EXHIBIT 99.3
ORIGEN SERVICING, INC.,
as Servicer and Administrator,
[_________________________________],
[as Backup Servicer]
ORIGEN MANUFACTURED HOUSING CONTRACT TRUST [20__-__],
as Issuer
and
[_________________________________],
as Indenture Trustee,
SERVICING AGREEMENT
Dated as of [_____________, 20__]
Manufactured Housing Installment Sales Contracts
and Installment Loan Agreements and Residential Mortgage Loans
Origen Manufactured Housing Contract Trust [20__-__]
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions.................................................................................... 1
Section 1.02. Other Definitional Provisions.................................................................. 2
Section 1.03. Interest Calculations.......................................................................... 2
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01. Covenants, Representations and Warranties Regarding the Servicer............................... 2
Section 2.02. Existence...................................................................................... 4
Section 2.03. Enforcement of Representations and Warranties.................................................. 4
ARTICLE III
ADMINISTRATION AND SERVICING OF ASSETS
Section 3.01. Responsibility for Asset Administration........................................................ 5
Section 3.02. Standard of Care............................................................................... 5
Section 3.03. Records........................................................................................ 6
Section 3.04. Inspection: Electronic File.................................................................... 6
Section 3.05. Collection Account............................................................................. 6
Section 3.06. Permitted Withdrawals.......................................................................... 7
Section 3.07. Enforcement.................................................................................... 8
Section 3.08. Indenture Trustee to Cooperate................................................................. 9
Section 3.09. Costs and Expenses............................................................................. 10
Section 3.10. Maintenance of Insurance....................................................................... 11
Section 3.11. Repossession................................................................................... 13
Section 3.12. Subservicing Arrangements...................................................................... 14
Section 3.13. Retitling; Security Interests.................................................................. 15
Section 3.14. Payment of Taxes............................................................................... 15
Section 3.15. Statement as to Compliance..................................................................... 16
Section 3.16. Independent Public Accountants' Servicing Report............................................... 16
Section 3.17. Optional Redemption............................................................................ 17
ARTICLE IV
SERVICING CERTIFICATE
Section 4.01. Electronic Files............................................................................... 17
Section 4.02. Exchange Act Reporting......................................................................... 17
ARTICLE V
THE SERVICER [AND THE BACKUP SERVICER]
Section 5.01. Liability of the Servicer [and the Backup Servicer]............................................ 19
Section 5.02. Merger or Consolidation of or Assumption of the Obligations of the Servicer
[and the Backup Servicer]..................................................................................... 19
Section 5.03. Limitation on Liability of the Servicer and Others............................................. 19
Section 5.04. Servicer [and Backup Servicer] Not to Resign................................................... 20
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Section 5.05. Delegation of Duties........................................................................... 21
Section 5.06. Rights of the Issuer in Respect of the Servicer................................................ 21
Section 5.07. Indemnification................................................................................ 21
ARTICLE VI
DEFAULT
Section 6.01. Servicer Events of Default..................................................................... 22
Section 6.02. Transfer....................................................................................... 22
Section 6.03. [Backup Servicer] to Act, Appointment of Successor............................................. 24
Section 6.04. Notification to Noteholders.................................................................... 25
Section 6.05. Effect of Transfer............................................................................. 25
Section 6.06. Transfer of Collection Account................................................................. 25
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment...................................................................................... 26
Section 7.02. GOVERNING LAW.................................................................................. 26
Section 7.03. Notices........................................................................................ 26
Section 7.04. Severability of Provisions..................................................................... 27
Section 7.05. Third-Party Beneficiaries...................................................................... 27
Section 7.06. Counterparts................................................................................... 28
Section 7.07. Effect of Headings and Table of Contents....................................................... 28
Section 7.08. Termination.................................................................................... 28
Section 7.09. No Petition.................................................................................... 28
Section 7.10. No Recourse.................................................................................... 28
Section 7.11. Indenture Trustee Rights....................................................................... 28
ARTICLE VIII
DUTIES OF THE SERVICER AS ADMINISTRATOR
Section 8.01. Administrative Duties.......................................................................... 28
Section 8.02. Records........................................................................................ 30
Section 8.03. Additional Information to be Furnished......................................................... 30
Section 8.04. No Recourse to Owner Trustee................................................................... 30
Section 8.05. Exchange Act Reporting......................................................................... 30
EXHIBIT A LIST OF CONTRACTS............................................................................. A-l
EXHIBIT B FORM OF CERTIFICATE REGARDING REPURCHASED CONTRACTS ORIGEN
FINANCIAL L.L.C. CERTIFICATE REGARDING REPURCHASED CONTRACTS............................................ B-1
EXHIBIT C-l FORM OF CERTIFICATION TO BE PROVIDED BY THE ADMINISTRATOR WITH FORM 10-K.................... C-l-1
EXHIBIT C-2 FORM OF CERTIFICATION TO BE PROVIDED TO THE ADMINISTRATOR BY THE INDENTURE TRUSTEE.......... C-2-1
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EXHIBIT C-3 FORM OF CERTIFICATION TO BE PROVIDED TO THE ADMINISTRATOR BY THE SERVICER................... C-3-1
EXHIBIT D OFFICER'S CERTIFICATE REGARDING ANNUAL
STATEMENT OF COMPLIANCE................................................................................. D-l
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This SERVICING AGREEMENT, dated as of _____________, 20____, among
Origen Servicing, Inc., as Servicer (the "Servicer"),
[_________________________________, as Backup Servicer (the "Backup Servicer")],
Origen Manufactured Housing Contract Trust 20__-__, as Issuer (the "Issuer") and
[____________________________], as Indenture Trustee (the "Indenture Trustee").
W I T N E S S E T H T H A T:
WHEREAS, pursuant to the terms of the Asset Purchase Agreement,
Origen Residential Securities, Inc. (the "Depositor") will acquire the Assets;
WHEREAS, the Depositor will create Origen Manufactured Housing
Contract Trust 20__-__, a Delaware statutory trust, and will transfer the Assets
and all of its rights under the Asset Purchase Agreement to the Issuer;
WHEREAS, pursuant to the terms of a Trust Agreement, dated as of
_________________, 20__ (the "Trust Agreement"), among the Depositor, as
depositor, [______________________________________], as owner trustee (the
"Owner Trustee") and [______________________________________], as certificate
registrar and certificate paying agent, the Depositor will convey the Assets to
the Issuer in exchange for the Certificates (as defined below);
WHEREAS, pursuant to the terms of the Trust Agreement, the Issuer
will issue and transfer to or at the direction of the Depositor, the Trust
Certificates, Series 20__-__ (the "Certificates");
WHEREAS, pursuant to the terms of an Indenture, dated as of
_________________, 20__ (the "Indenture"), between the Issuer and
[_________________________________] (the "Indenture Trustee"), the Issuer will
pledge the Assets and issue and transfer to or at the direction of the Depositor
the Origen Manufactured Housing Contract Trust Notes, Series 20__-__, Class A-1,
Class A-2, Class A-3, Class A-4, Class M-l and Class M-2 Notes (collectively,
the "Notes"); and
WHEREAS, pursuant to the terms of this Servicing Agreement, the
Servicer will service the Contracts set forth on the List of Contracts attached
hereto as Exhibit A-1, and the Mortgage Loans set forth on the Mortgage Loan
Schedule attached hereto as Exhibit A-2, directly or through one or more
Sub-Servicers;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of this Servicing Agreement,
except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in the Definitions
contained in Appendix A to the Indenture which is incorporated by reference
herein. All other capitalized terms used herein shall have the meanings
specified herein.
Section 1.02. Other Definitional Provisions.
(a) All terms defined in this Servicing Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Servicing Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Servicing Agreement or in any such certificate or other
document, and accounting terms partly defined in this Servicing Agreement or in
any such certificate or other document, to the extent not defined, shall have
the respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Servicing Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Servicing Agreement or in any such
certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Servicing Agreement shall refer to this Servicing
Agreement as a whole and not to any particular provision of this Servicing
Agreement; Section and Exhibit references contained in this Servicing Agreement
are references to Sections and Exhibits in or to this Servicing Agreement unless
otherwise specified; and the term "including" shall mean "including without
limitation".
(d) The definitions contained in this Servicing Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
Section 1.03. Interest Calculations. All calculations of interest
hereunder that are made in respect of the Principal Balance of an Asset shall be
made on the basis of a 360-day year consisting of twelve 30-day months,
notwithstanding the terms of the related Contract or Mortgage Note and Mortgage.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01. Covenants, Representations and Warranties Regarding the
Servicer. By its execution and delivery of this Agreement, Origen Servicing,
Inc., as initial Servicer, makes
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the following representations, warranties and covenants as of the Closing Date
on which the Trust relies in accepting the Assets and issuing the Certificates
and the Notes.
(A) Formation and Good Standing. The Servicer is a limited
liability company formed, validly existing and in good standing under the
laws of the jurisdiction of its formation and has the power to own its
assets and to transact the business in which it is currently engaged. The
Servicer is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction in which the character of the
business transacted by it or properties owned or leased by it requires
such qualification and in which the failure so to qualify would have a
material adverse effect on the business, properties, assets, or condition
(financial or other) of the Servicer.
(B) Authorization: Binding Obligations. The Servicer has the power
and authority to make, execute, deliver and perform this Agreement and all
of the transactions contemplated under this Agreement and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Agreement. When executed and delivered, this Agreement
will constitute the legal, valid and binding obligation of the Servicer
enforceable in accordance with its terms, except as enforcement of such
terms maybe limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally and by the availability of
equitable remedies.
(C) No Consent Required. The Servicer is not required to obtain
the consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement, except for such
consents, licenses, approvals and authorizations as have been obtained[;
provided, that Origen Financial L.L.C. will act as Sub-Servicer for Assets
secured by Manufactured Homes and/or Mortgaged Properties located in
jurisdictions where the Servicer does not hold the requisite licenses.]
(D) No Violations. The execution, delivery and performance by the
Servicer of this Agreement and the fulfillment of its terms will not
violate any provision of any existing law or regulation or any order or
decree of any court or the related Certificate of Incorporation or Bylaws
of the Servicer, or constitute a material breach of any mortgage,
indenture, contract or other agreement to which the Servicer is a party or
by which the Servicer may be bound; provided, that Origen Financial L.L.C.
will act as Sub-Servicer for Assets secured by Manufactured Homes and
Mortgaged Properties located in jurisdictions where the Servicer does not
hold the requisite licenses.
(E) Litigation. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending, or
to the knowledge of the Servicer threatened, against the Servicer or any
of its properties or with respect to this Agreement or the Notes which, if
adversely determined, would in the opinion of the Servicer have a material
adverse effect on the transactions contemplated by this Agreement.
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(F) Chief Executive Office. The chief executive office of the
Servicer is at 27777 Franklin Road, Suite 1700, Southfield, Michigan
48034.
(G) No Default. The Servicer is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or governmental agency, which default would
materially and adversely affect its condition (financial or other) or
operations or its properties or the consequences of which would materially
and adversely affect its performance hereunder. The Servicer is not in
default under any agreement involving financial obligations or on any
outstanding obligation which would materially adversely impact its
financial condition or operations or legal documents associated with the
transaction contemplated by this Agreement.
(H) No Amendments. The Servicer shall not extend or otherwise
amend the terms of any Contract, except in accordance with Section 3.07.
Section 2.02. Existence. The Issuer will keep in full effect its
existence, rights and franchises as a statutory trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other state or of the United States of
America, in which case the Issuer will keep in full effect its existence, rights
and franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Servicing Agreement.
