes and certificates of deposit,
loan participations, repurchase agreements,
securities owned but subject to a repurchase
agreement, and currency, interest rate and
commodity swaps (collectively, "Excluded
Securities");
__________ a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") that in the
aggregate owns and invests on a
discretionary basis at least $10 million of
securities other than Excluded Securities
and securities constituting the whole or
part of an unsold allotment to, or
subscription by, Transferee as a participant
in a public offering;
__________ an investment company registered under the
Investment Company Act that is part of a
family of investment companies (as defined
K-2
in Rule 144A of the Securities and Exchange
Commission) which own in the aggregate at
least $100 million in securities other than
Excluded Securities and securities of
issuers that are part of such family of
investment companies;
__________ an entity, all of the equity owners of
which are entities described in this
Paragraph A(I);
__________ a bank as defined in Section 3(a)(2) of the
Securities Act, any savings and loan
association or other institution as
referenced in Section 3(a)(5)(A) of the
Securities Act, or any foreign bank or
savings and loan association or equivalent
institution that in the aggregate owns and
invests on a discretionary basis at least
$100 million in securities other than
Excluded Securities and has an audited net
worth of at least $25 million as
demonstrated in its latest annual financial
statements, as of a date not more than 16
months preceding the date of transfer of the
Certificates to the Transferee in the case
of a U.S. Bank or savings and loan
association, and not more than 18 months
preceding such date in the case of a foreign
bank or savings association or equivalent
institution.
II. The Transferee is acquiring such Certificates solely for
its own account, for the account of one or more others, all of which are
"Qualified Institutional Buyers" within the meaning of Rule 144A, or in its
capacity as a dealer registered pursuant to Section 15 of the Exchange Act
acting in a riskless principal transaction on behalf of a "Qualified
Institutional Buyer". The Transferee is not acquiring such Certificates with a
view to or for the resale, distribution, subdivision or fractionalization
thereof which would require registration of the Certificates under the
Securities Act.
B. "Accredited Investors" should complete this Section
I. The Transferee is (check one):
__________ a bank within the meaning of Section 3(a)(2) of
the Securities Act;
K-3
__________ a savings and loan association or other
institution defined in Section 3(a)(5) of
the Securities Act;
__________ a broker or dealer registered pursuant to
the Exchange Act;
__________ an insurance company within the meaning of
Section 2(13) of the Securities Act;
__________ an investment company registered under the
Investment Company Act;
__________ an employee benefit plan within the meaning
of Title I of ERISA, which has total assets
in excess of $5,000,000;
__________ another entity which is an "accredited
investor" within the meaning of paragraph
(fill in) of subsection (a) of Rule 501 of
the Securities and Exchange Commission.
II. The Transferee is acquiring such Certificates solely for
its own account, for investment, and not with a view to or for the resale,
distribution, subdivision or fractionalization thereof which would require
registration of the Certificates under the Securities Act.
C. If the Transferee is unable to complete one of paragraph
A(I) or paragraph B(I) above and is not a designated PORTAL depository
organization, the Transferee must furnish an opinion in form and substance
satisfactory to the Trustee of counsel satisfactory to the Trustee to the effect
that such purchase will not violate any applicable federal or state securities
laws.
D. The Transferee is not a pension or benefit plan or
individual retirement arrangement that is subject to ERISA, or to the Internal
Revenue Code of 1986, as amended (any such plan or arrangement, an "ERISA
Plan").
E. If the Transferee is unable to complete paragraph D above,
the Transferee must complete a Benefit Plan Affidavit in the Form attached.
Very truly yours,
By:_________________________________
Title:______________________________
Dated:________________________________
K-4
FORM OF RESIDUAL CERTIFICATE
TAX MATTERS TRANSFER CERTIFICATE
[Complete if a Residual Certificate is being transferred.]
AFFIDAVIT PURSUANT TO SECTION
860(e) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Investor] (the
"Investor"), a [savings institution] [corporation] duly organized and existing
under the laws of [the State of __________] [the United States], on behalf of
which he makes this affidavit.
2. That (i) the Investor is not a "disqualified organization"
and will not be a "disqualified organization" as of [date of transfer] (For this
purpose, a "disqualified organization" means the United States, any state or
political subdivision thereof, any foreign government, any international
organization, any agency or instrumentality of any of the foregoing (other than
certain taxable instrumentalities), any cooperative organization furnishing
electric energy or providing telephone service to persons in rural areas, or any
organization (other than a farmers' cooperative) that is exempt from federal
income tax unless such organization is subject to the tax on unrelated business
income); (ii) it is not acquiring the Class RU [RL] Certificate for the account
of a disqualified organization; (iii) it consents to any amendment of the
Pooling and Servicing Agreement dated as of ___________, among Access Financial
Receivables Corp., as Seller, Access Financial Lending Corp., as Servicer and
____________________, as Trustee that shall be deemed necessary by the Trustee
(upon advice of counsel) to constitute a reasonable arrangement to ensure that
the Class RU [RL] Certificates will not be owned directly or indirectly by a
disqualified organization; and (iv) it will not transfer such Class RU [RL]
Certificate unless (a) it has received from the transferee an affidavit in
substantially the same form as this affidavit containing these same four
representations and (b) as of the time of the transfer, it does not have actual
knowledge that such affidavit is false.