Section 2.03. Enforcement of Representations and Warranties. The Servicer
shall cause the Originator to repurchase an Asset, at its Repurchase Price, not
later than the last day of the month prior to the month that is 90 days after
the day on which the Originator, the Seller, the Servicer or the Indenture
Trustee first discovers a breach of a representation or warranty of the
Originator or the Seller set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.5 or 3.6 of
the Asset Purchase Agreement that materially adversely affects the Issuer's, the
Noteholders' or the Certificateholders' interest in such Asset and which breach
has not been cured; provided, however, that (i) in the event that a party other
than the Originator first becomes aware of such breach, such discovering party
shall notify the Originator in writing within five Business Days of the date of
such discovery and (ii) with respect to any Asset incorrectly described on the
List of Contracts or Mortgage Loan Schedule, as applicable, with respect to
unpaid principal balance, which the Originator would otherwise be required to
repurchase pursuant to this Section, the Servicer may cause the Originator, in
lieu of repurchasing such Asset, to deliver to the Servicer for deposit in the
Collection Account no later than the first Determination Date that is 90 or more
days from the date of such discovery cash in an amount sufficient to cure such
deficiency or discrepancy. Upon receipt by the Indenture Trustee of a
certificate of a Servicing Officer in the form attached hereto as Exhibit B, any
such cash so deposited shall be distributed to Noteholders and
Certificateholders on the immediately following Payment Date as a collection of
principal on such Asset. Notwithstanding any other provision of this Agreement,
the obligation of the Servicer under this Section to enforce the Originator's
obligations pursuant to the Asset Purchase Agreement shall not terminate upon a
Service Transfer pursuant to Article VI. Notwithstanding the foregoing, the
Servicer shall cause the Originator to repurchase any Land-and-Home Contract or
Mortgage Loan, at such Asset's Repurchase Price, or substitute for it an
Eligible Substitute Asset as described in Section 2.03(b), if the Originator has
failed to deliver the related
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Land and Home Contract File or Trustee Mortgage Loan File to the Custodian
within 30 days of the Closing Date, subject to delays in delivery of recordable
documents. Each of the parties to this Agreement acknowledge that the provisions
of this Section 2.03 are an obligation solely of the Servicer and the Originator
and not of any other party to this Agreement. Notwithstanding the foregoing, in
the event the Backup Servicer succeeds to the servicing rights and
responsibilities as provided in Section 6.02 and/or Section 6.03, the Backup
Servicer shall have no obligation under this Section 2.03 other than to use its
commercially reasonable efforts to request and/or demand the Originator to
perform its obligations under this Section 2.03.
ARTICLE III
ADMINISTRATION AND SERVICING OF ASSETS
Section 3.01. Responsibility for Asset Administration. The Servicer shall
have the sole obligation to manage, administer, service and make collections on
the Assets and perform or cause to be performed all contractual and customary
undertakings of the holder of the Assets to the Obligor. At the written request
of the Servicer, accompanied by the form of power of attorney or other documents
being requested, the Indenture Trustee shall furnish to the Servicer any powers
of attorney and other documents necessary or appropriate to enable the Servicer
to carry out its servicing and administrative duties hereunder, and the
Indenture Trustee shall not be held responsible for any acts by the Servicer in
its uses of any such powers of attorney or other document. The Servicer shall
indemnify the Indenture Trustee for any reasonable costs, liabilities and
expenses (including reasonable attorneys' fees) incurred by the Indenture
Trustee in connection with the intentional or negligent misuse of such power of
attorney by the Servicer, as applicable. Notwithstanding anything contained
herein to the contrary, the Servicer shall not without the Indenture Trustee's
written consent (i) initiate any action, suit or proceeding solely under the
Indenture Trustee's name without indicating the Servicer's representative
capacity or (ii) knowingly cause the Indenture Trustee to be registered to do
business in any state, provided, however, that the preceding clause (i) shall
not apply to the initiation of actions relating to Assets that the Servicer is
servicing pursuant to its respective duties herein. The limitations of the
preceding clause shall not be construed to limit any duty or obligation imposed
on the Indenture Trustee under any other provision of this Agreement. Origen
Servicing, Inc. is hereby appointed the Servicer until such time as any Service
Transfer shall be effected under Article VI.
Section 3.02. Standard of Care. In managing, administering, servicing and
making collections on the Assets pursuant to this Agreement, the Servicer shall
exercise that degree of skill and care consistent with the same degree of skill
and care that the Servicer exercises with respect to similar contracts serviced
by the Servicer; provided, however, that (i) such degree of skill and care shall
be at least as favorable as the degree of skill and care generally applied by
servicers of manufactured housing installment sales contracts and residential
mortgage loans for institutional investors and (ii) notwithstanding the
foregoing, the Servicer shall not release or waive the right to collect the
unpaid balance on any Asset unless it makes the determination that acceptance of
the liquidation proceeds from the related Obligor would result in the Trust
receiving a greater amount of collections than the Net Liquidation Proceeds that
would result from repossessing or foreclosing and liquidating the related
Manufactured Home or Mortgaged Property.
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Section 3.03. Records. The Servicer shall, during the period it is
servicer hereunder, maintain such books of account and other records as will
enable the Indenture Trustee to determine the status of each Asset.
Section 3.04. Inspection: Electronic File.
(a) At all times during the term hereof, the Servicer shall afford the
Indenture Trustee and its authorized agents reasonable access during normal
business hours to the Servicer's records, which have not previously been
provided to the Trust, relating to the Assets and will cause its personnel to
assist in any examination of such records by the Indenture Trustee or its
authorized agents. The examination referred to in this Section will be conducted
in a manner which does not unreasonably interfere with the Servicer's normal
operations or customer or employee relations. Without otherwise limiting the
scope of the examination the Indenture Trustee may make, the Indenture Trustee
may, using generally accepted audit procedures, verify the status of each Asset
and review the Electronic Ledger and records relating thereto for conformity to
Monthly Reports prepared pursuant to Section 3.26 of the Indenture and
compliance with the standards represented to exist as to each Asset in this
Agreement.
(b) At all times during the term hereof, the Servicer shall keep
available a copy of the List of Contracts and the Mortgage Loan Schedule at its
principal executive office for inspection by Noteholders and Certificateholders.
(c) On or before the fourth Business Day prior to each Payment Date, the
Servicer shall determine the Amount Available for such Payment Date to be
remitted to the Note Payment Account and shall provide to the Indenture Trustee
and the Backup Servicer an electronic file (the "Electronic File") setting forth
such amount and any other information necessary for the Indenture Trustee to
perform the calculations required hereunder and prepare the Monthly Report. The
Indenture Trustee will be entitled to rely on information supplied by the
Servicer without independent verification.
Section 3.05. Collection Account.
(a) On or before the Closing Date, the Servicer shall establish the
Collection Account with [______________________________], which must be an
Eligible Account [and notify the Backup Servicer of the location of the
Collection Account]. The Collection Account shall be entitled "Origen Servicing
for the benefit of [______________________________] as Indenture Trustee for the
benefit of holders of Origen Manufactured Housing Contract Notes, Series
20__-__." The Servicer shall pay into the Collection Account as promptly as
practicable (not later than the second Business Day) following receipt thereof:
(i) all payments received after the Cut-Off Date on account of
principal on the Assets and all Principal Prepayments collected after the
Cut-Off Date;
(ii) all payments received after the Cut-Off Date on account of
interest on the Assets;
(iii) all Net Liquidation Proceeds;
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(iv) all Insurance Proceeds unless to be used to directly offset
the cost of repairing the related property;
(v) any amounts payable in connection with the repurchase of any
Asset pursuant to Section 2.03 hereof or Section 3.7 of the Asset Purchase
Agreement; and
(vi) any other amount required to be deposited in the Collection
Account pursuant to this Agreement;
provided, however, that with respect to each Due Period, the Servicer shall be
permitted to retain the Monthly Servicing Fee for the related Payment Date from
payments in respect of interest on the Assets in accordance with Section 3.06
hereof. The foregoing requirements respecting deposits to the Collection Account
are exclusive, it being understood that, without limiting the generality of the
foregoing, the Servicer need not deposit in the Collection Account amounts
representing late payment fees, assumption fees, extension fees or escrow
deposits payable by Obligors, which amounts shall be property of the Servicer.
The Servicer agrees that all amounts paid into the Collection Account under this
Agreement shall be held in trust for the Indenture Trustee, the Noteholders and
the Certificateholders until payment or withdrawal of any such amounts is
authorized under this Agreement.
If the Servicer so directs, the institution maintaining the
Collection Account shall, in the name of the Indenture Trustee in its capacity
as such, invest the amounts in the Collection Account in Eligible Investments
that mature not later than one Business Day prior to the next succeeding Payment
Date. All income and gain from such investments shall be payable to the
Servicer. An amount equal to any net loss on such investments shall be deposited
in the Collection Account by the Servicer out of its own funds immediately as
realized[; provided that if the Backup Servicer succeeds to the servicing rights
and responsibilities as provided in Section 6.02 and/or Section 6.03, the Backup
Servicer shall have no obligation or responsibility for any losses occasioned by
or arising from the prior Servicer's investments]. The Indenture Trustee shall
in no way be responsible or liable for losses on amounts invested in accordance
with the provisions hereof. Funds in the Collection Account not so invested must
be insured to the extent of the maximum amount insurable by the Federal Deposit
Insurance Corporation.
(b) If at anytime the Servicer receives notice (from each Rating Agency,
the Indenture Trustee or otherwise) that the Collection Account has ceased to be
an Eligible Account, the Servicer must, as soon as practicable but in no event
later than 5 Business Days of the Servicer's receipt of such notice, transfer
the Collection Account and all funds and Eligible Investments therein to an
Eligible Account. Following any such transfer, the Servicer must notify each
Rating Agency and the Indenture Trustee of the location of the Collection
Account.
Section 3.06. Permitted Withdrawals. The Servicer may, from time to time
as provided herein, make withdrawals from the Collection Account of amounts
deposited in said account pursuant to Section 3.05 that are attributable to the
Assets for the following purposes:
(a) to remit the Amount Available to the Indenture Trustee for deposit
in the Note Payment Account to make payments in the amounts and in the manner
provided for in Section 8.02 of the Indenture;
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(b) to pay to the Originator with respect to each Asset or property
acquired in respect thereof that has been repurchased or replaced pursuant to
Section 2.03 hereof or Section 3.7 of the Asset Purchase Agreement, all amounts
received thereon and not required to be distributed to Noteholders or
Certificateholders as of the date on which the related Principal Balance or
Repurchase Price is determined;
(c) to reimburse the Servicer out of Liquidation Proceeds for
Liquidation Expenses incurred by it, to the extent such reimbursement is
permitted pursuant to Section 3.09, and to reimburse the Servicer as provided in
Sections 3.08, 3.11, 3.13 and 6.02;
(d) to withdraw any amount deposited in the Collection Account that was
not required to be deposited therein;
(e) to make any rebates or adjustments deemed necessary by the Servicer
pursuant to Section 3.07(d); or
(f) to reimburse the Servicer (1) for any accrued unpaid Monthly
Servicing Fees and (2) for unreimbursed Servicing Advances, including
Nonrecoverable Advances, to the extent not otherwise retained. The Servicer's
right to reimbursement for Servicing Advances that are not Nonrecoverable
Advances shall be limited to late collections on the related Asset, including
Liquidation Proceeds, Insurance Proceeds and such other amounts as maybe
collected by the Servicer from the related Obligor or otherwise relating to the
Asset in respect of which such reimbursed amounts are owed. Except with respect
to Nonrecoverable Advances, the Servicer's right to reimbursement for
unreimbursed Servicing Advances shall be limited to late collections of interest
on any Asset and to Liquidation Proceeds and Insurance Proceeds on related
Obligors. In addition, expenses incurred by the Servicer in connection with a
defaulted Asset which is subsequently reinstated, worked out or cured, shall be
reimbursable to the Servicer as a Nonrecoverable Advance at the time of the
cure.
Since, in connection with withdrawals pursuant to clause (b), the
Originator's entitlement thereto is limited to collections or other recoveries
on the related Asset, the Servicer shall keep and maintain separate accounting,
on a Asset by Asset basis, for the purpose of justifying any withdrawal from the
Collection Account pursuant to such clause.
Two Business Days before each Payment Date, no later than 1:00 p.m.
New York time, the Indenture Trustee shall notify the Servicer of the Interest
Deficiency Remedy Amount, if any, payable on the Notes for such Payment Date.
One Business Day before each Payment Date, no later than 1:00 p.m. New York
time, the Servicer shall remit to the Indenture Trustee for deposit into the
Note Payment Account (i) the Amount Available and (ii) from Amounts Held for
Future Distribution, the Interest Deficiency Remedy Amount for such Payment
Date.
Section 3.07. Enforcement.
(a) The Servicer shall, consistent with customary servicing procedures
and the terms of this Agreement, act with respect to the Assets in such manner
as, in the Servicer's reasonable judgment, will maximize the receipt of
principal and interest on such Assets and Liquidation Proceeds with respect to
Liquidated Assets.
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(b) The Servicer may sue to enforce, initiate a replevin action, or
collect upon Assets, in its own name, if possible, or as agent for the Trust.
(c) The Servicer shall exercise any rights of recourse against third
persons that exist with respect to any Asset in accordance with the Servicer's
usual practice. In exercising recourse rights, the Servicer is authorized on the
Issuer's and the Indenture Trustee's behalf to reassign the Asset or to resell
the related Manufactured Home or Mortgaged Property to the Person against whom
recourse exists at the price set forth in the document creating the recourse.
(d) The Servicer may grant to the Obligor on any Asset any rebate,
refund or adjustment out of the Collection Account that the Servicer in good
faith believes is required because of prepayment in full of the Asset. The
Servicer will not permit any rescission or cancellation of any Asset, except as
required by applicable law or regulation or upon the order of any court or other
governmental authority asserting jurisdiction in a suit, claim or complaint
involving the Asset.
(e) The Servicer may, consistent with its customary servicing procedures
and consistent with Section 3.02, grant to the Obligor on any Asset an extension
of payments due under such Asset; provided that, no such extension may extend
beyond the final scheduled payment date of the Asset with the latest maturity,
and no more than three extensions for any one Asset of payments under an Asset
may be granted in any twelve-month period. Notwithstanding the foregoing, in
connection with an Asset that is in default or for which default is imminent,
the Servicer may, consistent with the servicing standard described in Section
3.01, waive, modify or vary any term of that Asset (including modifications that
change the Asset Rate, forgive the payment of principal or interest or extend
the final maturity date of that Asset), accept payment from the related Obligor
of an amount less than the Principal Balance in final satisfaction of that
Asset, or consent to the postponement of strict compliance with any such term or
otherwise grant the indulgence to any Obligor if in the Servicer's determination
such waiver, modification, postponement or indulgence is not materially adverse
to the interests of the Noteholders (taking into account any estimated loss that
might result absent such action). However, the Servicer shall not extend the
maturity of any Asset past the date on which the final payment is due on the
latest maturing Asset as of the related Cut-off Date.
(f) The Servicer may enforce any due-on-sale clause in an Asset if such
enforcement is called for under its then current servicing policies for
obligations similar to the Assets; provided that such enforcement is permitted
by applicable law and will not adversely affect any applicable insurance policy.
If an assumption of an Asset is permitted by the Servicer upon conveyance of the
related Manufactured Home or Mortgaged Property, the Servicer shall use its best
efforts to obtain an assumption agreement in connection therewith and add such
assumption agreement to the related Asset File.
Section 3.08. Indenture Trustee to Cooperate.
(a) Upon payment in full of any Asset, the Servicer shall notify the
Indenture Trustee, the Originator and the Seller on the next succeeding Payment
Date by certification of a Servicing Officer (which certification shall include
a statement to the effect that all amounts received in connection with such
payments which are required to be deposited in the Collection Account
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pursuant to Section 3.05 have been so deposited). The Servicer is authorized to
execute an instrument in satisfaction of such Asset and to do such other acts
and execute such other documents as the Servicer deems necessary to discharge
the Obligor thereunder and eliminate the lien on the related real estate and
collateral. The Servicer shall determine when an Asset has been paid in full; to
the extent that insufficient payments are received on an Asset but are otherwise
incorrectly credited by the Servicer as prepaid or paid in full and satisfied,
the shortfall shall be paid by the Servicer out of its own funds; provided that
the Servicer may reimburse itself for such shortfall payment from the Collection
Account if the Servicer corrects the error and receives amounts in respect of
such shortfall payment from future collections with respect to such Asset.
(b) From time to time as appropriate for servicing and foreclosure in
connection with any Land-and-Home Contract or Mortgage Loan, the Indenture
Trustee shall, upon written request of a Servicing Officer and delivery to the
Indenture Trustee of a receipt signed by such Servicing Officer, at the expense
of the Servicer, cause the original Land-and-Home Contract or Mortgage Loan and
the related Land-and-Home Contract File or Trustee Mortgage Loan File to be
released to the Servicer and shall execute such documents as the Servicer shall
deem necessary to the prosecution of any such proceedings. The Indenture Trustee
shall stamp the face of each such Land-and-Home Contract or Mortgage Loan to be
released to the Servicer with a notation that the Land-and-Home Contract or
Mortgage Loan has been assigned to the Indenture Trustee. Upon request of a
Servicing Officer, the Indenture Trustee shall perform such other acts as
reasonably requested by the Servicer and otherwise cooperate with the Servicer
in enforcement of the Noteholders' and the Certificateholders' rights and
remedies with respect to Assets. The Indenture Trustee shall not be liable for
the performance of any such acts at the request of the Servicer.
(c) The Servicer's receipt of a Land-and-Home Contract or Mortgage Loan
and/or Land-and-Home Contract File or Trustee Mortgage Loan File shall obligate
the Servicer to return the original Land-and-Home Contract or Mortgage Loan and
the related Land-and-Home Contract File or Trustee Mortgage Loan File to the
Indenture Trustee when its need by the Servicer has ceased unless the Asset
shall be liquidated or repurchased or replaced as described in Section 2.03.
Section 3.09. Costs and Expenses. All costs and expenses incurred by the
Servicer in carrying out its duties hereunder, including all fees and expenses
incurred in connection with the enforcement of Assets (including enforcement of
defaulted Assets and repossessions of Manufactured Homes and Mortgaged
Properties securing such Assets) shall be paid by the Servicer and the Servicer
shall not be entitled to reimbursement hereunder, except to the extent
specifically provided herein. Furthermore, the Servicer shall be reimbursed out
of the Liquidation Proceeds of a Liquidated Asset for Liquidation Expenses
incurred by it and if such Liquidation Expenses are deemed Nonrecoverable
Advances, the Servicer may reimburse itself as provided in Section 3.06(f). The
Servicer shall not incur such Liquidation Expenses unless it determines in its
good faith business judgment that incurring such expenses will increase the Net
Liquidation Proceeds on the related Asset.
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Section 3.10. Maintenance of Insurance.
(a) Except as otherwise provided in subsection (b) of this Section 3.10,
the Servicer shall cause to be maintained with respect to each Asset 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 or Mortgaged Property is
located and in an amount which is not less than the maximum insurable value of
such Manufactured Home or Mortgaged Property or the principal balance due from
the Obligor on the related Asset, whichever is less; provided, however, that the
amount of coverage provided by each Hazard Insurance Policy shall be sufficient
to avoid the application of any co-insurance clause contained therein; and
provided, further, that such Hazard Insurance Policies may provide for customary
deductible amounts. With respect to any Asset, the Servicer shall cause the
Originator to obtain (i) a statement from the Obligor's insurance agent or
through other information sources that the Manufactured Home or Mortgaged
Property was, at the time of origination of the Asset, not in a federally
designated special flood hazard area, or (ii) evidence that, at the time of
origination, flood insurance was in effect, which coverage was at least equal to
the minimum amount specified in the preceding sentence or such lesser amount as
may be available under the federal flood insurance program. Each Hazard
Insurance Policy caused to be maintained by the Servicer shall contain a
standard loss payee clause in favor of the Servicer and its successors and
assigns. If any Obligor is in default in the payment of premiums on its Hazard
Insurance Policy or Policies, the Servicer shall force place coverage and pay
such premiums out of its own funds and may separately add such premium to the
Obligor's obligation as provided by the Asset, but shall not add such premium to
the remaining principal balance of the Asset. If the Obligor does not reimburse
the Servicer for payment of such premiums and the related Asset is liquidated
after a default, the Servicer shall be reimbursed for its payment of such
premiums out of the related Liquidation Proceeds, and if such advance for
insurance premiums is deemed by the Servicer to be nonrecoverable in its
reasonable opinion, the Servicer may reimburse itself from the Collection
Account for such Nonrecoverable Advance.
(b) The Servicer may, in lieu of causing individual Hazard Insurance
Policies to be maintained with respect to each Manufactured Home or Mortgaged
Property pursuant to subsection (a) of this Section 3.10, and shall, to the
extent that the related Asset does not require the Obligor to maintain a Hazard
Insurance Policy with respect to the related Manufactured Home or Mortgaged
Property, maintain one or more blanket insurance policies covering losses on the
Obligor's interest in the Assets resulting from the absence or insufficiency of
individual Hazard Insurance Policies. Any such blanket policy shall be
substantially in the form and in the amount carried by the Servicer as of the
date of this Agreement. The Servicer shall pay the premium for such policy on
the basis described therein and shall deposit into the Collection Account from
its own funds any deductible amount with respect to claims under such blanket
insurance policy relating to the Assets. The Servicer shall not, however, be
required to deposit any deductible amount with respect to claims under
individual Hazard Insurance Policies maintained pursuant to subsection (a) of
this Section. If the insurer under such blanket insurance policy shall cease to
be acceptable to the Servicer, the Servicer shall exercise its best reasonable
efforts to obtain from another insurer a replacement policy comparable to such
policy.
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(c) With respect to each Manufactured Home that has been repossessed and
each Mortgaged Property that has been foreclosed or otherwise comparably
converted into a REO Property in connection with a defaulted Asset, the Servicer
shall either (i) maintain one or more Hazard Insurance Policies thereon or (ii)
self-insure such Manufactured Homes or Mortgaged Properties and deposit into the
Collection Account from its own funds any losses caused by damage to such
Manufactured Home or Mortgaged Property 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 and residential mortgage loans having an aggregate principal
amount of $ 100,000,000 or more and which are generally regarded as servicers
acceptable to institutional investors.