IN WITNESS WHEREOF, the Investor has caused this instrument to
be executed on its behalf, pursuant to authority
K-5
of its Board of Directors, by its [Title of Officer] and its corporate seal to
be hereunto attached, attested by its [Assistant] Secretary, this ____ day of
__________, ____.
[NAME OF INVESTOR]
By:_____________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
Attest:
____________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of
Officer], known or proved to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Investor, and acknowledged to
me that he executed the same as his free act and deed and the free act and deed
of the Investor.
Subscribed and sworn before me this ____ day of __________,
____.
_________________________
NOTARY PUBLIC
COUNTY OF _______________
STATE OF ________________
My commission expires the ____ day of ____________, ____.
K-6
BENEFIT PLAN AFFIDAVIT
Re: Access Financial
Manufactured Housing
Contract Trust ______
STATE OF __________ )
) ss:
COUNTY OF __________ )
Under penalties of perjury, I, the undersigned, declare that,
to the best of my knowledge and belief, the following representations are true,
correct, and complete.
1. That I am a duly authorized officer of __________ (the
"Purchaser"), whose taxpayer identification number is __________, and on behalf
of which I have the authority to make this affidavit.
2. That the Purchaser is acquiring a Class ___ Certificate
(the "___ Certificate") representing an interest in the Trust, for certain
assets of which one or more real estate mortgage investment conduit elections
("REMICs") are to be made under Section 860D of the Internal Revenue Code of
1986, as amended (the "Code").
3. The Purchaser represents that either (a) it is not (i) an
employee benefit plan (as defined in section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) subject to the provisions of
Title I of ERISA, (ii) a plan described in section 4975(e)(1) of the Internal
Revenue Code of 1986, or (iii) an entity whose underlying assets are deemed to
be assets of a plan described in (i) or (ii) above by reason of such plan's
investment in the entity (any such entity described in clauses (i) through
(iii), a "Benefit Plan Entity"(1) or (b) it is an insurance company general
account and,
- --------
(1) Do not include option (b) or (c) for acquisitions or transfers of a class of
Certificates which has not been placed or underwritten by an entity which has an
Underwriter Exemption (as described in Prohibited Transaction Class Exception
95-60) and do not include option (c) for acquisitions or transfers of
Certificates that (i) evidence rights and interests that are subordinated to the
rights and interests evidenced by other Certificates of the Trust, or (ii) occur
at any time during which the Certificates being acquired or transferred are not
rated in one of the top three rating categories of any rating agency that
satisfies the requirements of Prohibited Transaction Exemption 89-90 and that
(a) is rating the Certificates as of the date hereof and (b) has been requested
by the issuer of the Certificates to rate the Certificates.
K-7
pursuant to Section I of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60"), the acquisition and holding of the Class A Certificates and, pursuant
to Section III of PTCE 95-60, the servicing, management and operation of the
Trust are with respect to such Purchaser exempt from the "prohibited
transaction" provisions of ERISA and the Code or (c) if the Purchaser is a
Benefit Plan Entity, the following:
(i) the Purchaser is not a Benefit Plan Entity with respect to
an employee benefit plan sponsored by any member of the Restricted Group (as
defined in the Prospectus);
(ii) either (A) the person who has discretionary authority or
renders investment advice to the Purchaser with respect to the investment of
plan assets in the Class __ Certificates is not an Obligor (or an affiliate)
with respect to the Contracts (as defined in the Prospectus), or (B) the person
who has such discretionary authority or renders such investment advice is an
Obligor (or an affiliate) with respect to less than 5 percent of the Contracts;
and, immediately after the acquisition of the Class __ Certificates, no more
than 25 percent of the assets of the Purchaser are invested in certificates
representing an interest in a trust containing assets sold or serviced by the
same entity; and
(iii) the Purchaser is an "accredited investor" as defined in
Rule 501(a) of Regulation D pursuant to the 1933 Act.
Capitalized terms used in and not otherwise defined herein
shall have the meaning assigned to them in the Pooling and Servicing Agreement.
K-8
IN WITNESS WHEREOF, the Purchaser has caused this instrument
to be duly executed on its behalf, by its duly authorized officer this _____ day
of __________, 19__.