(e) [The Servicer must maintain a Primary Mortgage Insurance Policy in
full force and effect on each Mortgage Loan, if any, which is identified in the
Asset Purchase Agreement as being covered by a Primary Mortgage Insurance
Policy. Any such Primary Mortgage Insurance Policy must insure the portion of
the unpaid principal balance of the related Mortgage Loan that exceeds 75% of
the value of the related Mortgaged Property (as set forth in the appraisal
obtained in connection with origination of the Mortgage Loan) (the Mortgaged
Property's "Initial Value") unless such Primary Mortgage Insurance coverage has
been waived in writing by the Depositor at the time it purchases the Mortgage
Loan or such Primary Mortgage Insurance is canceled under the circumstances
described below. If a covered Mortgage Loan provides for negative amortization
or the potential for negative amortization, the Primary Mortgage Insurance
Policy must also insure any increase in the unpaid principal balance of the
Mortgage Loan from the original principal balance of the related Mortgage Note.
In the event that the rating assigned by any Rating Agency for any of the Notes
to the claims-paying ability of any related Mortgage Insurer is reduced
subsequent to the issuance of the Notes, the Servicer will use its best efforts
to replace each Primary Mortgage Insurance Policy issued by the downgraded
Mortgage Insurer with a new Primary Mortgage Insurance Policy issued by an
insurer whose claims-paying ability is acceptable to the Depositor. The premium
for any replacement policy shall not exceed the premium for any replaced policy.
The Servicer may cancel the Primary Mortgage Insurance Policy
maintained with respect to any Mortgage Loan at the related Mortgagor's request
if the following conditions are met:
(1) The current Mortgage Loan-to-Value Ratio of the mortgage
Loan must be 80% or less. The current Mortgage Loan-to-Value Ratio
must be calculated by dividing the unpaid principal balance of the
Mortgage Loan by the Initial Value of the related Mortgaged
Property;
(2) The Mortgage Loan may not have been 30 days or more
delinquent at any time within the preceding twelve months; and
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(3) There may not have been any other default under the
terms of the Mortgage Loan at any time during the preceding twelve
months; provided, however, that the Servicer shall cancel or release
any Primary Mortgage Insurance Policy maintained with respect to any
Mortgage Loan to the extent required under applicable law.]
(f) [The Servicer must take all steps necessary to ensure the payment by
each Mortgage Insurer of the maximum benefits available under the terms of the
related Primary Mortgage Insurance Policy. The Servicer must work diligently
with the Mortgage Insurer to determine whether such insurer will settle a claim
under a Primary Mortgage Insurance Policy by taking title to the related
Mortgaged Property or in some other manner. Upon receipt of any proceeds of a
Primary Mortgage Insurance Policy, the Servicer must deposit such proceeds into
the Collection Account in accordance with Section 3.05.]
Section 3.11. Repossession. Consistently with the standard of care
specified in Section 3.02, the Servicer shall commence procedures for the
repossession of any Manufactured Home or the foreclosure upon any Mortgaged
Property or take such other steps that in the Servicer's reasonable judgment
will maximize the receipt of principal and interest or Net Liquidation Proceeds
with respect to a delinquent Asset secured by such Manufactured Home or
Mortgaged Property (which may include retitling or filing a recorded assignment
of the Mortgage) subject to the requirements of the applicable state and federal
law. Notwithstanding the foregoing provisions of this Section 3.11 or any other
provision of this Agreement, with respect to any Asset as to which the Servicer
has received actual notice of, or has actual knowledge of, the presence of any
toxic or hazardous substance on the related Mortgaged Property, the Servicer
shall not, on behalf of the Indenture Trustee, either (i) obtain title to such
Mortgaged Property as a result of or in lieu of foreclosure or otherwise or (ii)
otherwise acquire possession of, or take any other action with respect to, such
Mortgaged Property, if, as a result of any such action, the Indenture Trustee,
the Trust Estate or the Noteholders would be considered to hold title to, to be
a "mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Servicer has also previously determined, based
on its reasonable judgment and a report prepared by a Person who regularly
conducts environmental audits using customary industry standards, that:
(1) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best economic
interest of the Indenture Trustee to take such actions as are
necessary to bring the Mortgaged Property into compliance therewith;
and
(2) there are no circumstances present at such Mortgaged
Property relating to the use, management or disposal of any
hazardous substances, hazardous materials, hazardous wastes, or
petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required
under any federal, state or local law or regulation, or that if any
such materials are present for which such action could be required,
that it would be in the best economic interest of the Indenture
Trustee to take such actions with respect to the affected Mortgaged
Property.
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The cost of the environmental audit report contemplated by this
Section 3.11 shall be advanced by the Servicer as Servicing Advances, subject to
the Servicer's right to be reimbursed therefor from the Collection Account as
provided in Section 3.06(c) or 3.06(f), as appropriate, such
right of reimbursement being prior to the rights of Noteholders to receive any
amount in the Collection Account received in respect of the affected Asset or
other Assets.
If the Servicer determines, as described above, that it is in the
best economic interest of the Indenture Trustee to take such actions as are
necessary to bring any such Mortgaged Property into compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials, hazardous
wastes or petroleum-based materials affecting any such Mortgaged Property, then
the Servicer shall take such action as it deems to be in the best economic
interest of the Indenture Trustee; provided, however, that the Servicer shall
not proceed with foreclosure or acceptance of a deed in lieu of foreclosure if
the estimated costs of the environmental clean up, as estimated in the
environmental audit report, together with the Servicing Advances made by the
Servicer and the estimated costs of foreclosure or acceptance of a deed in lieu
of foreclosure exceeds the estimated value of the Mortgaged Property. The cost
of any such compliance, containment, cleanup or remediation shall be advanced by
the Servicer, subject to the Servicer's right to be reimbursed therefor from the
Collection Account as provided in Section 3.06(c) or 3.06(f), as appropriate,
such right of reimbursement being prior to the rights of Noteholders to receive
any amount in the Collection Account received in respect of the affected
Contract or other Contracts.
In connection with such foreclosure or other conversion, the
Servicer shall follow such practices and procedures as it shall deem necessary
or advisable and as shall be consistent with Section 3.02. In the event that
title to any Mortgaged Property is acquired in foreclosure or by deed in lieu of
foreclosure, the deed or certificate of sale shall be issued to the Indenture
Trustee, as Indenture Trustee, or, at its election, to its nominee on behalf of
the Indenture Trustee, as Indenture Trustee.
Section 3.12. Subservicing Arrangements. The Servicer may arrange for the
subservicing of any Asset by a Subservicer pursuant to a subservicing agreement;
provided, however, that such subservicing arrangement and the terms of the
related subservicing agreement must provide for the servicing of such Assets in
a manner consistent with the servicing arrangements contemplated hereunder.
Unless the context otherwise requires, references in this Agreement to actions
taken or to be taken by the Servicer in servicing the Assets include actions
taken or to be taken by a Subservicer on behalf of the Servicer. Notwithstanding
the provisions of any subservicing agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Servicer and a
Subservicer or reference to actions taken through a Subservicer or otherwise,
the Servicer shall remain obligated and liable to the Issuer, the Indenture
Trustee, the Originator, the Seller, the Noteholders and the Certificateholders
for the servicing and administration of the Assets in accordance with the
provisions of this Agreement without diminution of such obligation or liability
by virtue of such subservicing agreements or arrangements or by virtue of
indemnification from the Subservicer and to the same extent and under the same
terms and conditions as if the Servicer alone were servicing and administering
the Assets. All actions of each Subservicer performed pursuant to the related
subservicing agreement shall be performed as an agent of the Servicer with the
same force and effect as if
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performed directly by the Servicer. Origen Financial L.L.C. is hereby deemed an
acceptable Subservicer for purposes of this Agreement.
For purposes of this Agreement, the Servicer shall be deemed to have
received any collections, recoveries or payments with respect to the Assets that
are received by a Subservicer regardless of whether such payments are remitted
by the Subservicer to the Servicer.
Section 3.13. Retitling; Security Interests.
(a) If, at any time, a Service Transfer has occurred and the new
Servicer is unable to repossess or foreclose upon a Manufactured Home because
the title document for such Manufactured Home does not show such Servicer or the
Indenture Trustee as the holder of the first priority security interest in the
Manufactured Home, such Servicer shall take all necessary steps to apply for a
replacement title document showing it or the Indenture Trustee as the secured
party; provided that the new Servicer shall be reimbursed by the Trust for all
reasonable expenses in connection with its responsibilities under this Section
3.13.
(b) In order to facilitate the Servicer's actions, as described in
subsection (a) of this section, Origen Servicing, Inc. will provide the Servicer
with any necessary power of attorney permitting it to retitle the Manufactured
Home.
(c) If the Servicer is still unable to retitle the Manufactured Home,
Origen Servicing, Inc. will take all actions necessary to act with the Servicer
to initiate replevin action upon the Manufactured Home, including, as
appropriate, the filing of any UCC-1 or UCC-2 financing statements necessary to
perfect the security interest in any Manufactured Home that constitutes a
fixture under the laws of the jurisdiction in which it is located and all
actions necessary to perfect the security interest in any Manufactured Home that
is considered or classified as part of the real estate on which it is located
under the laws of the jurisdiction in which it is located.
Section 3.14. Payment of Taxes. If the Servicer becomes aware of the
nonpayment by an Obligor of a real or personal property tax or other tax or
charge which may result in a lien upon a Manufactured Home or Mortgaged Property
prior to, or equal to or coordinate with, the lien of the related Asset, the
Servicer, consistent with Section 3.02, shall advance, but only to the extent
that the Servicer deems, in its sole judgement, such advance recoverable, such
taxes or charges to avoid the attachment of any such lien. If the Servicer shall
have paid any such real or personal property tax or other tax or charge directly
on behalf of an Obligor, the Servicer may separately add such amount to the
Obligor's obligation as provided by the Asset, but, for the purposes of this
Agreement, may not add such amount to the remaining principal balance of the
Asset. If the Servicer shall have repossessed a Manufactured Home or Mortgaged
Property on behalf of the Noteholders, the Certificateholders and the Indenture
Trustee, the Servicer shall advance, but only to the extent that the Servicer,
in its sole judgment, deems such advance recoverable, the amount of any such tax
or charge arising during the time such Manufactured Home is in the Servicer's
possession or title to the Mortgaged Property is in the name of the Servicer (or
any Person acting on behalf of the Servicer), unless the Servicer is contesting
in good faith such tax or charge or the validity of the claimed lien on such
Manufactured Home or Mortgaged Property. If the Obligor does not reimburse the
Servicer for payment of such taxes or charges pursuant to this Section 3.14 and
the related Asset is liquidated after a default, the
15
Servicer shall be reimbursed for its payment of such taxes or charges out of the
related Liquidation Proceeds. If Liquidation Proceeds are insufficient to
reimburse the Servicer for any such premiums, the amount of such insufficiency
shall constitute, and be reimbursable to the Servicer as, a Nonrecoverable
Advance.
Section 3.15. Statement as to Compliance.
Not later than March 15th of each calendar year commencing in 20__,
the Servicer will deliver to the Indenture Trustee and the Depositor an
Officers' Certificate (upon which the Indenture Trustee can conclusively rely in
connection with its obligations under Section 7.05 of the Indenture) stating, as
to each signatory thereof, that (i) a review of the activities of the Servicer
during the preceding calendar year and of performance under this Servicing
Agreement has been made under such officer's supervision and (ii) to the best of
such officer's knowledge, based on such review, the Servicer has fulfilled all
of its obligations under this Servicing Agreement throughout such year, or, if
there has been a default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status thereof.
Copies of any such statement shall be provided by the Indenture Trustee to any
Noteholder and to any Person identified to the Indenture Trustee as a
prospective transferee of a Note, upon request at the expense of the requesting
party, provided such statement is delivered by the Servicer to the Indenture
Trustee.
Section 3.16. Independent Public Accountants' Servicing Report.
Not later than March [15th] of each calendar year commencing in
20__, the Servicer, at its expense, shall cause a nationally recognized firm of
independent certified public accountants to furnish to the Servicer a report
stating that (i) it has obtained a letter of representation regarding certain
matters from the management of the Servicer which includes an assertion that the
Servicer has complied with certain minimum servicing standards, identified in
the Uniform Single Attestation Program for Mortgage Bankers established by the
Mortgage Bankers Association of America, with respect to the servicing of
manufactured housing installment sales contracts and installment loan agreements
during the most recently completed calendar year and (ii) on the basis of an
examination conducted by such firm in accordance with standards established by
the American Institute of Certified Public Accountants, such representation is
fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. In rendering its report such firm may
rely, as to matters relating to the direct servicing of manufactured housing
installment sales contracts and installment loan agreements by Sub-Servicers,
upon comparable reports of firms of independent certified public accountants
rendered on the basis of examinations conducted in accordance with the same
standards (rendered within one year of such report) with respect to those
Sub-Servicers. Immediately upon receipt of such report, the Servicer shall, at
its own expense, furnish a copy of such report to the Indenture Trustee and each
Rating Agency. Copies of such statement shall be provided by the Indenture
Trustee to any Noteholder upon request, provided that such statement is
delivered by the Servicer to the Indenture Trustee.
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Section 3.17. Optional Redemption.
(a) The Servicer shall have the option to purchase all outstanding
Assets on any Payment Date on or after the Payment Date on which the Pool
Principal Balance is less than or equal to 20% of the Cut-off Date Pool Balance.
The aggregate redemption price for the Assets will be equal to the greater of
(a) the sum of: (i)100% of the Principal Balance of each Asset, other than any
Asset as to which the related Manufactured Home has been repossessed or as to
which the related Mortgaged Property has been converted into an REO Property,
and in either case whose fair market value is included in clause (ii) hereof,
and (ii) the fair market value of any acquired property, as determined by the
Servicer, and (b) the aggregate fair market value of all assets of the Trust
Estate (as determined by the Servicer), in each case plus accrued and unpaid
Interest Payment Amounts on each Class of Notes at the applicable Note Rate (the
"Redemption Price"). If the determination of the fair market value of the Assets
shall be required to be made by the Servicer as provided above, (A) such
appraisal shall be obtained at no expense to the Indenture Trustee and (B) the
Indenture Trustee may conclusively rely on, and shall be protected in relying
on, such appraisal.
(b) In order to exercise the foregoing option, the Servicer shall
provide written notice of its exercise of such option to the Indenture Trustee
and the Owner Trustee at least 30 days prior to its exercise. In addition, the
Servicer shall, not less than one Business Day prior to the proposed Payment
Date on which such redemption is to be made, deposit the Redemption Price
specified in (a) above with the Indenture Trustee.
ARTICLE IV
SERVICING CERTIFICATE
Section 4.01. Electronic Files.
(a) No later than 1:00 p.m. on the fourth Business Day prior to each
Payment Date, the Servicer shall deliver to the Indenture Trustee [and the
Backup Servicer], the Electronic File referred to in Section 3.04(c).
(b) With the delivery of each Electronic File pursuant to Section 4.01
(a), the Servicer shall be deemed to certify as to the accuracy of the
Electronic File and that no Servicer Event of Default or event that with notice
or lapse of time or both would become an Servicer Event of Default has occurred,
or if such event has occurred and is continuing, specifying the event and its
status.
Section 4.02. Exchange Act Reporting.
(a) The Indenture Trustee and the Servicer shall reasonably cooperate
with the Issuer and the Administrator in connection with the Trust's satisfying
the reporting requirements under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
(b) Reserved.
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(c) The Indenture Trustee shall sign a certification (in the form
attached hereto as Exhibit C-2) for the benefit of the Administrator and its
officers, directors and Affiliates regarding certain aspects of the
Certification (provided, however, that the Indenture Trustee shall not undertake
an analysis of the accountant's report attached as an exhibit to the Form 10-K).
The Indenture Trustee's certification shall be delivered to the Administrator by
no later than March 20th of each year (or if such day is not a Business Day, the
immediately preceding Business Day).
(d) The Servicer shall sign a certification (in the form attached hereto
as Exhibit C-3) for the benefit of the Administrator and its officers, directors
and Affiliates regarding certain aspects of the Certification relating to
Electronic Files delivered by the Servicer pursuant to this Agreement. The
Servicer's certification shall be delivered to the Administrator by no later
than March 20th of each year (or if such day is not a Business Day, the
immediately preceding Business Day).
In addition, the Servicer shall indemnify and hold harmless the
Administrator, the Depositor, the Indenture Trustee and their respective
officers, directors and Affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon a
breach of such Servicer's obligations under this Section 4.02(d) or such
Servicer's negligence, bad faith or willful misconduct in connection therewith.
The Administrator shall indemnify and hold harmless the Servicer and its
officers, directors and Affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon a
breach of the Administrator's obligations under this Section 4.02 or the
Administrator's negligence, bad faith or willful misconduct in connection
therewith. If the indemnification provided for herein is unavailable or
insufficient to hold harmless the Administrator or the Servicer, as applicable,
then the other party, in connection with a breach of its respective obligations
under this Section 4.02 with respect to the Administrator or Section 4.02(d)
with respect to the Servicer or its respective negligence, bad faith or willful
misconduct in connection therewith, agrees that it shall contribute to the
amount paid or payable by the other party as a result of the losses, claims,
damages or liabilities of the other party in such proportion as is appropriate
to reflect the relative fault and the relative benefit of the Administrator on
the one hand and the Servicer on the other.
(e) To the extent that, following the Closing Date, the Administrator
certifies to the Indenture Trustee and the Servicer that reports and
certifications differing from those required under this Section 4.02 comply with
the reporting requirements under the Exchange Act, each of the Servicer and the
Indenture Trustee hereby agrees that it will reasonably cooperate to amend the
provisions of this Section 4.02 (in accordance with Section 7.01) in order to
comply with such amended reporting requirements and such amendment of this
Section 4.02. Any such amendment may result in the reduction of the reports
filed by the Administrator under the Exchange Act. Notwithstanding the
foregoing, neither the Indenture Trustee nor the Servicer shall be obligated to
enter into any amendment pursuant to this Section that adversely affects its
rights, protections, obligations and immunities under this Servicing Agreement.
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ARTICLE V
THE SERVICER [AND THE BACKUP SERVICER]
Section 5.01. Liability of the Servicer [and the Backup Servicer]. The
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by the Servicer herein.
[The Backup Servicer shall be liable in accordance herewith only to the extent
of the obligations specifically imposed upon and undertaken herein by the Backup
Servicer.]
Section 5.02. Merger or Consolidation of or Assumption of the Obligations
of the Servicer [and the Backup Servicer]. Any Person into which the Servicer
[or the Backup Servicer] maybe merged or consolidated, or any Person resulting
from any merger, conversion or consolidation to which the Servicer [or the
Backup Servicer] shall be a party, or any Person succeeding to the business of
the Servicer [or the Backup Servicer], shall be the successor of the Servicer
[or the Backup Servicer], as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however, that
the successor Servicer shall satisfy all the requirements of an Eligible
Servicer.
Section 5.03. Limitation on Liability of the Servicer and Others. Neither
the Servicer[, the Backup Servicer] nor any of the directors or officers or
employees or agents of the Servicer [or the Backup Servicer] shall be under any
liability to the Trust, the Noteholders or the Certificateholders for any action
taken or for refraining from the taking of any action by the Servicer [or the
Backup Servicer] in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the Servicer
[or the Backup Servicer] or any such Person against any liability which would
otherwise be imposed by reason of its willful misfeasance, bad faith or
negligence in the performance of duties of the Servicer [or the Backup Servicer]
or by reason of its reckless disregard of its obligations and duties of the
Servicer [or the Backup Servicer] hereunder. The Servicer, [the Backup Servicer]
and any director or officer or employee or agent of the Servicer [or the Backup
Servicer] may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Servicer, [the Backup Servicer] and any director or officer or
employee or agent of the Servicer or [the Backup Servicer] shall be indemnified
by the Trust and held harmless against any loss, liability or expense incurred
in connection with any legal action relating to this Agreement, the Notes or the
Certificates, other than any loss, liability or expense related to any specific
Asset or Assets (except as any such loss, liability or expense shall be
otherwise reimbursable pursuant to this Agreement) and any loss, liability or
expense incurred by reason of its willful misfeasance, bad faith or negligence
in the performance of duties hereunder or by reason of its reckless disregard of
obligations and duties hereunder; and such indemnity/hold harmless amounts as
provided for in this sentence shall be payable only pursuant to Section 8.02
(xi) of the Indenture after payments to the Noteholders for the related Payment
Date. The Servicer [or the Backup Servicer] may undertake any such action which
it may deem necessary or desirable in respect of this Agreement, and the rights
and duties of the parties hereto and the interests of the Noteholders or the
Certificateholders hereunder. In such event, the reasonable legal expenses and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Trust and the Servicer shall be entitled to
19
be reimbursed therefor only after payments to the Notes for the related Payment
Date. The Servicer's [or the Backup Servicer's] right to indemnity or
reimbursement pursuant to this Section shall survive any resignation or
termination of the Servicer [or the Backup Servicer] pursuant to Section 5.04 or
6.01 with respect to any losses, expenses, costs or liabilities arising prior to
such resignation or termination (or arising from events that occurred prior to
such resignation or termination). This paragraph shall apply to the Servicer [or
the Backup Servicer] solely in its capacity as Servicer [or the Backup Servicer]
hereunder and in no other capacities.
[Notwithstanding any provision to the contrary contained in this
Agreement, the parties hereto and the Noteholders and the Certificateholders
acknowledge and agree that the Backup Servicer is not assuming and shall not be
responsible or liable for any liabilities, obligations, losses, damages or
expenses (including reasonable attorneys' fees) arising from or related to (i)
any act or omission of the initial Servicer or any prior servicer in its
capacity as Servicer on or prior to the effective Service Transfer Date, (ii)
any act or omission of the Indenture Trustee, the initial Servicer, the
Originator, the Seller, the Depositor or the Issuer or any other party to this
Agreement prior to, on or following the Servicer Transfer Date, or (iii) any
breach or default by the initial Servicer, the Originator, the Seller, the
Depositor or the Indenture Trustee of their respective duties, obligations,
covenants, representations and warranties contained in this Agreement or in any
related document or agreement, whether such breach or default occurs or occurred
prior to, on or following the Service Transfer Date.]
[The parties hereto and the Noteholders and the Certificateholders
acknowledge that the Backup Servicer has agreed to be Backup Servicer for the
limited purpose of servicing the Assets, and that neither the Backup Servicer
nor any of its Affiliates provides any guarantee or assurance whatsoever
regarding the payment of the Notes or the Certificates in full, the timing of
payment of the Notes or the Certificates or the enforceability or collectability
of the Assets.]