_______________________________
By:____________________________
Its:___________________________
Personally appeared before me __________, known or proved to
me to be the same person who executed the foregoing instrument and to be a
__________ of the Purchaser, and acknowledged to me that he or she executed the
same as his or her free act and deed and as the free act and deed of the
Purchaser.
Subscribed and sworn before me
this ____ day of __________, 19__
______________________________________
Notary Public
My commission expires the ____ day
of ____________________, 19__.
K-9
EXHIBIT L
REQUEST FOR RELEASE AND RECEIPT OF DOCUMENTS
To: ____________________, as Custodian
____________________________
____________________________
Attention: _____________________________________
Re: Pooling and Servicing Agreement dated as of ___________ among Access
Financial Lending Corp., Access Receivables Corp., and ___________
____________________.
Ladies and Gentlemen:
In connection with the administration of the Contracts held by you as
Trustee, we request the release, and acknowledge receipt, of the Contracts
described below, for the reason indicated.
Obligor's Name, Address & Zip Code: Each of the Obligors
indicated on the attached Schedule A
Contract Number: Each of the Contract Numbers indicated on
the attached Schedule A
Reason for Requesting Documents (check one or more):
_____ 1. Contract paid in full;
_____ 2. Contract repurchased; and/or
a. _____ Delinquent
b. _____ Repossession
3. Other (explain).
Capitalized words and phrases used herein shall have the receptive meanings
assigned to them in the Pooling and Servicing Agreement.
ACCESS FINANCIAL LENDING CORP.
By:__________________________________________
Name:
Title:
L-2
EXHIBIT M
AUCTION PROCEDURES
I. Pre-Auction Process
a. If by the ninetieth day following the Auction Call
Date, the Company has not exercised its rights as
described in paragraphs (b) and (c) of Section 12.03
of the Pooling and Servicing Agreement, then a plan
of complete liquidation with respect to the Contracts
will be adopted by the Trustee in order to satisfy
REMIC requirements, and the Trustee will notify
__________________________________ (or another
investment banking or whole-loan trading firm
selected by the Company, _____________________
____________ or such other investment bank or trading
firm, the "Advisor"), as Advisor of the assets of the
proposed auction.
b. Upon receiving notice of the proposed auction, the
Advisor will initiate its general auction procedures
consisting of the following: (i) with the assistance
of the Company, prepare a general solicitation
package along with a confidentiality agreement; (ii)
prepare a list of qualified bidders, in a
commercially reasonable manner; (iii) initiate
contact with all qualified bidders; (iv) 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 Company of all potential bidders and
anticipated timetable.
c. The general solicitation package will include: (i)
the prospectus from the public offering of the Class
A and Class B-1 Certificates ("Prospectus"); (ii) a
copy of all monthly servicing reports or a copy of
all annual servicing reports and, upon a written
request, the prior years' monthly servicing reports;
(iii) a form of a purchase and sale agreement and
servicing agreement for such sale; (iv) a description
of the minimum purchase price required to cause the
Trustee to sell the Contracts as set forth in Section
12.03(d) of the Pooling and Servicing Agreement; (v)
a
formal bidsheet; (vi) a detailed timetable; and (vii)
a preliminary data tape of the Contracts as of the
most recent Payment Date reflecting the same data
attributes used to create the original Cut-Off Date
tables for the Prospectus.
d. The Advisor will send solicitation packages to all
bidders no later than the Payment Date preceding the
date of the auction, which date shall be fifteen (15)
Business Days before a Payment Date (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 ten
(10) Business Days before the Auction Date. The
Company and the Advisor will be required to satisfy
all relevant questions at least five (5) Business
Days prior to the Auction Date and distribute the
questions and answers to all bidders.
II. Auction Process
a. The Advisor will be allowed to bid in the auction,
but will not be required to do so.
b. The Company will also be allowed to bid in the
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 such office as shall be designated by
the Trustee by _____________; with the winning bidder
to be notified by ____ ________. All acceptable bids
(as described in Section 8.3 of the Pooling and
Servicing 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 competitive participants in the
manufactured housing market, the Trustee may,
following consultation with the Advisor and the
Company, decline to consummate the sale.
e. Upon notification to the winning bidder, a ___
____________ good faith deposit of the aggregate
balance of the unpaid principal balances of the
Contracts as of the last day
M-2
of the preceding Remittance Period 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 Certificate Account, such time
not to exceed one (1) Business Day before the final
Payment Date.
f. The winning bidder will receive on the Auction Date a
copy of the draft purchase and sale agreement and
servicing 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 this
letter if it is the winning bidder. In the case where
the Advisor (or the Company) is the winning bidder,
it will provide in its letter for market comparables
and valuations.
h. The auction will stipulate that the Servicer or a
successor Servicer be retained to service the
Contracts sold pursuant to the terms of the purchase
and sale agreement and the servicing agreement.
M-3