Section 5.04. Servicer [and Backup Servicer] Not to Resign. Subject to the
provisions of Section 5.02, [neither] the Servicer [nor the Backup Servicer]
shall [not] resign from the obligations and duties hereby imposed on it except
(i) upon determination that the performance of its obligations or duties
hereunder are no longer permissible under applicable law or are in material
conflict by reason of applicable law with any other activities carried on by it
or its subsidiaries or Affiliates, the other activities of the Servicer [or the
Backup Servicer] so causing such a conflict being of a type and nature carried
on by the Servicer, [the Backup Servicer] or its subsidiaries or Affiliates at
the date of this Agreement, [or (ii) in the case of the Backup Servicer, upon a
default in payment of the fees and other amounts due and payable to the Backup
Servicer as provided in this Agreement, which default is not cured within 15
days following written notice thereof to the Indenture Trustee] or (iii) upon
satisfaction of the following conditions: (a) the Servicer [or the Backup
Servicer, as applicable], has proposed a successor servicer to the Indenture
Trustee in writing and such proposed successor servicer is reasonably acceptable
to the Indenture Trustee; and (b) each Rating Agency shall have delivered a
letter to the Indenture Trustee prior to the appointment of the successor
servicer stating that the proposed appointment of such successor servicer as
Servicer [or Backup Servicer, as applicable], hereunder will not result in the
reduction or withdrawal of the then current rating of any Class of the Notes;
provided, however, that no such resignation by the Servicer [or the Backup
Servicer] under (i) or (iii) above shall become effective until such successor
Servicer [or Backup Servicer] or, in the case of (i) above with respect to the
Servicer[, the Backup Servicer shall have assumed the
20
Servicer's responsibilities and obligations hereunder in accordance with this
Agreement or] the Indenture Trustee shall have designated a successor servicer
in accordance with Section 6.02. Any such resignation shall not relieve the
Servicer [or Backup Servicer] of responsibility for any of the obligations
specified in Sections 6.01 and 6.02 or this Article V as specified as
obligations that survive the resignation or termination of the Servicer [or the
Backup Servicer]. Any such determination permitting the resignation of the
Servicer [or Backup Servicer] pursuant to clause (i) above shall be evidenced by
an Opinion of Counsel to such effect delivered to the Indenture Trustee.
Section 5.05. Delegation of Duties. Neither the Servicer [nor the Backup
Servicer] may sell or assign its rights and duties as Servicer [or Backup
Servicer, as applicable], hereunder, except as expressly provided for herein,
provided that the Servicer may pledge or assign the right to receive all or any
portion of the Monthly Servicing Fee payable to it and/or reimbursements for
Outstanding Amounts Advanced and (without duplication) Nonrecoverable Advances.
Section 5.06. Rights of the Issuer in Respect of the Servicer. The
Servicer shall afford (and any Sub-Servicing Agreement shall provide that each
Sub-Servicer shall afford) the Issuer and the Indenture Trustee, upon reasonable
notice, during normal business hours, access to all records maintained by the
Servicer (and any such Sub-Servicer) in respect of the Servicer's rights and
obligations hereunder and access to officers of the Servicer (and those of any
such Sub-Servicer) responsible for such obligations. The Issuer may, but is not
obligated to, enforce the obligations of the Servicer under this Servicing
Agreement and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of the Servicer under this Servicing Agreement
or exercise the rights of the Servicer under this Servicing Agreement; provided
that the Servicer shall not be relieved of any of its obligations under this
Servicing Agreement by virtue of such performance by the Issuer or its designee.
The Issuer shall not have any responsibility or liability for any action or
failure to act by the Servicer and is not obligated to supervise the performance
of the Servicer under this Servicing Agreement or otherwise.
Section 5.07. Indemnification. The Servicer shall indemnify and hold
harmless the Trust, [the Backup Servicer], the Owner Trustee and the Indenture
Trustee and their officers, directors, agents and employees from and against any
loss, liability, expense, damage or injury suffered or sustained by reason of
such Servicer's willful misfeasance, bad faith or negligence in the performance
of its activities in servicing or administering the Contracts pursuant to this
Agreement, including, but not limited to, any judgment, award, settlement,
reasonable fees of counsel of its selection and other costs or expenses incurred
in connection with the defense of any actual or threatened action, proceeding or
claim related to the Servicer's willful misfeasance, bad faith or negligence.
Any such indemnification shall not be payable from the assets of the Trust. The
provisions of this indemnity shall run directly to and be enforceable by an
injured party subject to the limitations hereof. The provisions of this Section
5.07 shall survive termination of this Agreement.
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ARTICLE VI
DEFAULT
Section 6.01. Servicer Events of Default.
"Servicer Event of Default," wherever used herein, means any one of
the following events:
(a) (1) The failure by the Servicer to deposit in the Note Payment
Account any deposit required to be made under the terms of this Agreement which
continues unremedied for a period of one Business Day after the date upon which
written notice of such failure shall have been given to the Servicer by the
Indenture Trustee or to the Servicer and the Indenture Trustee by any
Noteholders of at least 25% of the aggregate Note Balances of the Notes;
(b) Failure on the Servicer's part duly to observe or perform in any
material respect any covenant or agreement in this Agreement (other than a
covenant or agreement which is elsewhere in this Section specifically dealt
with) which continues unremedied for 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Indenture Trustee or to the Servicer and the Indenture
Trustee by Noteholders of at least 25% of the aggregate Note Balances of the
Notes;
(c) 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;
(d) 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
(e) So long as the Originator is an affiliate of the Servicer, any
failure of the Originator, to repurchase, or substitute an Eligible Substitute
Asset for, any Asset as required by Section 2.03 of the Servicing Agreement and
Section 3.7(b) of the Asset Purchase Agreement, respectively.
Section 6.02. Transfer.
(a) If a Servicer Event of Default has occurred and is continuing,
either the Indenture Trustee or Noteholders of 51% or more of the aggregate Note
Balances of the Notes, by notice in writing to the Servicer (and to the
Indenture Trustee if given by the Noteholders) may terminate
22
all (but not less than all) of the Servicer's management, administrative,
servicing and collection functions as provided herein (such termination being
herein called a "Service Transfer"). On receipt of such notice (or, if later, on
a date designated therein), or upon resignation of the Servicer in accordance
with Section 5.04, all authority and power of the Servicer under this Agreement,
whether with respect to the Assets, the Asset Files or otherwise (except with
respect to the Collection Account, the transfer of which shall be governed by
Section 6.06), shall pass to and be vested in [the Backup Servicer] pursuant to
and under this Section 6.02; and, without limitation, [the Backup Servicer] is
authorized and empowered to execute and deliver on behalf of the Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments and
to do any and all acts or things necessary or appropriate to effect the purposes
of such notice of termination. The Servicer agrees to cooperate with [the Backup
Servicer] in effecting the termination of the responsibilities and rights of the
Servicer as provided hereunder, including, without limitation, the transfer to
[the Backup Servicer] for administration by it of all cash amounts which shall
at the time be held by the Servicer for deposit, or have been deposited by the
Servicer, in the Collection Account pursuant to Section 6.06, or for its own
account in connection with its services hereafter or thereafter received with
respect to the Assets. The Servicer shall be entitled to receive any other
amounts which are payable to the Servicer under this Agreement, at the time of
the termination of its activities as Servicer. The Servicer shall transfer to
the new servicer (i) the Servicer's records relating to the Assets in such
electronic form as the new servicer may reasonably request and (ii) any Assets,
Asset Files in the Servicer's possession. Any and all costs and expenses
incurred by [the Backup Servicer] in connection with the transfer of servicing
functions as provided herein, including, without limitation, the cost of
delivering the Assets and related files to [the Backup Servicer], shall be paid
by the initial Servicer within 10 days following invoice therefor, and to the
extent not paid in a timely manner, [the Backup Servicer] shall be reimbursed as
provided in clause (b) of this Section 6.02. The [Backup Servicer] shall not be
liable to and shall be held harmless by the Issuer, the Noteholders, the
Certificateholders, the Seller, the Originator, the Depositor, the Indenture
Trustee and the initial Servicer for any and all claims arising from or related
to (i) any missing or lost Assets, Asset Files or related documents or (ii) any
inaccurate, incomplete or missing information reasonably necessary for the
servicing of the Assets, which is not the direct result of the willful
misfeasance or negligence of [the Backup Servicer].
(b) [On or before the Closing Date the Servicer shall deposit into an
account (the "Reserve Account") maintained with the Indenture Trustee an amount
equal to $100,000. The Reserve Account shall not be a trust account. In the
event that, upon a Service Transfer, any and all costs and expenses incurred by
the Backup Servicer in connection with the transfer of servicing functions as
provided herein, including, without limitation, the cost of delivering the
Contracts and related files to the Backup Servicer, are not paid by the initial
Servicer within 10 days following invoice therefor, and to the extent not paid
in a timely manner, the Backup Servicer shall forward such invoice to the
Indenture Trustee and the Indenture Trustee shall reimburse the Backup Servicer
from amounts on deposit in the Reserve Account, to the extent of available
funds. If amounts on deposit in the Reserve Account are not sufficient therefor,
the Backup Servicer may reimburse itself for such costs and expenses from the
Collection Account. The Backup Servicer shall promptly notify the Indenture
Trustee upon reimbursement of all invoiced costs and expenses regardless of the
source of reimbursement. Upon the earlier to occur of (i) reimbursement to the
Backup Servicer of all invoiced costs and expenses incurred in connection with a
Service Transfer, or (ii) the final Payment Date with respect to the Notes, any
23
amounts on deposit in the Reserve Account shall be remitted to the initial
Servicer by the Indenture Trustee.]
Section 6.03. [Backup Servicer] to Act, Appointment of Successor. On and
after the time the Servicer receives a notice of termination pursuant to Section
6.02 or the resignation of the Servicer in accordance with Section 5.04, the
[Backup Servicer], upon two (2) Business Days' written notice from the Indenture
Trustee of such Service Transfer to the [Backup Servicer], shall be the
successor in all respects to the servicing rights, duties and responsibilities
of the Servicer (in its capacity as servicer under this Agreement) except as
provided herein which arise after the effective date of such Service Transfer
and the Servicer (except as provided herein) shall be relieved of such
responsibilities, duties and liabilities arising after such Service Transfer;
provided, however, that (i) the [Backup Servicer] shall not be liable for any
acts or omissions of the initial or any prior Servicer (or subservicer) accruing
prior to such Service Transfer or for any breach or default by the initial or
any prior Servicer, the Originator, the Seller, the Issuer or Indenture Trustee
of any of their respective obligations contained herein or in any related
document or agreement, and (ii) the initial or any prior Servicer shall remain
liable for any acts or omissions of such initial or prior Servicer occurring
prior to such Service Transfer or for any breach by the Servicer of any of its
obligations contained herein or in any related document or agreement. As
compensation therefor, the [Backup Servicer] shall be entitled to receive the
Monthly Servicing Fee. Furthermore, the [Backup Servicer] shall be entitled to
all rights of the Servicer in connection with its responsibilities under this
Agreement, including reimbursement rights for advances as provided herein and in
the Indenture. If the [Backup Servicer] is legally unable so to act, the
Indenture Trustee may appoint, or petition a court of competent jurisdiction to
appoint, an Eligible Servicer as the successor to the Servicer hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Servicer hereunder. Pending appointment of a successor to the Servicer
hereunder, the Servicer shall act in such capacity until a successor servicer
assumes such responsibilities, duties or liabilities. In connection with such
appointment and assumption, the [Backup Servicer] or the Indenture Trustee may
make such arrangements for the compensation of such successor out of payments on
Assets as it and such successor shall agree; provided, however, that no such
monthly compensation shall, without the written consent of 100% of the
Noteholders, exceed the Monthly Servicing Fee. The Indenture Trustee and the
[Backup Servicer] and such successor shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession as
provided herein. The [Backup Servicer] shall be entitled to rely upon the
representations, warranties and covenants made by the Originator, the Seller,
the Depositor, the Issuer, the Indenture Trustee, the Owner Trustee and the
initial Servicer set forth in this Agreement and any related document including
the Basic Documents, and the [Backup Servicer] shall be held harmless by the
Issuer, the Seller, the Originator, the Depositor, the Noteholders, the
Indenture Trustee and the initial Servicer, for any and all claims, liabilities,
obligations, losses damages, payments costs or expenses (including reasonable
attorneys' fees) of any kind whatsoever arising from or related to any breach,
inaccuracy, default or nonperformance of such representations, warranties or
covenants of the Issuer, the Seller, the Originator, the Indenture Trustee or
the Servicer as set forth herein or in any related document or agreement,
including the Basic Documents.
24
Section 6.04. Notification to Noteholders.
(a) Promptly following the occurrence of any Servicer Event of Default,
the Servicer shall give written notice thereof to the Indenture Trustee, the
[Backup Servicer], the Rating Agencies and the Noteholders at their respective
addresses appearing on the Note Register.
(b) Within ten days following any termination or appointment of a
successor to the Servicer pursuant to this Article VI, the Indenture Trustee
shall give written notice thereof to the Rating Agencies and the Noteholders at
their respective addresses appearing on the Note Register.
(c) The Indenture Trustee shall give written notice to the Rating
Agencies prior to the date upon which any Eligible Servicer (other than the
Indenture Trustee) is to assume the responsibilities of Servicer pursuant to
Section 6.03, naming such successor Servicer.
Section 6.05. Effect of Transfer.
(a) After the Service Transfer, the [Backup Servicer or] new Servicer
shall notify Obligors to make payments directly to the new Servicer that are due
under the Assets 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 Assets except as provided herein and the [Backup Servicer]
shall have all of such obligations except as provided herein and the replaced
Servicer will transmit or cause to be transmitted directly to the [Backup
Servicer] for its own account, promptly on receipt and in the same form in which
received, any amounts (properly endorsed where required for the [Backup
Servicer] to collect them) received as payments upon or otherwise in connection
with the Assets. In any event, the initial Servicer shall remain obligated to
fulfill its indemnity and hold harmless obligations following a Service Transfer
or termination of this Agreement.
(c) A Service Transfer shall not affect the rights and duties of the
parties hereunder (including but not limited to the indemnities of the Servicer
pursuant to Section 5.07) other than those relating to the management,
administration, servicing or collection of the Assets following the effective
Service Transfer. Upon and following a Servicer Transfer and commencement of
servicing by the [Backup Servicer], the initial Servicer shall have no further
rights to the Monthly Servicing Fee, other than any accrued and unpaid Monthly
Servicing Fee due to the initial Servicer as of such date [and the Backup
Servicer] shall have no further rights to the Monthly Backup Servicing Fee].
Section 6.06. Transfer of Collection Account. Notwithstanding the
provisions of Section 6.02, if the Collection Account shall be maintained with
the Servicer and a Servicer Event of Default shall occur and be continuing, the
Servicer shall, after five days' written notice from the Indenture Trustee, or
in any event within ten days after the occurrence of the Servicer Event of
Default, establish an Eligible Account with an institution other than the
Servicer and promptly transfer all funds in the Collection Account to such new
account, which shall thereafter be deemed the Collection Account for the
purposes hereof. Upon a Service Transfer, the
25
Collection Account shall be transferred to an Eligible Account as directed by
the successor Servicer.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment. This Servicing Agreement maybe amended from time
to time by the parties hereto, provided that any amendment be accompanied by a
letter from the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to the Notes or the rating
then assigned to the Notes, and the consent of the Indenture Trustee. None of
the Basic Documents shall be amended or modified so as to adversely affect the
rights or impose additional obligations upon the Servicer [or the Backup
Servicer] without the express written consent of both the Servicer [and the
Backup Servicer].
Section 7.02. GOVERNING LAW. THIS SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (EXCEPT SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.03. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if when
delivered to:
(a) in the case of the Servicer: Origen Servicing, Inc.
27777 South Franklin Road
Suite 1700
Southfield, Michigan 48034
Attention: Ronald A. Klein,
Mark Landschulz and
W. Anderson Geater
(b) in the case of the Backup Servicer:
(c) in the case of Rating Agencies:
26
(d) in the case of the Owner Trustee,
the Corporate Trust Office:
(e) in the case of the Issuer, to Origen
Manufactured Housing Contract
Trust 20__-__: Origen Servicing, Inc.
27777 South Franklin Road
Suite 1700
Southfield, Michigan 48034
Attention: Ronald A. Klein,
Mark Landschulz and
W. Anderson Geater
(f) in the case of the Indenture Trustee:
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party. Any notice required or permitted to be
mailed to a Noteholder shall be given by first class mail, postage prepaid, at
the address of such Noteholder as shown in the Note Register. Any notice so
mailed within the time prescribed in this Servicing Agreement shall be
conclusively presumed to have been duly given, whether or not the Noteholder
receives such notice. Any notice or other document required to be delivered or
mailed by the Indenture Trustee to any Rating Agency shall be given on a
reasonable efforts basis and only as a matter of courtesy and accommodation and
the Indenture Trustee shall have no liability for failure to deliver such notice
or document to any Rating Agency.
Section 7.04. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Servicing Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Servicing Agreement and shall in no way
affect the validity or enforceability of the other provisions of this Servicing
Agreement or of the Notes or the rights of the Noteholders thereof.
Section 7.05. Third-Party Beneficiaries. This Servicing Agreement will
inure to the benefit of and be binding upon the parties hereto, the Noteholders,
the Owner Trustee, the Indenture Trustee and their respective successors and
permitted assigns. Except as otherwise provided in this Servicing Agreement, no
other Person shall have any right or obligation hereunder. The Indenture Trustee
shall have the right to exercise all rights of the Issuer under this Servicing
Agreement.
27
Section 7.06. Counterparts. This instrument maybe executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
Section 7.07. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 7.08. Termination. The respective obligations and responsibilities
of the Servicer (and Backup Servicer) and the Issuer created hereby shall
terminate (except as provided herein) upon the satisfaction and discharge of the
Indenture pursuant to Section 4.10 thereof.
Section 7.09. No Petition. The Servicer, by entering into this Servicing
Agreement, hereby covenants and agrees that it will not at any time institute
against the Issuer, or join in any institution against the Issuer, any
bankruptcy proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations of the Issuer. This section shall
survive the termination of this Servicing Agreement by one year.
Section 7.10. No Recourse. The Servicer acknowledges that no recourse
maybe had against the Issuer, except as may be expressly set forth in this
Servicing Agreement.
Section 7.11. Indenture Trustee Rights. The Indenture Trustee shall be
entitled to the same rights, protections, indemnities and immunities afforded to
it under the Indenture as if specifically set forth herein.
ARTICLE VIII
DUTIES OF THE SERVICER AS ADMINISTRATOR
Section 8.01. Administrative Duties.
(a) Duties with Respect to the Indenture. The Servicer as administrator
(the "Administrator") shall perform all its duties and the duties of the Issuer
under the Indenture. In addition, the Administrator shall consult with the Owner
Trustee as the Administrator deems appropriate regarding the duties of the
Issuer under the Indenture. The Administrator shall monitor the performance of
the Issuer and shall advise the Owner Trustee when action is necessary to comply
with the Issuer's duties under the Indenture. The Administrator shall prepare
for execution by the Issuer or shall cause the preparation by other appropriate
Persons of all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Issuer to prepare, file or deliver
pursuant to the Indenture. In furtherance of the foregoing, the Administrator
shall take all necessary action that is the duty of the Issuer to take pursuant
to the Indenture.
(b) Duties with Respect to the Issuer.
(i) In addition to the duties of the Administrator set forth in
this Servicing Agreement or any of the Basic Documents, the Administrator
shall perform such calculations and shall prepare for execution by the
Issuer or the Owner Trustee or shall
28
cause the preparation by other appropriate Persons of all such documents,
reports, filings, instruments, certificates and opinions as it shall be
the duty of the Issuer or the Owner Trustee to prepare, file or deliver
pursuant to this Servicing Agreement or any of the Basic Documents or
under state and federal tax and securities laws (including, but not
limited to, UCC filings in applicable jurisdictions and annual compliance
certificates, if any), and shall take all appropriate action that it is
the duty of the Issuer to take pursuant to this Servicing Agreement or any
of the Basic Documents. In accordance with the directions of the Issuer or
the Owner Trustee, the Administrator shall administer, perform or
supervise the performance of such other activities in connection with the
Notes (including the Basic Documents) as are not covered by any of the
foregoing provisions and as are expressly requested by the Issuer, the
Indenture Trustee or the Owner Trustee.
(ii) In carrying out the foregoing duties or any of its other
obligations under this Servicing Agreement, the Administrator may enter
into transactions with or otherwise deal with any of its Affiliates;
provided, however, that the terms of any such transactions or dealings
shall be in accordance with any directions received from the Issuer and
shall be, in the Administrator's opinion, no less favorable to the Issuer
in any material respect than with terms made available to unrelated third
parties.
(c) Tax Matters. The Administrator shall prepare and file on behalf of
the Owner Trustee or the Issuer, all tax returns (if any) and information
reports, tax elections and such annual or other reports of the Issuer as are
necessary for preparation of tax returns and information reports as provided in
Section 5.03 of the Trust Agreement, other than each Form 1 099 which shall be
prepared by the Indenture Trustee.
(d) Non-Ministerial Matters. With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the Administrator
shall not take any action pursuant to this Article V in unless within a
reasonable time before the taking of such action, the Administrator shall have
notified the Owner Trustee and the Indenture Trustee of the proposed action and
the Owner Trustee and, with respect to items (A), (B), (C) and (D) below, the
Indenture Trustee shall not have withheld consent or provided an alternative
direction. For the purpose of the preceding sentence, "non-ministerial matters"
shall include:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against the
Issuer (other than in connection with the collection of the Assets);
(C) the amendment, change or modification of this Servicing
Agreement or any of the Basic Documents to which the Indenture Trustee or
the Owner Trustee, as applicable, is a party;
(D) the appointment of successor Certificate Paying Agents and
successor Indenture Trustees pursuant to the Indenture or the appointment
of successor Servicers or the consent to the assignment by the Certificate
Registrar, Paying Agent or Indenture Trustee of its obligations under the
Indenture; and
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(E) the removal of the Indenture Trustee.
(e) Servicer shall act as Administrator. By execution of this Agreement,
the Servicer agrees to be bound as Administrator and shall perform the
obligations of the Administrator as described herein. Notwithstanding any
provision to the contrary contained herein or otherwise, the Backup Servicer
shall not assume any obligations or responsibilities as the "Administrator" as
contemplated by this Agreement [even in the event the Backup Servicer succeeds
to the servicing rights and responsibilities as provided in Section 6.02 and/or
6.03 hereof]. Upon the occurrence of a Service Transfer, the Servicer shall
continue to act as "Administrator" hereunder unless a successor Administrator is
appointed by 1 00% of the holders of the Owner Trust Certificates and notice of
such appointment is promptly given to the [Backup Servicer and the] Indenture
Trustee.
Section 8.02. Records. The Administrator shall maintain appropriate books
of account and records relating to services performed under this Servicing
Agreement, which books of account and records shall be accessible for inspection
by the Issuer, the Indenture Trustee and the Owner Trustee at any time during
normal business hours.
Section 8.03. Additional Information to be Furnished. The Administrator
shall furnish to the Issuer, the Indenture Trustee and the Owner Trustee from
time to time such additional information regarding the Assets and the Notes as
the Issuer, the Indenture Trustee or the Owner Trustee shall reasonably request.
Section 8.04. No Recourse to Owner Trustee. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and delivered
by [________________________], not individually or personally, but solely as
Owner Trustee of Origen Manufactured Housing Contract Trust 20__-__, in the
exercise of the powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as personal representations, undertakings and
agreements by [________________________] but is made and intended for the
purpose for binding only the Issuer, (c) nothing herein contained shall be
construed as creating any liability of [________________________], individually
or personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
and by any Person claiming by, through or under the parties hereto and (d) under
no circumstances shall [________________________] be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Agreement or any other related documents.
Section 8.05. Exchange Act Reporting.
(a) The Administrator shall prepare or cause to be prepared on behalf of
the Trust any Forms 8-K and 10-K customary for similar securities as required by
the Exchange Act and the Rules and Regulations of the Securities and Exchange
Commission thereunder, and the Administrator shall sign (or shall cause another
entity acceptable to the Securities and Exchange Commission to sign) and the
Administrator shall file or cause to be filed (via the Securities and Exchange
Commission's Electronic Data Gathering and Retrieval System) such forms on
behalf
30
of the Depositor or the Issuer (or such other entity). The Depositor and the
Issuer hereby grant to the Administrator a limited power of attorney to execute
any Form 8-K and file each such document on behalf of the Depositor and the
Issuer. Such power of attorney shall continue until the earlier of (i) receipt
by the Servicer from the Depositor and the Issuer of written termination of such
power of attorney and (ii) the termination of the Trust. Notwithstanding
anything herein to the contrary, the Administrator, and not the Servicer, shall
be responsible for executing each Form 10-K filed on behalf of the Trust.
(b) Each Form 8-K shall be filed by the Administrator or its delegatee
within 15 days after each Payment Date, with a copy of the statement to the
Noteholders for such Payment Date as an exhibit thereto. Prior to March 30th of
each year (or such earlier date as may be required by the Exchange Act and the
Rules and Regulations of the Securities and Exchange Commission), beginning in
20__, the Administrator shall file (or cause to be filed) a Form 10-K, in
substance as required by applicable law or applicable Securities and Exchange
Commission staffs interpretations. Such Form 10-K shall include as exhibits the
Servicer's annual statement of compliance described under Section 3.15 and the
accountant's report described under Section 3.16, in each case to the extent
they have been timely delivered to the Administrator. If they are not so timely
delivered, the Administrator shall file (or cause to be filed) an amended Form
10-K including such documents as exhibits reasonably promptly after they are
delivered to the Administrator. The Administrator shall have no liability with
respect to any failure to properly prepare or file such periodic reports
resulting from or relating to the Administrator's inability or failure to obtain
any information not resulting from its own negligence or willful misconduct. The
Form 10-K shall also include a certification in the form attached hereto as
Exhibit C-l (the "Certification"), which shall be signed by the senior officer
of the Administrator.
(c) Upon any filing with the Securities and Exchange Commission, the
Administrator shall promptly deliver to the Issuer a copy of any executed
report, statement or information.
(d) Prior to January 30 of the first year in which the Administrator is
able to do so under applicable law, the Administrator shall file (or cause to be
filed) a Form 15 Suspension Notification with respect to the Trust.
31
IN WITNESS WHEREOF, the Servicer, the Issuer, [the Backup Servicer]
and the Indenture Trustee have caused this Servicing Agreement to be duly
executed by their respective officers or representatives all as of the day and
year first above written.
ORIGEN SERVICING, INC.,
as Servicer
By:_____________________________
Name:
Title:
ORIGEN MANUFACTURED HOUSING
CONTRACT TRUST 20__-___, as Issuer
By: [________________], not in its
individual capacity, but solely as Owner Trustee
By:_____________________________
Name:
Title:
[________________________], as Indenture Trustee
By:_____________________________
Name:
Title:
[[________________________], as Backup Servicer]
By:_____________________________
Name:
Title:
Acknowledged and agreed with respect to
Section 2.03 hereof:
ORIGEN FINANCIAL L.L.C., as Originator
By:_____________________________
Name:
Title:
2
EXHIBIT A-1
LIST OF CONTRACTS
(Filed Manually)
(In accordance with Rule 202 of Regulation S-T, this List of Contracts is being
filed in paper pursuant to a continuing hardship exemption.)
EXHIBIT A-2
MORTGAGE LOAN SCHEDULE
EXHIBIT B
FORM OF CERTIFICATE REGARDING REPURCHASED ASSETS
ORIGEN FINANCIAL L.L.C.
CERTIFICATE REGARDING REPURCHASED ASSETS
The undersigned certifies that he is a [title] of Origen Financial
L.L.C., a Delaware limited liability company (the "Company"), and that as such
he is duly authorized to execute and deliver this certificate on behalf of the
Company pursuant to Section 2.03 of the Servicing Agreement, dated as of
____________________, 20___ (the "Agreement"), among Origen Servicing, Inc.,
Origen Manufactured Housing Trust 20__-__, [________________________ as backup
servicer (the "Backup Servicer")] and [________________________], as indenture
trustee (the "Indenture Trustee") (all capitalized terms used herein without
definition having the respective meanings specified in the Indenture (the
"Indenture"), dated as of ________________, 20__, between Origen Manufactured
Housing Contract Trust [20__-__] (the "Issuer") and the Indenture Trustee), and
further certifies that:
1. The Assets on the attached schedule are to be repurchased by
the Company on the date hereof pursuant to Section 2.03 of the Agreement.
2. Upon deposit of the Repurchase Price for such Assets, such
Assets may, pursuant to Section 2.03 of the Agreement, be assigned by the
Indenture Trustee to the Company.
IN WITNESS WHEREOF, I have affixed hereunto my signature this _____
day of_____________, ______.
ORIGEN FINANCIAL L.L.C.
By:_________________________
[Name]
[Title]
EXHIBIT C-1
FORM OF CERTIFICATION TO BE PROVIDED BY
THE ADMINISTRATOR WITH FORM 10-K
Re: Origen Manufactured Housing Contract Trust 20__-__ (the
"Trust" or the "Issuer") Manufactured Housing Contract Trust
Notes, Series 20__-__
I, [identify the certifying individual], the senior officer of
Origen Servicing, Inc., the Administrator for Origen Manufactured Housing
Contract Trust [20__-__] (the "Registrant"), certify that:
1. I have reviewed this annual report on Form 10-K, and all
reports on Form 8-K containing distribution and servicing reports filed in
respect of periods included in the year covered by this annual report, of
Registrant;
2. Based on my knowledge, the information in these reports, taken
as a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;
3. Based on my knowledge, the distribution information required
to be provided by the Indenture Trustee under the Indenture, and the servicing
information required to be provided to the Indenture Trustee by the Servicer
under the Servicing Agreement for inclusion in these reports, is included in
these reports;
4. Based on my knowledge and upon the annual compliance
statements included in the report and required to be delivered to the Indenture
Trustee in accordance with the terms of the Servicing Agreement, and except as
disclosed in the reports, the Servicer has fulfilled its obligations under the
Servicing Agreement; and
5. The reports disclose all significant deficiencies relating to
the servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a review
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
or similar procedure, as set forth in the servicing, or similar, agreement, that
is included in these reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the Indenture Trustee and the Servicer.
Capitalized terms used but not defined herein have the meanings
ascribed to them in Appendix A to the Indenture, dated ___________________,
20___ (the "Indenture"), between Origen Manufactured Housing Contract Trust
20__-__, as issuer, and [____________________________], as indenture trustee.
[ADMINISTRATOR]
By:_______________________________
Name:
Title:
Date:
2
EXHIBIT C-2
FORM OF CERTIFICATION TO BE PROVIDED
TO THE ADMINISTRATOR BY THE INDENTURE TRUSTEE
Re: Origen Manufactured Housing Contract Trust 20__-__ (the
"Trust" or the "Issuer") Manufactured Housing Contract Trust
Notes, Series 20__-__
I, [identify the certifying individual], a [title] of
[__________________________], as Indenture Trustee, hereby certify to Origen
Servicing, Inc. (the "Administrator"), and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
To date, the information and statements required to be provided by
the Indenture Trustee pursuant to Section 7.05 of the Indenture have been
provided and, taken as a whole and based on the information provided to the
Indenture Trustee by the Servicer (as to which provided information we make no
representation), do not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
date of each of such statements.
Capitalized terms used but not defined herein have the meanings
ascribed to them in Appendix A to the Indenture, dated ______________, 20__ (the
"Indenture"), between Origen Manufactured Housing Contract Trust 20__-__, as
issuer, and [________________________], as indenture trustee.
[_______________________], as Indenture
Trustee
By:_____________________________________
Name:
Title:
Date:
EXHIBIT C-3
FORM OF CERTIFICATION TO BE PROVIDED
TO THE ADMINISTRATOR BY THE SERVICER
Re: Origen Manufactured Housing Contract Trust 20__-__ (the
"Trust" or the "Issuer") Manufactured Housing Contract Trust
Notes, Series 20__-__
I, [identify the certifying individual], a [title] of Origen
Servicing, Inc., as Servicer, hereby certify to Origen Servicing, Inc. (the
"Administrator"), and its officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification, that:
1. I have reviewed this annual report on Form 10-K, and all
reports on Form 8-K containing distribution or servicing reports filed in
respect of periods included in the year covered by this annual report, of the
above referenced trust (the "Registrant");
2. Based on my knowledge, the information provided by the
Servicer to the Indenture Trustee for inclusion in these reports, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;
3. Based on my knowledge, the servicing information required to
be provided to the Indenture Trustee by the servicer under the servicing, or
similar, agreement for inclusion in these reports is included in these reports;
4. I am responsible for reviewing the activities performed by the
servicer under the servicing, or similar, agreement and based upon my knowledge
and the annual compliance review required under that agreement, and except as
disclosed in the reports, the servicer has fulfilled its obligations under that
agreement; and
5. The reports disclose all significant deficiencies relating to
the servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a review
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
as set forth in the servicing, or similar, agreement, that is included in these
reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [the Indenture
Trustee and Sub-Servicers]
Date:
___________________________
[Signature]
[Title]
[Company]
EXHIBIT D
OFFICER'S CERTIFICATE
REGARDING ANNUAL STATEMENT OF COMPLIANCE
_________________ Trust Notes, Series 20__-___
I, _________________, hereby certify that I am a duly appointed
____________________________ of ____________________________ (the "[Servicer]"),
and further certify as follows:
1. This certification is being made pursuant to the terms of the
Servicing Agreement, dated as of ___________, ______ (the "Servicing
Agreement"), among ________________, as issuer, the [Servicer], as [servicer]
and ____________________, as indenture trustee.
2. I have reviewed the activities of the [Servicer] during the
preceding year and the [Servicer's] performance under the Servicing Agreement
and to the best of my knowledge, based on such review, the [Servicer] has
fulfilled all of its obligations under the Servicing Agreement throughout the
year.
Capitalized terms not otherwise defined herein have the meanings set
forth in the Servicing Agreement.
Dated:
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of ________________________.
By:_____________________________________
Name:
Title:
I, ______________________, a (an) _________________ of the
[Servicer], hereby certify that ____________________________ is a duly elected,
qualified, and acting ___________________________________ of the [Servicer] and
that the signature appearing above is his/her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of ________________________.
By:_____________________________________
Name:
Title:
2